WES ADAMS v. STATE OF MONTANA (2024)

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2 Wes Adams appeals from the August 23, 2023 order denying his petition for postconviction relief. We affirm.

¶3 On September 6, 2006, Adams was charged with Assault on a Peace Officer, in violation of § 45-5-210(1)(b), MCA. On April 30, 2007, Adams pleaded guilty to Criminal Endangerment, in violation of § 45-5-207, MCA. On June 18, 2007, the District Court imposed a suspended sentence.

¶4 On June 30, 2008, Adams filed a pro se petition for postconviction relief, pursuant to § 46-21-101, MCA. Adams alleged, among other things, ineffective assistance of counsel (IAC) and that the State illegally withheld exculpatory evidence. The petition and supporting affidavit both noted that Adams believed the arresting officer had been charged with “stealing” or tampering with evidence in an unrelated case.¹ The State filed a response, but the District Court never ruled on the petition. In subsequent years, the court revoked Adams’ probation several times. The issue regarding the 2008 Petition was apparently never raised.

¶5 In 2022, with the assistance of counsel, Adams filed a second petition for postconviction relief, raising the same claims as in 2008. The District Court first noted that Adams’ 2008 Petition was untimely filed and then denied his 2022 Petition, adopting the State's authority and rationale in full. Adams appeals from that ruling.

¶6 Adams first argues that the District Court did not have jurisdiction because § 46-21-101, MCA, requires a petition for postconviction relief be filed with “the court that imposed the sentence,” and his Petition was assigned to a different judge than the one that sentenced him. See also Jordan v. State, 2007 MT 165, ¶¶ 11–12, 338 Mont. 113, 162 P.3d 863. We held in Jordan that Jordan's petition for postconviction relief should have been assigned to the original judge that sentenced him, not because of a lack of jurisdiction, but because that judge had the most familiarity with the underlying criminal case. Jordan, ¶¶ 9, 12. We noted that nothing in the record in Jordan indicated that the sentencing judge was unavailable to preside over Jordan's postconviction proceedings. Jordan, ¶ 12. Here, however, Judge McNeil presided over Adams’ sentencing in 2007. We take judicial notice that retired Judge McNeil passed away in 2017. As such, he was unavailable to preside over Adams’ 2022 Petition. Because the rule in Jordan serves judicial efficiency rather than any jurisdictional limits, it was not error for the court to assign a new judge to Adams’ Petition when Judge McNeil was unavailable.

¶7 Adams next argues, and the State concedes, the District Court's finding the 2008 Petition untimely was in error. Section 46-21-102, MCA, requires a petition for postconviction relief be filed within one year of the date the conviction becomes final, which, here, was “when the time for appeal to the Montana supreme court expires.” Adams had 60 days to appeal after the judgment was entered in his case, at which point the one-year clock starts to run under § 46-21-102, MCA. M. R. App. P. 4(5)(b)(i). The District Court erred in finding that Adams’ 2008 Petition was untimely filed.

¶8 Adams’ arguments about IAC and the State's failure to disclose evidence both stem from the same facts. Adams alleges that he has newly discovered evidence that the officer he was accused of assaulting committed a felony and was fired as an officer before trial, that his counsel was ineffective for failing to investigate this, and that the State committed a Brady ² violation by failing to disclose this evidence.

¶9 However, Adams averred that before he pleaded guilty to criminal endangerment, a clerk of the district court told him this information. Moreover, his petition memo notes he discussed that fact with his attorney before entering his guilty plea and receiving a suspended sentence. For postconviction relief, Adams must establish, among other things, that he “did not possess the evidence nor could he have obtained it with reasonable diligence” prior to trial. State v. Giddings, 2009 MT 61, ¶ 48, 349 Mont. 347, 208 P.3d 363 (internal quotation omitted). Adams’ own affidavit belies his claims—both in 2008 and 2022—that he has “newly discovered evidence.”

¶10 Additionally, Adams’ 2022 Petition points to records that confirm that the officer he was accused of assaulting was no longer a police officer when he pleaded guilty. He argues that the records “confirmed what the court clerk told Mr. Adams about [the officer] being convicted of theft.” However, these records are cumulative of the evidence Adams already had and do not meet the standard for newly discovered evidence. See Beach v. State, 2009 MT 398, ¶ 47, 353 Mont. 411, 220 P.3d 667. Adams does not meet the burden of establishing newly discovered evidence. See State v. Clark, 2005 MT 330, 330 Mont. 8, 125 P.3d 1099.

¶11 Claims based on IAC are evaluated under a two-part test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). The defendant bears the burden of showing: (1) counsel's performance was deficient, and (2) the deficient performance was prejudicial. State v. Edwards, 2011 MT 210, ¶ 22, 361 Mont. 478, 260 P.3d 396. Failure of either prong is fatal to an IAC claim. Edwards, ¶ 22. There is a presumption that counsel's performance was adequate, and the petitioner bears the burden of overcoming the presumption. State v. Henderson, 2004 MT 173, ¶ 5, 322 Mont. 69, 93 P.3d 1231. “In the context of a guilty plea, a petitioner establishes prejudice by showing that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Henderson, ¶ 9. In other words, “do we remain confident that a reasonable defendant in [Adams’] shoes, with the benefit of counsel's diligent investigation of facts ․ would have pleaded guilty anyway ․ ?” Henderson, ¶ 15.

¶12 Adams has not overcome the presumption of his lawyer's competence nor established prejudice. Adams does not even assert that he would have insisted on going to trial had counsel confirmed the information Adams already knew about the officer. Rather, he asserts that “this information would [have] damage[d] his credibility as a witness to testify as a witness against me” and would “dramatically improve plea negotiations.” We remain confident that a reasonable defendant with the benefit of counsel's investigation of these facts would have pleaded guilty anyway.

¶13 Adams was charged with Assault on a Peace Officer after allegedly running the officer off the road. The State also sought a persistent felony offender (PFO) status, which carried with it a minimum term of five years in state prison and a maximum of 100 years. A full investigation of the circumstances surrounding the officer's conviction would have shown that the officer was charged with, and pleaded guilty to, misdemeanor theft for purchasing a generator that he knew or should have known was stolen. Given the unrelated charges, counsel likely would have concluded that this information would have damaged the officer's credibility minimally at best. There is also no argument that Adams could not have been convicted of Assault on a Peace Officer as the officer was a peace officer at the time of the offense. A reasonable defendant still would have pleaded guilty given that the plea agreement: (1) eliminated the possibility of a PFO designation with a mandatory minimum of five years in state prison; (2) reduced the Assault on a Peace Officer charge, with a mandatory minimum of two years in state prison, to Criminal Endangerment, with no mandatory minimum; and (3) provided a suspended sentence with credit for the time Adams had already served. Adams has not shown that counsel's alleged failure to investigate was outside the range of reasonable professional assistance or that it prejudiced him. The IAC claim fails.

¶14 Adams includes an additional issue regarding a lack of hearing in his statement of the issues. However, he does not develop the argument in his brief. See M. R. App. P. 12(1)(g). “It is not this Court's obligation to develop arguments on a party's behalf.” State v. Bomar, 2008 MT 91, ¶ 19, 342 Mont. 281, 182 P.3d 47. We decline to address this issue further.

¶15 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review.

¶16 Affirmed.

FOOTNOTES

1.   The petition was also supported by a well-written, but not quite on point, memorandum.

2.   Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).

MIKE McGRATH

We Concur: JAMES JEREMIAH SHEA INGRID GUSTAFSON BETH BAKER JIM RICE