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RICE v. STATE (2022)

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Supreme Court of Montana.

Cecil Thomas RICE, Petitioner and Appellant, v. STATE of Montana, Respondent and Appellee.

DA 21-0319

Decided: April 05, 2022

For Appellant: Cecil Thomas Rice, Self-Represented, Deer Lodge, Montana For Appellee: Austin Knudsen, Montana Attorney General, Tammy K. Plubell, Assistant Attorney General, Helena, Montana, Travis Ahner, Flathead County Attorney, John Donovan, Deputy County Attorney, Kalispell, Montana

¶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 In 2017, a Flathead County jury convicted Appellant Cecil Rice of deliberate homicide for pushing a man off a bridge. The District Court sentenced him to 70 years in prison. Rice appealed his conviction to this Court with a claim that his trial counsel had been ineffective. We affirmed the conviction in January 2020. See State v. Rice, No. DA 18-0159, 2020 MT 6N, 2020 Mont. LEXIS 127, 2020 WL 205477.

¶3 In 2021, Rice petitioned the District Court for postconviction relief. He again cited ineffective assistance of counsel, and he argued that nine different grounds besides the attorney error he alleged on appeal in 2019 should warrant a new trial. He also alleged that his appellate counsel in 2019 was ineffective for not raising these additional grounds then. The first attorney error that Rice claimed regarded his impression that the jury pool was biased against him. Because nearly all prospective jurors had heard about the newsworthy case, Rice argued that his attorney should have moved for a change of venue.

¶4 The District Court analyzed this and all of Rice's other allegations about deficient representation, and the District Court issued an order on May 26, 2021, dismissing Rice's petition with prejudice. The District Court concluded that each of Rice's alleged errors by trial counsel either were not supported by the record, were not in fact errors, or were not the sort of decisions that could rise to ineffective assistance of counsel. Rice appeals.

¶5 On appeal, Rice focuses only on a theory about a biased jury. Rice also changes his argument for why his counsel was ineffective. Rather than suggesting his attorney should have moved for a change of venue, Rice now asserts that his attorney should have challenged prospective jurors for cause because of their having heard about the case. Rice also notes that one juror had once served on a volunteer board with one of the prosecutors, although she asserted that she could judge the case impartially, and that another juror was friends with a prosecutor's parents, although that juror made the same assertion. Rice argues that his attorney rendered ineffective assistance by not moving to strike these jurors for cause. This is the first time Rice has raised this argument; he did not raise it in his 2019 direct appeal or in the postconviction petition he now appeals from the District Court.

¶6 Section 46-21-105(1)(a), MCA, requires a petitioner for postconviction relief to raise “all grounds for relief claimed” in the petition filed in district court. “ ‘[G]rounds for relief’ includes all legal and factual issues that were or could have been raised in support of the petitioner's claim for relief.” Section 46-21-105(3), MCA. This Court will not review issues raised for the first time on appeal. Raising a new ground for relief is “barred as a matter of procedure.” Fletcher v. State, 2013 MT 266, ¶¶ 9-10, 372 Mont. 22, 309 P.3d 998. Consequently, we are unable to address Rice's new argument in this appeal. He has waived it by failing to present it in the earlier proceedings.

¶7 Furthermore, this Court will decline to address arguments that a party raised in the original petition but did not address on appeal. See, e.g., Ford v. State, 2005 MT 151, ¶ 35, 327 Mont. 378, 114 P.3d 244 (finding that “we have no occasion to review the District Court's decision” when the appellant abandoned certain contentions on appeal); Skinner v. Allstate Ins. Co., 2005 MT 323, ¶ 9, 329 Mont. 511, 127 P.3d 359 (noting that after a party did not brief certain issues on appeal, “[t]hose issues, therefore, have been abandoned on appeal, and we do not address them”). Here, by focusing solely on a novel theory never argued below, Rice has abandoned the numerous other ineffective assistance grounds that he raised before the District Court. Rice's appeal here presents no basis for this Court to overturn the District Court's analysis and dismissal of his petition for postconviction relief.

¶8 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.

¶9 The District Court's May 26, 2021 dismissal order is affirmed.

Chief Justice Mike McGrath delivered the Opinion of the Court.


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