STATE of Montana, Plaintiff and Appellee, v. Mark Shane HANSEN, Defendant and Appellant.
¶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 Mark Hansen appeals following a conviction of one count of incest at a jury trial in Montana’s Fourth Judicial District Court, alleging (1) ineffective assistance of counsel and (2) imposition of an illegal sentence. We affirm.
¶3 On October 9, 2014, the State charged Hansen with one count of incest pursuant to § 45-5-507, MCA, a felony.1 In November 2015, Hansen retained private counsel shortly before the trial date of December 9, 2015. Hansen’s counsel requested the trial be continued because he was unprepared. The District Court continued the trial to March 2016.
¶4 In February 2016, Hansen’s counsel submitted a pretrial witness list which included Michelle Hansen, the victim’s mother. However, counsel never served Michelle with a subpoena to testify. At the final pretrial conference, Hansen’s counsel alleged that the victim had made false allegations against other individuals and requested a Mazurek hearing.2 Hansen’s counsel was unprepared to call any witnesses at that time and the court reset the trial for August 2016. The trial was subsequently continued multiple times. In June 2017, Hansen’s counsel was provided a Mazurek hearing but he did not provide any witnesses to testify the victim had made prior false allegations.
¶5 On June 27, 2017, the case proceeded to trial. At the beginning of trial, Hansen’s counsel moved to exclude witnesses and the State instructed its witnesses, except for the victim, to stay out of the courtroom. During the State’s case-in-chief, the jury heard testimony from several witnesses. The victim provided details of the sexual abuse. The State then called Michelle, who provided largely historical information consistent with the victim’s, corroborating the existence of two of the sex toys Hansen allegedly used during the abuse.3 Michelle did not leave the courtroom after testifying.
¶6 A friend of the victim testified, confirming the victim’s account of a sexually explicit text message sent from Hansen and that the victim had told her that Hansen had raped her. The friend also testified that she accompanied the victim to Planned Parenthood for a pregnancy test following the assault. The victim’s ex-boyfriend testified that Hansen told him his connection with the victim was “special.” He further testified that the victim did not want to be around Hansen and that she routinely had nightmares as a result of the abuse. The State then called two experts, one who recounted the results of a vaginal examination she conducted on the victim and an expert who did not interview the victim but testified about common characteristics and responses of sexual abuse victims.
¶7 After resting its case, the State learned that defense counsel planned to call Michelle. Hansen’s counsel explained that he wanted to use Michelle to rebut the victim’s testimony regarding the use of condoms. The court ruled that the defense could not call a witness who had been in the courtroom because the defense had made a motion to exclude witnesses. Consequently, the only witness Hansen called was an officer who was questioned about collection of evidence from the victim’s home and electronic devices. After three days of trial, the jury convicted Hansen of incest.
¶8 Prior to sentencing, a probation officer interviewed Hansen and prepared a Presentence Investigation Report (“PSI”). The PSI author determined that Hansen used his divorce from Michelle as “basically a defense” to create a motive as to why the victim would make these allegations. The PSI also stated that Hansen assumed no accountability for his actions. The PSI report concluded that Hansen posed a safety risk based on his lack of remorse and recommended a sentence of 50 years in prison with 20 years suspended and a 30-year parole restriction.4
¶9 At the September 19, 2017 sentencing hearing, the victim testified that Hansen should be sentenced to prison to punish him for his abuse and to receive treatment. The State explained that the mandatory minimum 25-year parole restriction in the current statute did not apply to Hansen because it was not in effect when the victim was young enough for it to apply. The State proposed a 50-year prison sentence with a parole restriction for 30 years and no time suspended.
¶10 Hansen was afforded an opportunity to address the court before announcing the sentence. Hansen said he had a lot to say and did not know where to begin. The court interrupted Hansen, warning him that while he had a constitutional right to remain silent, the evidence reflected beyond a reasonable doubt that Hansen committed the abuse. Hansen questioned whether he should even say anything if the judge had made up his mind. The court responded that he could continue but wanted to give him a “fair warning.” Hansen proceeded, providing an excuse as to why the victim made the allegations and denying sexual relations with the victim. The court told Hansen that it was still convinced, beyond a reasonable doubt, that he committed the abuse.
¶11 The court then discussed the sentencing policies of the State—to punish the offender, protect the public, provide restitution, and to provide opportunities for the offender’s rehabilitation. The court imposed a 50-year prison sentence, suspending all but 15 years of the sentence, and ordered Hansen to complete phases 1 and 2 of sexual offender treatment before becoming parole eligible. The court summarized that it balanced all the information before it in crafting the sentence, including the testimony from the victim and her request, the request of the State, the PSI, the Montana statutes, and Hansen’s lack of responsibility or remorse. Hansen now appeals.
¶12 Hansen argues (1) that his counsel was ineffective, prejudicing his right to a fair trial, and (2) that the court imposed an illegal sentence by considering his refusal to admit guilt.
¶13 Ineffective assistance of counsel claims are mixed questions of law and fact which this Court reviews de novo. State v. Racz, 2007 MT 244, ¶ 13, 339 Mont. 218, 168 P.3d 685. We review a criminal sentence for its legality, determining whether the sentencing court had statutory authority to impose the sentence, whether the sentence is within statutory parameters, and whether the court adhered to the affirmative mandates of the applicable sentencing statutes. State Hinshaw, 2018 MT 49, ¶ 7, 390 Mont. 372, 414 P.3d 271.
¶14 Hansen argues that defense counsel was deficient because he failed to serve Michelle with a compulsory subpoena, failed to fully question her on the witness stand during the State’s case, and failed to ensure that she was excluded from the courtroom after her testimony on behalf of the State. Hansen further argues that the failure to secure Michelle as a witness undermined the fairness of the trial because Hansen was left with no defense to counter the testimony against him.
¶15 The Sixth and Fourteenth Amendments to the United States Constitution and Article II, Section 24, of the Montana Constitution guarantee the accused the right to counsel in criminal prosecutions. In order to analyze ineffective assistance of counsel claims, the defendant must show: (1) counsel’s performance was deficient and (2) the deficient performance prejudiced the defendant. Whitlow v. State, 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)). A court may approach the inquiry in any order; there is no reason to address both prongs if the defendant makes an insufficient showing as to one. Adams v. State, 2007 MT 35, ¶ 22, 336 Mont. 63, 153 P.3d 601. In analyzing prejudice, the defendant must show a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different. State v. Brown, 2011 MT 94, ¶ 12, 360 Mont. 278, 253 P.3d 859.
¶16 Hansen fails to demonstrate prejudice. Hansen overstates the value Michelle offered as a witness while overlooking the extensive testimony substantiating the victim’s allegations. Michelle did testify and merely provided historical information about the family consistent with the victim’s testimony. Of course, she was subject to cross-examination but did not offer exonerating evidence to refute the victim’s claims. Even if she had been secured as a witness by the defense, Hansen does not proffer what testimony she would have added that would have been exculpatory. Conversely, the victim’s friend and ex-boyfriend provided extensive testimony corroborating the victim’s allegations of abuse. The overwhelming evidence presented against Hansen undermines his argument that there is a reasonable probability that the jury would have reached a different conclusion had his counsel called Michelle as a defense witness. Accordingly, having found no prejudice, we need not address whether counsel’s performance was deficient.
¶17 Hansen also argues that the District Court violated his constitutional rights when it based his sentence on his failure to admit guilt. District courts are prohibited from augmenting a defendant’s sentence because he refuses to confess to a crime or invokes his privilege against self-incrimination. State v. Duncan, 2008 MT 148, ¶ 52, 343 Mont. 220, 183 P.3d 111 (citation omitted). A defendant may not be punished for failing to accept responsibility for the crime when the defendant has expressly maintained his innocence and has a right to appeal his conviction. State v. Morris, 2010 MT 259, ¶ 22, 358 Mont. 307, 245 P.3d 512. Courts may, however, consider a defendant’s lack of remorse at sentencing so long as there is affirmative evidence of the lack of remorse. Morris, ¶ 22. The court may not simply infer a defendant’s lack of remorse from his silence or failure to acknowledge his convictions. State v. Rennaker, 2007 MT 10, ¶ 51, 335 Mont. 274, 150 P.3d 960. For this Court to reverse a sentence, the district court must have largely based its decision on the defendant’s lack of remorse or failure to take responsibility. State v. Champagne, 2013 MT 190, ¶ 47, 371 Mont. 35, 305 P.3d 61.
¶18 Contrary to Hansen’s assertion, the record is devoid of facts suggesting the District Court placed considerable weight on Hansen’s refusal to admit guilt. Despite warning Hansen that the overwhelming evidence indicated that he was guilty, the court also acknowledged that Hansen had a constitutional right to remain silent. The court explained the policy reasons behind its sentencing—to provide rehabilitation as well as to impose punishment commensurate with the crime. The court further explained that it balanced all the considerations when crafting the sentence, including the testimony from the victim, her request, the State’s recommendations, the sexual evaluations, and Montana statutes. The sentence imposed allowed for all but 15 years to be suspended—more lenient than the sentence sought by the State, recommended by the PSI, or mandated by the current statute. Although the court considered Hansen’s lack of remorse and victim blaming when fashioning the sentence, there is no indication the court largely based its decision on Hansen’s failure to take responsibility. The District Court did not impose an illegal sentence.
¶19 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.
1. Section 45-5-507(5)(a)(i), MCA, mandates imprisonment for a term of 100 years without suspension or deferment of the first 25 years of the sentence if the victim is 12 or younger and the offender is 18 or older at the time of the offense.
2. A Mazurek hearing requires a court to hold a hearing outside the presence of the jury to determine whether there is sufficient evidence to demonstrate that prior allegations of abuse are proven. State ex rel. Mazurek v. Dist. Court, 277 Mont. 349, 357, 922 P.2d 474, 479 (1996).
3. Defense counsel cross-examined Michelle. Hansen’s counsel attempted to cast doubt on the victim’s testimony by inquiring about Hansen’s genital anatomy and comparing her description to that proffered by the victim.
4. In addition, an evaluator from the Montana Sex Offender Treatment Association conducted a psychosexual evaluation on Hansen in 2015 prior to trial, which was amended in September 2017 after Hansen was convicted. The evaluator determined that Hansen “lacked insight into other matters pertaining to his life” and “tended to blame others for problems,” nonetheless concluding Hansen posed a low risk to reoffend.
Chief Justice Mike McGrath delivered the Opinion of the Court.
We Concur: JAMES JEREMIAH SHEA, J. DIRK M. SANDEFUR, J. LAURIE McKINNON, J. JIM RICE, J.
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