CHYATTE v. STATE (2020)

¶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 Douglas Joseph Chyatte appeals from the denial of his postconviction claims by the Fourth Judicial District Court after this Court remanded for consideration of one claim.

¶3 On August 30, 2012, Chyatte was convicted following a jury trial of felony assault with a weapon for his actions of stabbing another individual with a knife three times in the arm and back in November 2010. State v. Chyatte (Chyatte I), 2014 MT 125N, ¶¶ 3, 6, 375 Mont. 552, 346 P.3d 1133. Chyatte appealed, and we affirmed his conviction. Chyatte I, ¶ 2.

¶4 Thereafter, Chyatte filed a petition for postconviction relief, raising four claims related to trial rulings and several claims of ineffective assistance of counsel. The District Court dismissed the petition without ordering a response from the State or conducting a hearing, holding Chyatte's trial-based claims were procedurally barred and his ineffective assistance of counsel claims were without merit, reasoning on one claim that, even if Chyatte's counsel had given incorrect advice with regard to his eligibility for a persistent felony offender (PFO) sentence, Chyatte could not establish any prejudice from such advice. Chyatte appealed, and we affirmed the denial of all of Chyatte's postconviction claims, with the exception of the ineffectiveness claim dealing with his PFO sentence. Chyatte v. State (Chyatte II), 2015 MT 343, ¶¶ 20, 22, 381 Mont. 534, 362 P.3d 854. The State had conceded the record was insufficient for appellate review of this claim, and we held that, “to the extent [the claim] is based on alleged improper advice he received concerning the PFO designation,”

neither the record nor the District Court's order is sufficient to review for correctness the District Court's general conclusions that “there is no concession or proof that Chyatte's pre-trial attorneys provided ineffective assistance” and that Chyatte “could not have been misled about the effectiveness of the notice of his status as a persistent felony offender.” A response from the State or a hearing should provide the record necessary to resolve this issue, and we agree with the State's concession to this extent.

․

Chyatte's ineffective assistance of counsel claim regarding the PFO designation is the sole issue remanded to the District Court.

Chyatte II, ¶¶ 20, 22 (emphasis added).

¶5 On remand, the District Court conducted a hearing on the claim, but did not appoint counsel for Chyatte. On March 24, 2016, the District Court entered an order denying the claim. Chyatte appealed, and argued the District Court had erred by failing to appoint counsel to represent him at the hearing. On this issue, the State conceded that counsel should have been appointed. Upon the State's concession, we entered an order remanding the matter to the District Court “with instructions that the court order OPD to assign Chyatte counsel to represent him, and conduct another evidentiary hearing with respect to his IAC claim.” Chyatte v. State, No. DA 16-0201, Or. (Mont. Dec. 28, 2016).

¶6 The District Court appointed counsel to represent Chyatte at the hearing. Chyatte then filed an “amended” petition for postconviction relief, further advancing his IAC claim regarding his PFO designation, but also adding new ineffectiveness claims against counsel who had represented him in the Chyatte I appeal in 2014. Regarding the PFO-related ineffectiveness claim against his trial counsel, the State offered to remedy any prejudice Chyatte claimed to have sustained by his pre-trial rejection of the State's plea offer based upon his allegation that his trial counsel had given incorrect advice, by again offering to Chyatte the original plea deal, which would have eliminated the PFO sentence. However, when asked about this offer during the hearing, and upon consultation with counsel, Chyatte maintained his demand for a new trial. As the District Court found:

[O]n September 11, 2017 the State specifically offered to withdraw the PFO notice and follow the [originally offered] plea agreement. This would require the Defendant, Douglass Chyatte, to plead guilty. Mr. Chyatte specifically and repeatedly declined the offer. That decision settles this issue. He has been given an opportunity to obtain the relief he contends was denied and he has rejected it.

¶7 Regarding Chyatte's claims against his appellate counsel in Chyatte I, the District Court ruled that Chyatte had established his counsel could have reasonably raised, and should have raised, several additional issues on appeal, but that none of the additional issues would have resulted in this Court's reversal of his conviction, reasoning that a proper analysis of the arguments would have ultimately concluded that either there was no error by the trial court or that this Court would have declined to address the issue for failure to properly preserve it.

¶8 Chyatte appeals the denial of these postconviction claims. In postconviction proceedings, we review a court's conclusions of law for correctness. Chyatte II, ¶ 12 (citing Herman v. State, 2006 MT 7, ¶ 13, 330 Mont. 267, 127 P.3d 422). “An ineffective assistance of counsel claim presents mixed questions of law and fact which this Court reviews de novo.” Chyatte II, ¶ 12 (citing Sartain v. State, 2012 MT 164, ¶ 9, 365 Mont. 483, 285 P.3d 407).

¶9 Regarding Chyatte's claim that he was prejudiced in plea negotiations by incorrect advice from his trial counsel regarding applicability of the PFO designation, we have explained Chyatte's burden:

Where the ineffective advice led not to an offer's acceptance but to its rejection, the prejudice is in having to stand trial. In these circumstances, a defendant must show that but for the ineffective assistance of counsel there is “a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms” would have been less severe than under the actual sentence imposed. Lafler [v. Cooper, 566 U.S. 156, 164, 132 S. Ct. 1376, 1385 (2012)].

State v. Rose, 2017 MT 289, ¶ 19, 389 Mont. 374, 406 P.3d 443.

¶10 However, despite the prejudice under Chyatte's claim being “in having to stand trial,” Rose, ¶ 19, Chyatte insisted on a new trial as relief, and rejected a re-offer of the original plea deal that would have eliminated this prejudice and removed his PFO designation. Chyatte thus demanded what he had already received—a trial. Instead of carrying his burden to establish that he would have accepted the plea offer had he been given the correct advice, at the hearing Chyatte essentially proved the opposite: that he would have nonetheless chosen to proceed to trial, which he still demands. Given his failure to satisfy the proper burden, his claim based upon the plea negotiations failed, and the District Court properly denied it.

¶11 In our remand in Chyatte II, we specifically directed that “Chyatte's ineffective assistance of counsel claim regarding the PFO designation is the sole issue remanded to the District Court.” Chyatte II, ¶ 22 (emphasis added). We reiterated this in our 2017 order requiring appointment of counsel, instructing the District Court to “order OPD to assign Chyatte counsel to represent him, and conduct another evidentiary hearing with respect to his IAC claim.” Chyatte v. State, No. DA 16-0201, Or. (Mont. Dec. 28, 2016) (emphasis added). However, back in the District Court, Chyatte filed an “amended” petition that included additional claims against other counsel. Raising additional claims was a violation of the scope of our remand, and the law of the case. See Haines Pipeline Constr. v. Montana Power Co., 265 Mont. 282, 291, 876 P.2d 632, 638 (1994) (after remand for the “singular purpose” of permitting the parties to argue the effect of a change in the law, the District Court erred by considering additional issues); In re Marriage of Sarsfield, 215 Mont. 123, 125, 695 P.2d 473, 474 (1985) (a trial court's obligation to follow the scope of remand “is both logical and clearly expressed in the law of Montana,” citing § 3-2-204(1), MCA); State v. Gilder, 2001 MT 121, ¶ 14, 305 Mont. 362, 28 P.3d 488 (internal citation omitted) (“On remand, the trial court may consider or decide any matters left open by the appellate court and is free to make any order in further progress of the case, not inconsistent with the decision of the appellate court” ) (emphasis added). Scope of remand is an issue an appellate court “should notice sua sponte.” State v. Clark, 2008 MT 391, ¶ 64, 347 Mont. 113, 197 P.3d 977 (Gray, C.J., concurring and dissenting). Further, Chyatte's post-remand petition was not merely an amended petition, because it raised completely new claims against other counsel that had not been previously raised, and must be considered a “second or subsequent” petition under § 46-21-105(1)(b), MCA. Under the statute, second or subsequent petitions are prohibited “unless the second or subsequent petition raises grounds for relief that could not reasonably have been raised” in the initial proceeding. Section 46-21-105(1)(b), MCA. All of Chyatte's post remand IAC claims against his Chyatte I appellate counsel were viable and could have been raised in the postconviction proceeding that was appealed in Chyatte II. Our remand in Chyatte II did not give Chyatte a second bite of the apple to raise and litigate additional claims.

¶12 However, notwithstanding the procedural impropriety of Chyatte's additional claims, we conclude the District Court did not err in also denying them on their merits. Chyatte did not establish that the additional arguments that could have reasonably been raised in Chyatte I would have resulted in overturning his conviction upon reversible error.

¶13 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. This appeal presents no constitutional issues, no issues of first impression, and does not establish new precedent or modify existing precedent. In the opinion of the Court, the case presents questions controlled by settled law and by the clear application of applicable standards of review. The District Court did not err by entering the rulings challenged on appeal.

¶14 Affirmed.

Justice Jim Rice delivered the Opinion of the Court.

We concur: MIKE McGRATH, C.J. BETH BAKER, J. INGRID GUSTAFSON, J. DIRK M. SANDEFUR, J.