author: BRODY, Justice.

text:
    STATE of Idaho, Plaintiff-Respondent, v. Zuatney GONZALEZ, Defendant-Appellant.
    Docket No. 44534
    Supreme Court of Idaho, Boise, December 2018 Term.
    Filed: February 20, 2019 Rehearing Denied May 17, 2019
    Eric D. Fredericksen, State Appellate Public Defender, Boise, for appellant. Sally J. Cooley argued.
    Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
   BRODY, Justice.

This case involves a question of the proper amount of credit for time served to which the appellant, Ms. Gonzalez, is entitled; however, the focal point of our decision today is whether Gonzalez's position was properly raised and ruled upon by the district court. Because we hold that it was not, Gonzalez's appeal fails. However, we recognize that some confusion has arisen over how this Court addresses a new legal argument made on appeal in light of State v. Garcia-Rodriguez , 162 Idaho 271, 396 P.3d 700 (2017), and Ada County Highway District v. Brooke View, Inc. , 162 Idaho 138, 395 P.3d 357 (2017). We take this opportunity to clarify the rule announced in these cases and explain why we reached two very different decisions in each case.

Zuatney Gonzalez pleaded guilty to two criminal counts of possession of a financial transaction card in Bannock County and thereafter requested credit for time served while she was jailed in Canyon County on similar, but unrelated charges. The legal position she took in support of her motion changed. Before the district court, she requested credit from the time Bannock County first issued an arrest warrant in October 2015. In briefing before this Court, she requested credit from the time Bannock County placed a "hold" on her on December 11, 2015. Her position changed again during oral argument when counsel was presented with an affidavit of service in the record which appears to demonstrate that Gonzalez was actually served with the Bannock County arrest warrant on December 11, 2015. In considering the last legal position Gonzalez took, it appears she is legally entitled to credit for time served from when she was first served with the warrant, absent evidence challenging the veracity of the service affidavit. However, since this position was not presented before the district court, Gonzalez has failed to preserve the issue for appeal.

I. FACTUAL AND PROCEDURAL BACKGROUND

On September 28, 2015, Zuatney Gonzalez ran afoul of the law when she used a fictitious credit card at a Sportsman's Warehouse in Bannock County to make a purchase of $ 3,760. After continuing her unlawful shopping spree in Nampa, Idaho, she was arrested and jailed in Canyon County. On October 21, 2015-while Gonzalez was sitting in Canyon County custody-Bannock County prosecutors filed a criminal complaint against her, and a Bannock County magistrate court issued an arrest warrant with a $ 25,000 bond.

The record shows that on December 11, 2015, Corporal Kelly Pound with Canyon County served the Bannock County arrest warrant on Gonzalez. Three days later, the Canyon County magistrate court held an in-custody arraignment on the Bannock County charges, notified Gonzalez of the warrant, set bail at $ 25,000, and remanded her back to the custody of the Canyon County Sheriff's Department. After pleading guilty to her Canyon County charges and being sentenced, Gonzalez was transferred to Bannock County where she was again served with the arrest warrant on March 3, 2016.

On April 19, 2016, Gonzalez pleaded guilty in Bannock County to two counts of criminal possession of a credit card and was sentenced to a unified term of five years that would run concurrently with the similar charges in Canyon County. On July 14, 2016, Gonzalez moved the district court for credit for time served. Specifically, she requested credit for the time she was incarcerated in Canyon County-from October 21, 2015, the date of the issuance of the arrest warrant, to March 9, 2016, when she was transferred to Bannock County. In support of her motion, Gonzalez attached a copy of the arrest warrant served on her in March and a computer printout that outlined events during her incarceration in Canyon County; on the printout there was a "Holds" section that featured the following: "WENT TO BANNCOCK (sic) COUNTY Other County Hold 12/11/2015." The arrest warrant served on her in December with the accompanying certificate of service was not attached or mentioned in the motion.

During the motion hearing, Gonzalez's attorney briefly explained that Gonzalez had been served with a Bannock County arrest warrant while she was in Canyon County, but incorrectly told the court that the correct warrant was attached to the motion. The court stated that it would review everything and ensure Gonzalez was given appropriate credit for all time served. It then partially granted her motion, giving her credit for the time served from the date of the second service of her arrest warrant on March 3, 2016. However, it denied any credit for time served while she was incarcerated in Canyon County, explaining:

Gonzalez's incarceration in the Canyon County jail was for an offense other than the one for which she was sentenced in Bannock County; therefore she is not entitled to credit in the Bannock County case for that Canyon County jail time. However, once the Defendant was served with the arrest warrant, it is clear that she was then being held for criminal conduct that allegedly occurred in Bannock County, and she is therefore entitled to credit for time served from March 3, 2016, until May 2, 2016...
After careful consideration, this Court DENIES the Defendant's request for credit for time served from October 21, 2015, to March 3, 2016, since she was confined in the Canyon County jail on conduct unrelated to the charges in Bannock County at that time.

Gonzalez timely appealed this ruling, asking for credit for time served from the December 11, 2015 Bannock County hold. The Idaho Court of Appeals held that the issue was not preserved because she asked the trial court for credit for time served from the October 21, 2015 date, not the December 11, 2015 hold date. We granted a petition for review.

II. STANDARD OF REVIEW

"In cases that come before this Court on a petition for review of a Court of Appeals decision, this Court gives serious consideration to the views of the Court of Appeals, but directly reviews the decision of the lower court." State v. Barrett , 163 Idaho 449, 451, 414 P.3d 1188, 1190 (2018) (quoting State v. Garcia-Rodriguez , 162 Idaho 271, 274, 396 P.3d 700, 703 (2017) ). "This Court thus acts as if the case were on direct appeal from the district court." Id.

"The question of whether a sentencing court has properly awarded credit for time served to the facts of a particular case is a question of law, which is subject to free review by the appellate courts." Id. (quoting State v. Taylor , 160 Idaho 381, 384-85, 373 P.3d 699, 702-03 (2016) ).

III. ANALYSIS

In her briefing before this Court, Gonzalez argued that she was entitled to credit for time served from December 11, 2015 (Bannock County hold), while recognizing that she had originally argued to the district court for credit for time served from October 21, 2015 (Bannock County arrest warrant issued). During oral argument, Gonzalez's attorney was made aware of the first service of the Bannock County arrest warrant on December 11, 2015, that was in the record. Then, in the middle of oral argument, Gonzalez adjusted her position and asserted that she was entitled to credit for time served from the December 11 arrest warrant that had been overlooked. The State rebutted that argument, asserting that Gonzalez's changes in position (moving from date of issuance of arrest warrant to date of hold to date of service) could not be raised for the first time on appeal as explained in State v. Garcia-Rodriguez , 162 Idaho at 274, 396 P.3d at 703. We agree.

Before addressing our decision in State v. Garcia-Rodriguez , it is important to step back and examine an opinion we issued about a month earlier in Ada Cnty. Highway Dist. v. Brooke View, Inc. , 162 Idaho 138, 142 n.2, 395 P.3d 357, 361 n.2 (2017). In Brooke View , the Ada County Highway District (ACHD) had taken property from Brooke View to install a drainage ditch and sidewalks for students walking to school. Id. at 140, 395 P.3d at 359. Litigation ensued over the value of the taking, but it soon focused on damage ACHD had caused to a large wall adjacent to the construction. Id. at 141, 395 P.3d at 360. Brooke View sought to recover the damages as part of the value of the taking. Id. ACHD consistently defended against the claim with the position "that damages caused during construction were not recoverable as part of just compensation." Id. The district court rejected ACHD's position and held that claims of damage caused to Brooke View's wall were part of the taking claim.

On appeal, ACHD maintained its position that the valuation of just compensation did not include damage done during construction, but polished up its support for this argument by citing the statute that defined the valuation of just compensation, Idaho Code section 7-711, and the statute that provided that the actual value of the property at the date of the issuance of the summons is used to determined compensation and damages, Idaho Code section 7-712. Id. Brooke View argued that ACHD's statutory support for its position was new on appeal and was therefore not properly preserved. Id. at 142 n.2, 395 P.3d at 361 n.2. We held that ACHD properly preserved the issue because only specific arguments had changed, not ACHD's issue or position on the issue:

Here, early in the proceedings before the district court ACHD adopted the position that damages caused during construction were not recoverable as part of just compensation. ACHD argued this position repeatedly, despite being admonished numerous times by the district court to stop doing so. There is no question that ACHD clearly raised the relevant issue before the district court. ACHD's specific arguments in support of its position may have evolved since the trial, but the issues on appeal and ACHD's position with respect to them remain the same.

Id.

In Brooke View , the district court addressed the legal issue that ACHD appealed and ACHD did not change its legal position toward that distinct issue (that damages caused during construction were not recoverable as part of just compensation), even though the specific legal arguments it used to support its position had evolved. This was proper and necessary for ACHD to do-during the time of an appeal, parties will ruminate on issues and case law will be decided that may need to be applied to the specific facts of the case at hand. However, these pragmatic evolutions do not leave room for a party to raise new substantive issues on appeal or adopt a new position on an issue that the trial court has not had the opportunity to rule on.

In Garcia-Rodriguez , 162 Idaho 271, 396 P.3d 700 (2017), we were faced with similar arguments. In Garcia-Rodriguez , a defendant was arrested during a traffic stop for failing to purchase a driver's license under Idaho Code sections 49-301(1) and (8). 162 Idaho at 274, 396 P.3d at 703. He filed a motion to suppress evidence found on him during a search incident to arrest, arguing that his Fourth Amendment rights were violated. Id. The State responded that Idaho Code section 49-1407 provided grounds for officers to arrest so long as they had reasonable and probable grounds to believe the person would disregard a written promise to appear in court, which they argued they indeed had. Id. After considering the evidence and testimony presented, the district court granted the defendant's motion to suppress, determining that the State failed to produce adequate evidence that the officers possessed reasonable and probable grounds to believe that the defendant would disregard a written promise to appear. Id.

On appeal, the State abandoned the fact-based argument it presented to the district court and took up a wholly new one: The officers did not violate the Fourth Amendment because they had probable cause to believe that the defendant had no driver's license-which alone is constitutionally sufficient grounds to arrest, even if they violated Idaho Code section 49-1401 due to a lack of reasonable and probable grounds to believe the defendant would not honor his written promise to appear. Id. at 274-75, 396 P.3d at 703-04. Using ancient wisdom, we explained that substantive issues may not be raised for the first time on appeal because allowing new issues on appeal would change the function of the appellate courts:

It is for the protection of inferior courts. It is manifestly unfair for a party to go into court and slumber, as it were, on his defense, take no exception to the ruling, present no point for the attention of the court, and seek to present his defense, that was never mooted before, to the judgment of the appellate court. Such a practice would destroy the purpose of an appeal and make the supreme court one for deciding questions of law in the first instance.

Id. at 276, 396 P.3d at 705 (quoting Smith v. Sterling , 1 Idaho 128, 131 (1867) ).

Our invocation of the ancient wisdom was somewhat imprecise. The State in Garcia-Rodriguez shifted its position on the issue of whether the officers had probable cause to arrest the defendant. Instead of arguing that the officers had probable cause to believe the defendant would not appear, the State argued that the officers had probable cause to believe the defendant did not have a driver's license.

We will not hold that a trial court erred in making a decision on an issue or a party's position on an issue that it did not have the opportunity to address. To be clear, both the issue and the party's position on the issue must be raised before the trial court for it to be properly preserved for appeal. In other words, Brooke View portrays a party riding on a horse that has been groomed and reshod for the appellate process, whereas Garcia-Rodriguez exemplifies a party entering the appellate process riding a similar-looking but entirely new horse. A groomed horse is expected on appeal, but a different horse is forbidden.

Here, Gonzalez is riding a similar, but new horse. Unlike ACHD in Brooke View which maintained the same position on an issue both at the district court level and throughout the appeal, Gonzalez has changed position on her motion for credit for time served. In her motion for credit for time served and at the motion hearing, she requested time from the issuance of the Bannock County arrest warrant. However, on appeal, she abandoned that position and instead argued that she was entitled to credit for time served from the date of a Bannock County hold . Then, during oral arguments, she again changed positions and argued that she was entitled to credit from the date of the service of the first Bannock County warrant. These changes in position on the issue of credit for time served were inappropriate.

It should be noted that had Gonzalez initially taken the position with the district court that she now takes on the appeal, she would likely be entitled to credit for time served from the date of service of the first arrest warrant. The relevant statute is Idaho Code section 18-309(1), which addresses credit for time served:

In computing the term of imprisonment, the person against whom the judgment was entered shall receive credit in the judgment for any period of incarceration prior to entry of judgment, if such incarceration was for the offense or an included offense for which the judgment was entered.

This Court recently interpreted this statute in State v. Brand , 162 Idaho 189, 395 P.3d 809 (2017). In Brand , we explained that section 18-309(1)"applies to all offenses that provide a basis for the defendant's incarceration," and that a two-pronged test is to be used in determining when credit for time served under section 18-309 is mandated. Id . at 192, 395 P.3d at 812. The first prong requires incarceration of the defendant from the date an arrest warrant is served and the judgment of conviction being entered. Id. at 192-93, 395 P.3d at 812-13. The second lays aside any alternative reason for the defendant's incarceration and simply requires that the relevant offense be one that provides a basis for incarceration. Id. at 193, 395 P.3d at 813. To explain this test, the Court outlined a hypothetical scenario in Brand that parallels the facts of this case. The Court explained that credit for time served would begin when a defendant is served with an arrest warrant while in custody for another charge:

Scenario 1: Defendant is already in custody on unrelated charges. He is served with an arrest warrant which requires defendant to post bail. Defendant does not post bail and remains in custody until sentencing. Defendant is entitled to credit from the date of service of the warrant through the date of sentencing.

Id.

In this case, Gonzalez was in custody in Canyon County on charges unrelated to the charges filed in Bannock County. She was served with a Bannock County arrest warrant on December 11, 2015, which required her to post bail of $ 25,000. Gonzalez was arraigned on this Bannock County warrant but did not post bail and was remanded to the custody of the Canyon County Sheriff.

However, Gonzalez failed to argue or present evidence on this position before the district court. Even though Gonzalez argued that she was entitled to credit for time served from the issuance of a Bannock County arrest warrant, the district court nonetheless applied the correct standard to the evidence before it when it determined that credit for time served began with the service of the Bannock County warrant on March 3, 2016. The district court explained its reasoning by stating that "once the Defendant was served with the arrest warrant, it is clear that she was then being held for criminal conduct that allegedly occurred in Bannock County." However, the district court was not presented with the arrest warrant served on Gonzalez on December 11, 2015, because this was not Gonzalez's original position. To allow Gonzalez to change positions on appeal would be unfair to the State because it did not have the opportunity to address and respond at the district court level. Likewise, it would be inappropriate for this Court to rule that the district court erred by not considering evidence or argument not presented to it. Just as we would not allow the State in Garcia-Rodriguez to change positions on an issue on appeal, we will not allow Gonzalez to change positions on the issue of credit for time served. We hold that she has failed to properly preserve her issue for appeal because of her transforming positions on that issue. This holding should not be construed as precluding Gonzalez from filing a renewed motion for credit for time served pursuant to Idaho Criminal Rule 35(c).

IV. CONCLUSION

In light of the foregoing, the decision of the district court is affirmed. Gonzalez may, at her discretion, file a renewed motion for credit for time served pursuant to Idaho Criminal Rule 35(c).

Chief Justice BURDICK, and Justices BEVAN, STEGNER and HORTON concur.


source: Caselaw Access Project

author: GRATTON, Chief Judge

license: Public Domain

text:
    Mark BLACK, Petitioner-Appellant, v. STATE of Idaho, Defendant-Respondent.
    Docket No. 45432
    Court of Appeals of Idaho.
    Filed: March 6, 2019 Review Denied May 17, 2019
    John C. Lynn, Boise, for appellant.
    Hon. Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy Attorney General, Boise, for respondent.
   GRATTON, Chief Judge

Mark Black appeals from the district court's judgment dismissing his petition for post-conviction relief. Black challenges the district court's order granting the State's motion for summary dismissal of his petition. For the reasons set forth below, we affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Black pled guilty to trafficking in heroin, Idaho Code § 37-2732B(a)(6)(B). The district court entered judgment and imposed a unified fifteen-year sentence with ten years determinate. Black did not appeal.

Thereafter, Black filed a petition for post-conviction relief. He asserted two grounds for relief in the petition. First, Black argued I.C. § 37-2732B(a)(6)(B) is unconstitutional on nine separate theories. Second, Black argued his trial counsel rendered ineffective assistance by failing to file a motion to dismiss challenging the constitutionality of I.C. § 37-2732B(a)(6)(B). The State moved for summary dismissal of Black's petition. The district court held a hearing on the State's motion for summary dismissal. Following the hearing, the court ordered the parties to file post-hearing briefing to address whether Black's first claim fails because (1) he had waived his right to directly challenge the statute's constitutionality pursuant to I.C. § 19-4908, or (2) he had forfeited the claim in post-conviction proceedings pursuant to I.C. § 19-4901(b). The district court concluded Black had failed to raise a challenge to the constitutionality of I.C. § 37-2732B(a)(6)(B) in the trial court or on direct appeal, and thus pursuant to I.C. § 19-4901(b) Black had forfeited his direct challenge to the statute in post-conviction proceedings. The court also concluded Black's ineffective assistance of counsel claim failed because Black had been unable to prove that his trial counsel's performance was deficient. Thus, the court granted the State's motion for summary dismissal and dismissed Black's petition for post-conviction relief with prejudice. Black timely appeals.

II.

ANALYSIS

Black asserts the district court erred by summarily dismissing his claim that § 37-2732B(a)(6)(B) is unconstitutional and his claim that trial counsel rendered ineffective assistance. The State asserts the district court did not err in dismissing the petition for post-conviction relief. We agree.

A petition for post-conviction relief initiates a proceeding that is civil in nature. I.C. § 19-4907 ; Rhoades v. State , 148 Idaho 247, 249, 220 P.3d 1066, 1068 (2009) ; State v. Bearshield , 104 Idaho 676, 678, 662 P.2d 548, 550 (1983) ; Murray v. State , 121 Idaho 918, 921, 828 P.2d 1323, 1326 (Ct. App. 1992). Like a plaintiff in a civil action, the petitioner must prove by a preponderance of evidence the allegations upon which the request for post-conviction relief is based. Goodwin v. State , 138 Idaho 269, 271, 61 P.3d 626, 628 (Ct. App. 2002). A petition for post-conviction relief differs from a complaint in an ordinary civil action. Dunlap v. State , 141 Idaho 50, 56, 106 P.3d 376, 382 (2004). A petition must contain much more than a short and plain statement of the claim that would suffice for a complaint under Idaho Rule of Civil Procedure 8(a)(1). Rather, a petition for post-conviction relief must be verified with respect to facts within the personal knowledge of the petitioner, and affidavits, records, or other evidence supporting its allegations must be attached or the petition must state why such supporting evidence is not included with the petition. I.C. § 19-4903. In other words, the petition must present or be accompanied by admissible evidence supporting its allegations, or the petition will be subject to dismissal. Wolf v. State , 152 Idaho 64, 67, 266 P.3d 1169, 1172 (Ct. App. 2011).

Idaho Code Section 19-4906 authorizes summary dismissal of a petition for post-conviction relief, either pursuant to a motion by a party or upon the court's own initiative, if it appears from the pleadings, depositions, answers to interrogatories, and admissions and agreements of fact, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. When considering summary dismissal, the district court must construe disputed facts in the petitioner's favor, but the court is not required to accept either the petitioner's mere conclusory allegations, unsupported by admissible evidence, or the petitioner's conclusions of law. Roman v. State , 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994) ; Baruth v. Gardner , 110 Idaho 156, 159, 715 P.2d 369, 372 (Ct. App. 1986). Moreover, the district court, as the trier of fact, is not constrained to draw inferences in favor of the party opposing the motion for summary disposition; rather, the district court is free to arrive at the most probable inferences to be drawn from uncontroverted evidence. Hayes v. State , 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008). Such inferences will not be disturbed on appeal if the uncontroverted evidence is sufficient to justify them. Id.

Claims may be summarily dismissed if the petitioner's allegations are clearly disproven by the record of the criminal proceedings, if the petitioner has not presented evidence making a prima facie case as to each essential element of the claims, or if the petitioner's allegations do not justify relief as a matter of law. Kelly v. State , 149 Idaho 517, 521, 236 P.3d 1277, 1281 (2010) ; DeRushé v. State , 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009). Thus, summary dismissal of a claim for post-conviction relief is appropriate when the court can conclude, as a matter of law, that the petitioner is not entitled to relief even with all disputed facts construed in the petitioner's favor. For this reason, summary dismissal of a post-conviction petition may be appropriate even when the state does not controvert the petitioner's evidence. See Roman , 125 Idaho at 647, 873 P.2d at 901.

Conversely, if the petition, affidavits, and other evidence supporting the petition allege facts that, if true, would entitle the petitioner to relief, the post-conviction claim may not be summarily dismissed. Charboneau v. State , 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004) ; Sheahan v. State , 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008). If a genuine issue of material fact is presented, an evidentiary hearing must be conducted to resolve the factual issues. Goodwin , 138 Idaho at 272, 61 P.3d at 629.

On appeal from an order of summary dismissal, we apply the same standards utilized by the trial courts and examine whether the petitioner's admissible evidence asserts facts which, if true, would entitle the petitioner to relief. Ridgley v. State , 148 Idaho 671, 675, 227 P.3d 925, 929 (2010) ; Sheahan , 146 Idaho at 104, 190 P.3d at 923. Over questions of law, we exercise free review. Rhoades , 148 Idaho at 250, 220 P.3d at 1069 ; Downing v. State , 136 Idaho 367, 370, 33 P.3d 841, 844 (Ct. App. 2001).

A. Constitutionality of I.C. § 37-2732B(a)(6)(B)

On appeal, Black argues that the district court erred in summarily dismissing his direct challenge to the constitutionality of I.C. § 37-2732B(a)(6)(B) pursuant to the general rule contained in I.C. § 19-4901(b). Alternatively, Black argues even if this Court concludes that the general rule of I.C. § 19-4901(b) applies, his challenge to the constitutionality of I.C. § 37-2732B(a)(6)(B) falls within the exception of I.C. § 19-4901(b) and therefore should have been considered by the district court.

The State argues Black has failed to show error. According to the State, Black could have raised his constitutional challenge on direct appeal but did not, and thus the claim is forfeited in post-conviction proceedings pursuant to I.C. § 19-4901(b). The State also argues the district court correctly concluded that Black failed to show that the exception to I.C. § 19-4901(b) applies in his case. We agree.

The scope of post-conviction relief is limited. Knutsen v. State , 144 Idaho 433, 438, 163 P.3d 222, 227 (Ct. App. 2007). A petition for post-conviction relief is not a substitute for an appeal. I.C. § 19-4901(b). A claim or issue that was or could have been raised on appeal may not be considered in post-conviction proceedings. Id. ; Mendiola v. State , 150 Idaho 345, 348-49, 247 P.3d 210, 213-14 (Ct. App. 2010). To fall within the exception and be granted post-conviction relief on an issue which could have been raised on direct appeal, but was not, a petitioner must show "on the basis of a substantial factual showing by affidavit, deposition or otherwise, that the asserted basis for relief raises a substantial doubt about the reliability of the finding of guilt and could not, in the exercise of due diligence, have been presented earlier." I.C. § 19-4901(b) ; Bias v. State , 159 Idaho 696, 702, 365 P.3d 1050, 1056 (Ct. App. 2015).

Black's petition for post-conviction relief contained his first challenge to the constitutionality of I.C. § 37-2732B(a)(6)(B). Black attempted to challenge the constitutionality of I.C. § 37-2732B(a)(6)(B) in the trial court by filing a motion to withdraw guilty plea pursuant to Idaho Criminal Rule 33(c). However, the motion was not timely filed, so the district court dismissed the motion without considering its merits. On appeal, Black concedes that he did not file a direct appeal in the underlying criminal case. Thus, the district court correctly concluded that Black could have raised a constitutional challenge to the statute on direct appeal from his underlying conviction, but he did not.

Furthermore, contrary to Black's argument, I.C. § 19-4901(b) operates independently from a petitioner's awareness of potential claims that he or she could have raised on direct appeal. Idaho Code § 19-4901(b) does not precondition the forfeiture of a claim in post-conviction proceedings on a petitioner's knowledge or awareness of whether a claim could have been raised on direct appeal. In order to render a claim forfeited in post-conviction proceedings, the language of I.C. § 19-4901(b) merely requires that the petitioner could have raised the claim on direct appeal in the underlying criminal case and failed to do so. Therefore, regardless of whether Black was informed or advised that the trafficking statute was subject to a constitutional challenge in trial court proceedings, his constitutional claim is forfeited in post-conviction pursuant to I.C. § 19-4901(b) because it could have been raised on direct appeal in the first instance but was not.

The district court also correctly concluded that Black's constitutional challenge does not fall within the exception to the general rule of I.C. § 19-4901(b). Black did not present the district court with any evidence that his constitutional claim could not, in the exercise of due diligence, have been presented earlier, and he has not pointed this Court to any such evidence in the record on appeal. Instead, Black directs our attention to Hoffman v. State , 153 Idaho 898, 277 P.3d 1050 (Ct. App. 2012) and Mintun v. State , 144 Idaho 656, 168 P.3d 40 (Ct. App. 2007). Relying on those cases, Black argues unobjected-to trial errors may be directly attacked in post-conviction proceedings, despite not being raised in the trial court or on direct appeal, because the "substantial doubt" language in I.C. § 19-4901(b) incorporates the doctrine of fundamental error.

The substantial doubt aspect of the statute is not akin to the fundamental error doctrine, and we have rejected similar arguments in the past. In Mintun , the petitioner challenged the district court's denial of his post-conviction claim that his appellate counsel was ineffective. Mintun , 144 Idaho at 658, 168 P.3d at 42. In a subsequent case, we explained, "In affirming the district court's denial of [Mintun's] claim, we held the proper way for a defendant to challenge an unpreserved trial error is to assert ineffective assistance of trial counsel in a post-conviction proceeding." Bias , 159 Idaho at 703, 365 P.3d at 1057. We concluded, " Mintun did not hold, even tangentially, that an unpreserved trial error itself can be raised in a post-conviction proceeding." Bias , 159 Idaho at 703, 365 P.3d at 1057. Furthermore, in Grove v. State , 161 Idaho 840, 392 P.3d 18 (Ct. App. 2017), we reaffirmed that "the proper way for a defendant to challenge an unpreserved trial error is to assert ineffective assistance of trial counsel in post-conviction proceeding[s]." Id. at 851, 392 P.3d at 29. Thus, Mintun does not support Black's argument.

Likewise, Black's conclusion does not follow from Hoffman . In Hoffman , the petitioner's claim was an ineffective assistance of counsel claim, not a claim directly challenging an unobjected-to error for the first time in post-conviction proceedings. Hoffman , 153 Idaho at 903-905, 277 P.3d at 1055-57. For these reasons, the district court did not err in concluding " section 19-4901(b) 's general rule applies, not its exception" and summarily dismissing Black's first claim, which directly challenged the constitutionality of I.C. § 37-2732B(a)(6)(B).

B. Ineffective Assistance of Counsel

Black's ineffective assistance of counsel claim is based on his trial counsel's failure to file a motion to dismiss challenging the constitutionality of I.C. § 37-2732B(a)(6)(B). Black argues that "Resolution of the constitutionality issue is then, by definition, resolution of the ineffective assistance of counsel claim." Black's argument that the resolution of his constitutionality claims is outcome determinative of his ineffective assistance of counsel claim is incorrect as a matter of law. Resolution of the constitutionality issue is determinative of both prongs of Strickland where the court concludes that the motion, if pursued, would not have been granted by the trial court. Lint v. State , 145 Idaho 472, 477-78, 180 P.3d 511, 516-17 (Ct. App. 2008) (emphasis added). However, where the motion would have been granted had it been filed, the petitioner is still required to overcome the presumption that the decision not to file the motion was within the wide range of permissible discretion and trial strategy. Wurdemann v. State , 161 Idaho 713, 718, 390 P.3d 439, 444 (2017).

A claim of ineffective assistance of counsel may properly be brought under the Uniform Post-Conviction Procedure Act. Barcella v. State , 148 Idaho 469, 477, 224 P.3d 536, 544 (Ct. App. 2009). To prevail on an ineffective assistance of counsel claim, the petitioner must show that the attorney's performance was deficient and that the petitioner was prejudiced by the deficiency. Strickland v. Washington , 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Self v. State , 145 Idaho 578, 580, 181 P.3d 504, 506 (Ct. App. 2007). As to the deficient performance analysis, the Idaho Supreme Court stated in Adamcik v. State , 163 Idaho 114, 408 P.3d 474 (2017) :

In Wurdemann v. State , 161 Idaho 713, 390 P.3d 439 (2017), this Court recently outlined a two-part inquiry for determining whether the failure to file a motion to suppress satisfies Strickland 's deficiency prong. First, the threshold issue is "whether the motion, if filed, should have been granted." Id. at 717, 390 P.3d at 443 (quoting State v. Dunlap , 155 Idaho 345, 385, 313 P.3d 1, 41 (2013) ). A motion that would not have been granted by the trial court ends the inquiry, as counsel's conduct cannot have fallen below a reasonable standard for failing to object to admissible evidence. State v. Payne , 146 Idaho 548, 562, 199 P.3d 123, 137 (2008). Second, if the motion would have been granted, "the petitioner is still required to overcome the presumption that the decision not to file the motion 'was within the wide range of permissible discretion and trial strategy.' " Wurdemann , 161 Idaho at 718, 390 P.3d at 444 (quoting Estrada v. State , 143 Idaho 558, 561, 149 P.3d 833, 836 (2006) ).

Adamcik , 163 Idaho at 124, 408 P.3d at 484.

Thus, under Wurdemann , once it has been determined that the motion should have been granted had it been filed, the petitioner is still required to overcome the presumption that the decision not to file the motion was within the wide range of permissible discretion and trial strategy. Wurdemann , 161 Idaho at 718, 390 P.3d at 444. The Supreme Court explained:

When evaluating an ineffective assistance of counsel claim, this Court does not second-guess strategic and tactical decisions, and such decisions cannot serve as a basis for post-conviction relief unless the decision is shown to have resulted from inadequate preparation, ignorance of the relevant law or other shortcomings capable of objective review.

Id . at 720-721, 390 P.3d at 446-447 (quoting Payne , 146 Idaho at 561, 199 P.3d at 136 ). "[R]ecognizing the strong presumption that counsel acted 'within the wide range of reasonable professional assistance,' we review whether counsel's decision not to file a motion to [dismiss] was reasonable given the prevailing legal standards at the time of the trial." Wurdemann , 161 Idaho at 721, 390 P.3d at 477 (citations omitted).

With respect to the question of whether the motion would have been granted, the district court stated that it was "[p]utting aside for a moment whether a motion to dismiss the trafficking charge on grounds of section 37-3732B(a)(6)(B)'s alleged unconstitutionality would've succeeded" and assumed arguendo that one of the challenges might have succeeded. Thus, the court assumed, without deciding, that the motion to dismiss would have been granted and then proceeded to address whether Black had overcome the presumption.

As an initial matter, we note that the issue of whether the attorney made a strategic or tactical decision in not pursuing a motion to dismiss was not raised below and is not, therefore, properly at issue on appeal. See Kirk v. Wescott , 160 Idaho 893, 382 P.3d 342, 348 (2016) (stating that issues not raised below will not be considered on appeal); Akers v. Mortensen , 160 Idaho 286, 288, 371 P.3d 340, 342 (2016) ("a party waives an appellate issue that is not supported with relevant argument or authority"). While the State mentioned the presumption in its brief to the district court, it was merely included in the recitation of the standards and not argued. Black never mentioned or argued the standard nor whether the attorney's failure to file a motion was not a strategic or tactical decision or otherwise fell outside the prevailing professional norms. Thus, in the absence of any argument, let alone evidence, below, we need not consider the issue on appeal and Black has failed in his burden to demonstrate that the attorney's decision resulted from inadequate preparation, ignorance of the relevant law, or other shortcoming capable of objective review.

The district court concluded that "it was reasonable, under the prevailing legal standards at the operative time, for trial counsel not to pursue these challenges" by filing a motion to dismiss. This is a factual finding. See Wurdemann , 161 Idaho at 721, 390 P.3d at 447 (trial court finding that there was no strategic or tactical decision is a factual finding). We will not disturb such a finding unless it is clearly erroneous. Id . In concluding that it was reasonable not to file the motion, the court noted that Black had presented a "dearth of evidence that, at the time of trial, it was a prevailing practice among defense attorneys to challenge section 37-2732B on constitutional grounds." The court also stated that Black had presented no evidence that similarly situated defendants were pursuing these sorts of challenges before he entered his guilty plea. The court then cited several Idaho appellate opinions that rejected challenges to the constitutionality of I.C. § 37-2732B(a)(6)(B). State v. Pena-Reyes , 131 Idaho 656, 656-57, 962 P.2d 1040, 1040-41 (1998) (holding the trafficking statute does not violate article 5, § 13, of the Idaho Constitution ); State v. Puetz , 129 Idaho 842, 844, 934 P.2d 15, 17 (1997) (holding the trafficking statute fully complies with article 5, § 13, of the Idaho Constitution ); State v. Payan , 132 Idaho 614, 616-18, 977 P.2d 228, 230-32 (Ct. App. 1998) (holding that the exercise of prosecutorial discretion in choosing to prosecute under I.C. § 37-2732B rather than another statute which proscribes the same conduct but provides for a different penalty did not violate the Equal Protection Clause of the United States Constitution or the equal protection provision of the Idaho Constitution); State v. Rogerson , 132 Idaho 53, 55-58, 966 P.2d 53, 55-58 (Ct. App. 1998) (holding the trafficking statute does not violate separation of powers principles, does not violate due process, and does not violate the equal protection clause). The court characterized some of Black's nine constitutional challenges as "highly similar" to the challenges already rejected in those cases and reasoned that these opinions constituted "good reason" why such constitutional challenges to the trafficking statute "are rare nowadays."

These findings are sufficient to support a conclusion that Black failed to overcome the presumption that the decision not to file the motion to dismiss was within the wide range of permissible discretion and trial strategy. Moreover, except to argue that the district court's reasoning is circular, Black has failed to overcome the presumption and failed to demonstrate that the district court's factual finding was clearly erroneous. We are not required to accept either Black's mere conclusory allegations, unsupported by admissible evidence, or his conclusions of law. Black failed to present evidence sufficient to overcome the presumption that the decision not to file the motion was within the wide range of permissible discretion and trial strategy. Thus, Black failed to make a prima facie case as to each essential element of the ineffective assistance of counsel claim. Accordingly, Black has failed to show error in the district court's conclusion that trial counsel's performance was not deficient.

III.

CONCLUSION

Pursuant to I.C. § 19-4901(b), Black forfeited his post-conviction claim that I.C. § 37-2732B(a)(6)(B) is unconstitutional. Black failed to show that trial counsel rendered ineffective assistance of counsel. Accordingly, the district court did not err in summarily dismissing both claims in Black's petition for post-conviction relief. The judgment dismissing the petition for post-conviction relief is affirmed.

Judge HUSKEY and Judge BRAILSFORD concur.

      Idaho Code § 19-4908 provides:
      All grounds for relief available to an applicant under this act must be raised in his original, supplemental or amended application. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the applicant has taken to secure relief may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental, or amended application.

      Idaho Code § 19-4901(b) provides, in relevant part:
      Any issue which could have been raised on direct appeal, but was not, is forfeited and may not be considered in post-conviction proceedings, unless it appears to the court, on the basis of a substantial factual showing by affidavit, deposition or otherwise, that the asserted basis for relief raises a substantial doubt about the reliability of the finding of guilt and could not, in the exercise of due diligence, have been presented earlier.

      It appears that Black has--to some extent--conflated the State's proposed basis for summary dismissal (that the claim was waived pursuant to I.C. § 19-4908 ) with the actual basis of the district court's ruling (that the claim was forfeited pursuant to I.C. § 19-4901(b) ). Black asserts "the District Court erred as a matter of law on the question of waiver ." (Emphasis added.) Black contends that the district court's "application of [the] waiver provision was based on a guilty plea and the eight-page guilty [plea] form." (Emphasis added.) Black also contends that a "knowing waiver , by definition, necessarily requires the person waiving to have been made aware of what he [is] waiving," and thus "the argument that the constitutionality [of] Idaho Code § 37-2732B [is] waived , pursuant to Idaho Code § 19-4901(b), fails for the simple reason that Appellant was never informed or advised that this statute was subject to a constitutional challenge in the trial court proceedings." (Emphasis added.)
      It is plausible that Black's conflation of the waiver and forfeiture statutes is due, in part, to the district court's interchangeable use of the terms "waived" and "forfeit" at the hearing on the State's motion for summary dismissal. However, the court did not dismiss Black's first claim on the basis that he had waived his constitutional challenge to I.C. § 37-2732B(a)(6)(B). Following the hearing on the State's motion for summary dismissal and submission of post-hearing briefing, the district court determined that Black could have challenged the constitutionality of I.C. § 37-2732B(a)(6)(B) on direct appeal but did not, and thus the claim was forfeited in post-conviction proceedings pursuant to I.C. § 19-4901(b). Insofar as Black argues the court erred by concluding the claim was waived, his argument is misplaced.

      We note that in some instances our Supreme Court has indicated that the district court is "required" to first address the probability of success of the asserted motion. See Huck v. State , 124 Idaho 155, 158, 857 P.2d 634, 637 (Ct. App. 1993). However, Black does not directly challenge the district court's procedure in applying the Wurdemann standard. Nonetheless, we believe the better practice is to first address the probability of success of the asserted motion.

      However, the district court noted, "[T]he Court will observe that none of [Black's nine challenges to section 37-2732B(a)(6)(B) 's constitutionality] strike the Court as at all likely to have succeeded." The court also stated that I.C. § 37-2732B"doesn't appear to be constitutionally infirm, at least not on any of Black's theories."

      The summary disposition proceedings in this case occurred after issuance of the Wurdemann decision.


text:
    Adam SOMERS and Breea Somers, Plaintiffs and Appellants, v. CHERRY CREEK DEVELOPMENT, INC. and RJC Investment, Inc., Defendants and Appellees.
    DA 18-0382
    Supreme Court of Montana.
    Submitted on Briefs: February 6, 2019 Decided: April 30, 2019
    For Appellants: D. Michael Eakin, Eakin, Berry & Bryciel, PLLC, Billings, Montana
    For Appellees: Christopher T. Sweeney, Peter M. Damrow, Moulton Bellingham, PC, Billings, Montana
   Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 Plaintiffs Breea and Adam Somers appeal from an order of the Thirteenth Judicial District Court, Yellowstone County, granting summary judgment to Defendants Cherry Creek Development, Inc. and RJC Investment, Inc. We affirm.

¶2 We restate the issue on appeal as follows:

Whether the 2009 version of the Montana Retail Installment Sales Act (RISA) confers a private right of action.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On August 13, 2010, the Somers purchased a mobile home for $ 54,300 from Cherry Creek Development, Inc. (Cherry Creek) in Billings, Montana. The Somers paid $ 4,344 down and financed the remainder through an installment contract assigned to RJC Investment, Inc. (RJC Investment). The installment contract required the Somers to make monthly payments of $ 552 over a fifteen-year period and to pay a $ 50 late fee for any late payments.

¶4 Prior to any default action filed against them, the Somers filed a putative class action in District Court seeking a declaratory judgment for themselves and all others similarly situated that the Montana Retail Installment Sales Act (RISA), § 31-1-201, et seq. , MCA (2009), barred Cherry Creek and RJC Investment from recovery of any interest, finance charges, or late charges on installment contracts for the purchase of a manufactured home. Cherry Creek and RJC Investment answered and counterclaimed alleging the Somers defaulted on the installment contract. Cherry Creek and RJC Investment and the Somers filed cross-motions for summary judgment. On May 16, 2017, the District Court granted summary judgment to Cherry Creek and RJC Investment on the basis that RISA did not confer a private cause of action, but did not rule on Cherry Creek and RJC Investment's counterclaim.

¶5 On June 20, 2017, the Somers filed a M. R. Civ. P. 59 motion to alter or amend the judgment, which the District Court denied on the basis that no unresolved claims existed and RISA did not confer a private cause of action. On October 19, 2017, Cherry Creek and RJC Investment and the Somers filed a joint motion to dismiss Cherry Creek and RJC Investment's counterclaim against the Somers. The Somers had become current on their payments to Cherry Creek and RJC Investment and were no longer in default. However, Cherry Creek and RJC Investment reserved the right to pursue new litigation against the Somers should they default in the future. The parties further requested that the District Court delay entry of judgment two months for the parties to discuss potential resolution. The parties did not resolve the matter, and on June 18, 2018, the District Court entered a final judgment granting summary judgment to Cherry Creek and RJC Investment. The Somers appeal.

STANDARD OF REVIEW

¶6 This Court reviews a district court's grant or denial of summary judgment de novo using the same M. R. Civ. P. 56(c) criteria applied by the district court. Lone Moose Meadows, LLC v. Boyne USA, Inc. , 2017 MT 142, ¶ 7, 387 Mont. 507, 396 P.3d 128. Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. M. R. Civ. P. 56(c)(3). This Court draws all reasonable inferences from the offered proof in favor of the party opposing summary judgment.

Maier v. Wilson , 2017 MT 316, ¶ 15, 390 Mont. 43, 409 P.3d 878.

DISCUSSION

¶7 Whether the 2009 version of the Montana Retail Installment Sales Act (RISA) confers a private right of action.

¶8 The applicable provision of RISA states:

Penalties.
(1) Any person who knowingly violates a provision of this part or engages in the business of a sales finance company in this state without a license as provided in this part is guilty of a misdemeanor and upon conviction shall be punished by a fine of not more than $ 500 or by imprisonment for not more than 6 months, or both.
(2) Any person violating 31-1-231 through 31-1-243, except as the result of an accidental and bona fide error of computation, shall be barred from recovery of any finance, delinquency, or collection charge on the contract.

Section 31-1-203, MCA (2009).

¶9 On appeal, the Somers assert six violations of §§ 31-1-231 through -243, MCA, by Cherry Creek and RJC Investment, including that Cherry Creek and RJC Investment: (1) failed to disclose the finance charge; (2) failed to disclose the total amount of the time balance, stated as one sum in dollars and cents; (3) prematurely assessed late fees; (4) charged excessive late fees; (5) failed to disclose the number of payments; and (6) did not contain the required notice in the installment contract. The Somers argue they have a private cause of action under RISA, § 31-1-203, MCA (2009), barring Cherry Creek and RJC Investment from recovery of any finance, delinquency, or collection charge on the installment contract. In the alternative, the Somers argue for the first time on appeal that it is not necessary to find a private right of action under RISA, because the Uniform Declaratory Judgment Act, § 27-8-102, MCA, provides a private cause of action for determination of rights under a contract.

¶10 "It is well established that laws existing at the time a contract is formed become part of the contract." Earls v. Chase Bank of Tex., N.A. , 2002 MT 249, ¶ 12, 312 Mont. 147, 59 P.3d 364. The Somers entered the installment contract in August 2010 under the 2009 version of RISA. The 2009 version of RISA therefore controls.

¶11 "[A] party is not entitled to obtain private enforcement of a regulatory statute that is not intended by the legislature to be enforceable by private parties." Mark Ibsen, Inc. v. Caring for Montanans, Inc. , 2016 MT 111, ¶ 41, 383 Mont. 346, 371 P.3d 446. However, this Court has recognized that under certain limited circumstances, the Legislature's failure to specify a private cause of action "is not inconsistent with an intent on its part to have such a remedy available to the persons benefitted by its legislation." Wombold v. Assocs. Fin. Servs. Co. of Mont., Inc. , 2004 MT 397, ¶ 37, 325 Mont. 290, 104 P.3d 1080 (citing Cannon v. Univ. of Chicago , 441 U.S. 677, 717, 99 S. Ct. 1946, 1968 (1979) ). Therefore, the "question of whether a statute creates a private cause of action by implication is a matter of statutory construction." Wombold , ¶ 31. In Wombold , this Court developed a four-factor test ( Wombold test) to determine whether a statutory scheme confers a private cause of action. The Wombold test leads this Court to determine whether the Somers' interpretation of RISA: (1) is consistent with RISA as a whole; (2) reflects legislative intent considering the plain language of § 31-1-203, MCA (2009); (3) is reasonable and avoids an absurd result; and (4) is consistent with the Department of Administration's (Department) construction of RISA, should one exist. Wombold , ¶ 31 ; Mark Ibsen , ¶¶ 47-49.

¶12 First, the interpretation that RISA conveys a private right of action is not consistent with this Court's reading of RISA as a whole. The purpose of RISA was to establish an administrative process through which to protect retail buyers from holders of retail installment contracts not in compliance with the provisions of the Act. RISA authorizes the Department to: "adopt rules necessary to carry out the intent and purposes of [RISA]"; to investigate those "it considers necessary" to ensure compliance with RISA; to require licensure to engage in the business of a sales finance company in Montana; and to deny, suspend, or revoke licenses for "failure to comply with any provision of this part relating to retail installment contracts," "defrauding any retail buyer to the buyer's damage," or fraudulent misrepresentation. Sections 31-1-211, -212(1), -221, -222(1), MCA (2009). RISA requires the Department to enforce its provisions, not private parties. The Somers' argument does not pass the first prong of the Wombold test.

¶13 Second, the plain language of § 31-1-203, MCA (2009), does not reflect legislative intent to confer a private right of action. While the Somers argue that the plain language of § 31-1-203(4), MCA, creates a private right of action, the Somers cite the 2017 version of RISA. The 2009 version of RISA controls and does not contain this provision. Section 31-1-203(2), MCA (2009), states: "Any person violating 31-1-231 through 31-1-243, except as the result of an accidental and bona fide error of computation, shall be barred from recovery of any finance, delinquency, or collection charge on the contract." A plain reading of this provision does not expressly indicate the Legislature's intent to include a private right of action.

¶14 The Somers argue that the purpose of RISA is to protect consumers, and that this Court has previously held that "under certain limited circumstances," the plain language of a statute can support the conclusion that an implied private right of action exists when the statute "has granted a class of persons certain rights." Wombold , ¶¶ 31, 37 (citing Cannon , 441 U.S. at 695, 99 S.Ct. at 1956 ). "[T]he [L]egislature would not enact a remedial statute granting rights to an identifiable class without enabling members of that class to enforce those rights. Without an implicit creation of a remedy, the statute is meaningless." Wombold , ¶ 37.

¶15 RISA, however, does not grant a class of persons certain rights. RISA is an administrative statute authorizing the Department to enforce its provisions. Retail buyers are not left without a remedy under this Court's interpretation of RISA. Pursuant to § 31-1-212(2), MCA, a "retail buyer having reason to believe that this part relating to the buyer's retail installment contract has been violated may file with the [D]epartment a written complaint setting forth the details of the alleged violation."

¶16 Furthermore, in Wombold , this Court found the inclusion of an attorney fees provision in the Montana Consumer Loan Act (CLA), Title 32, Chapter 5, MCA, indicative of legislative intent to allow for an implied private right of action. Wombold , ¶ 43. This Court held,

the express language allowing the prevailing party to recover attorney fees 'in any action on a contract entered into pursuant to the provisions of the [CLA]' so long as such an award is provided for in the parties' contract, is in accord with the ... conclusion that an implied right of action is consistent with the legislative purpose in enacting the act.

Wombold , ¶ 43 (citing § 32-5-407(1), MCA ). RISA contains no such attorney fee recovery provision. Accordingly, this Court finds no express or implied private right of action based on a plain reading of RISA. The Somers' argument does not pass the second prong of the Wombold test.

¶17 Third, this Court agrees with the District Court's finding that vesting the cause of action solely in the Department to bar sellers from collecting finance charges is not an absurd result. While this Court has held that the enactment of a remedial statute granting rights to an identifiable class without enabling members of that class to enforce those rights is an absurd result, such is not the case here. See Wombold , ¶ 37 ; Mark Ibsen , ¶ 33. As stated above, RISA is an administrative statute through which retail buyers may complain to the Department when holders of retail installment contracts violate provisions of RISA. See § 31-1-212(2), MCA. Expansion of this Court's interpretation of RISA to include a private right of action "is neither reasonable nor required to avoid absurd results." Mark Ibsen , ¶ 48. The Somers' argument fails the third prong of the Wombold test.

¶18 Finally, the legislative history under RISA is sparse and does not provide clear guidance as to whether the Department itself placed a construction on the statute. Nevertheless, the Legislature's intent to grant authority to the Department to carry out the intent of RISA is express and persuasive.

¶19 The Somers are not entitled to obtain private enforcement of RISA because a plain reading of RISA supports the conclusion that the Legislature did not intend RISA to be enforceable by private parties. Rather, the Legislature intended the statute to be enforced administratively by the Department. Because this Court agrees that no genuine issue of material fact exists and Cherry Creek and RJC Investment are entitled to judgment as a matter of law, the District Court did not err in granting summary judgment to Cherry Creek and RJC Investment.

¶20 Moreover, this Court will not address the propriety of whether a declaratory judgment action may be used to determine the existence of a potential contract defense. This issue was not raised below and the District Court had no opportunity to address the issue. The Court declines to address a new legal theory raised for the first time on appeal. McCoy v. First Citizens Bank , 2006 MT 307, ¶ 23, 335 Mont. 1, 148 P.3d 677 ; Nelson v. Davis , 2018 MT 113, ¶ 13, 391 Mont. 280, 417 P.3d 333 ; Becker v. Rosebud Operating Servs. , 2008 MT 285, ¶ 17, 345 Mont. 368, 191 P.3d 435 ; In re M.C. , 2017 MT 252, ¶ 14, 389 Mont. 78, 403 P.3d 1266 (holding "it is fundamentally unfair to fault the trial court for failing to rule correctly on an issue it was never given the opportunity to consider"). In "order to preserve a claim or objection for appeal, an appellant must first raise that specific claim or objection in the district court." In re M.C. , ¶ 14.

¶21 In District Court, the Somers filed a putative class action seeking a declaratory judgment for themselves and all others similarly situated that RISA barred Cherry Creek and RJC Investment from recovery of any interest, finance charges, or late charges on the installment contract. They argued that RISA conferred a private cause of action and Cherry Creek and RJC Investment violated provisions of RISA. Accordingly, the District Court addressed those arguments. The Somers now argue on appeal that the Uniform Declaratory Judgment Act, § 27-8-102, MCA, entitles them to a declaratory judgment assessing the validity of a defense even before an affirmative action has been filed. This argument was not raised below and will not be addressed here. In this appeal, we decline to opine regarding the validity of potential defenses available to the Somers in separate contract actions alleging default by the Somers on the installment contract.

CONCLUSION

¶22 The 2009 version of RISA controls in this case and does not confer a private cause of action.

¶23 Affirmed.

We concur:

MIKE McGRATH, C.J.

JAMES JEREMIAH SHEA, J.

BETH BAKER, J.

DIRK M. SANDEFUR, J.

      On November 2, 2010, the 2009 version of RISA was amended and approved by the general election. The amendment added a sentence to § 31-1-203(2), MCA (2009), providing: "In addition to other penalties provided by law, a violation of subsection (3) and a contract made in violation of the finance charge limitations imposed by 31-1-241 is a violation of [the Montana Consumer Protection Act]." The amendment applied to transactions entered on or after January 1, 2011, and was improperly cited by the District Court. The Legislature further excluded mobile homes from the definition of "goods" pursuant to the 2011 version of RISA. Section 31-1-201, MCA (2011).


text:
    OFFICE OF STATE PUBLIC DEFENDER, Petitioner, v. Steven T. FAGENSTROM, Respondent.
    OP 19-0133
    Supreme Court of Montana.
    Decided: May 1, 2019
    For Petitioner: Rhonda Schaffer, Director, Peter B. Ohman, Administrator, Office of State Public Defender, Bozeman, Montana
    For Respondent: Honorable Steven T. Fagenstrom, self-represented, Cascade County Justice of the Peace, Great Falls, Montana
    OPINION AND ORDER
   Justice Dirk M. Sandefur delivered the Opinion and Order of the Court.

¶1 By petition filed March 1, 2019, the Montana Office of State Public Defender (OPD) petitions this Court to exercise supervisory control over the Cascade County Justice Court regarding certain orders directing OPD to appoint a public defender to represent the underlying criminal defendant on the sole charged offense of theft, a misdemeanor in violation of § 45-6-301(1), MCA. Pursuant to §§ 47-1-104(4) and 46-8-101(3), MCA, OPD asserts that the Justice Court has no authority to compel it to provide a public defender to represent an indigent criminal defendant charged with a non-jailable misdemeanor offense. OPD thus asserts that the Justice Court is proceeding under a mistake of law for which OPD has no right of ordinary appeal, thereby resulting in gross injustice by requiring it to act in excess of its statutory duty and authority. In response, the Justice Court contrarily asserts that the underlying defendant has an unwaived right to government-provided counsel under the Sixth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, and Article II, Section 24, of the Montana Constitution. The Justice Court further asserts that "any legislation," such as § 46-8-101, MCA, "enacted for the purpose of taking away a [d]efendant's right to [counsel] and thus save money is unconstitutional." Upon consideration of OPD's petition, the Justice Court's response, limited facts of record, and governing law, we find that exercise of supervisory control is necessary and proper and accordingly reverse and remand for further proceedings consistent with this Opinion and Order.

ISSUES PRESENTED

1. Whether exercise of supervisory control is necessary and proper in this case?
2. Whether the Justice Court erroneously denied OPD's motion to rescind its order for appointment of counsel pursuant to §§ 47-1-104(4) and 46-8-101(3), MCA ?

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Alleging that the defendant exercised "unauthorized control" with purpose to deprive the owner of property with an alleged value of $ 650, the State charged the defendant by complaint with the offense of theft, a misdemeanor in violation of § 45-6-301(1), MCA. Based on the limited record provided, the charge is currently pending in justice court on an unsworn, standard-form Notice to Appear and Complaint issued by a deputy of the Cascade County Sheriff on August 28, 2018, referencing the alleged commission of the offense on that same date. The complaint does not specify whether the offense is charged as a first or subsequent offense. However, in subsequent orders regarding appointment of counsel on December 10, 2018, January 23, 2019, and February 27, 2019, the Justice Court asserts that the defendant is charged with first-offense misdemeanor theft, in violation of § 45-6-301, MCA.

¶3 At her combined initial appearance and arraignment on the charge in or about early December 2018, the defendant pled not guilty and, in response to questions from the court, stated her desire for counsel, stated she could not afford to hire private counsel, and requested a public defender. On December 10th, the court issued a written order directing OPD to appoint a public defender. However, upon OPD's motion asserting that § 45-6-301(7)(a), MCA (2017), precludes "jail time" as an available sentencing option on a conviction for first-offense misdemeanor theft, the Justice Court issued a subsequent written order rescinding its prior order for appointment of counsel.

¶4 By sua sponte order filed January 23, 2019, the Justice Court reversed course a second time and, without elaboration, again ordered OPD to appoint counsel to represent the defendant on "1st Offense" theft. OPD responded and again moved the court to rescind the order pursuant to §§ 47-1-104(4)(a)(i) and 45-6-301(7)(a), MCA (2017). Following a "brief hearing on the motion," the Justice Court subsequently issued written findings of fact, conclusions of law, and judgment denying the motion. Though expressly noting that the case was charged as a first offense and that § 45-6-301(7)(a) (2017) thus precluded incarceration as a sentencing option, the Justice Court denied the motion to rescind on the asserted ground that an uncounseled conviction on a first offense would, as a matter of law, render any second or subsequent conviction for theft "constitutionally infirm." OPD seeks immediate review by supervisory control.

DISCUSSION

¶5 1. Whether exercise of supervisory control is necessary and proper in this case?

¶6 This Court has "general supervisory control over all other [Montana] courts." Mont. Const. art. VII, § 2 (2). We generally exercise supervisory control only by discretionary writ under extraordinary circumstances including, as pertinent here, where a lower "court is proceeding under a mistake of law" which otherwise will result in significant injustice for which ordinary appeal will not be an adequate remedy. M. R. App. P. 14(3) ; Park v. Mont. Sixth Judicial Dist. Court , 1998 MT 164, ¶ 13, 289 Mont. 367, 961 P.2d 1267. In this track, judicial economy and avoidance of "inevitable procedural entanglements" are "appropriate reasons" for exercise of supervisory control. Truman v. Mont. Eleventh Judicial Dist. Court , 2003 MT 91, ¶ 15, 315 Mont. 165, 68 P.3d 654. However, we will not allow use of supervisory control to circumvent the ordinary appeal process.

¶7 As a threshold matter, OPD is not a party to the underlying action. However, it is nonetheless uniquely injected into the underlying proceeding by law as an ancillary third party directly subject to and affected by lower court orders directing it how to proceed within its limited statutory authority. See §§ 47-1-104(1), (3), (4)(a), MCA. As a matter of law, OPD has no right or remedy of appeal in this context. See §§ 46-20-101, -103, -104, MCA ; M. R. App. P. 1(2), 4(1), 4(2)(a), 4(4)(a). OPD's petition raises a meritorious issue of law as to whether the Justice Court is acting under a mistake of law that will require OPD to act in excess of its limited statutory duty and authority. Under these extraordinary circumstances, we hold that exercise of supervisory control is necessary and proper.

¶8 2. Whether the Justice Court erroneously denied OPD's motion to rescind its order for appointment of counsel pursuant to §§ 47-1-104(4)

and 46-8-101(3), MCA ?

¶9 OPD "is required to deliver public defender services in all courts in this state" in accordance with Title 47, MCA. Section 47-1-104(1), MCA. See also §§ 46-8-101(2), -104(1), MCA (referencing Title 47, MCA). A "court may order" OPD to assign a public defender in any criminal case where a defendant desires the assistance of counsel, is financially unable to retain counsel, and "is entitled [by law ] to assistance of counsel at public expense...." See § 47-1-104(4)(a), MCA (emphasis added). As of 2017, upon request of a criminal defendant who asserts inability to retain private counsel, "the court shall order [OPD] ... to assign counsel to represent the defendant" pending determination of eligibility if the charged offense is either a felony or "a misdemeanor" for which "incarceration is a sentencing option...."

Section 46-8-101(2), MCA. Though certainly not the model of clarity, § 46-8-101(2) - (3), MCA, manifestly provides that the assistance of counsel at public expense is not available regarding a charged misdemeanor that is either not punishable by incarceration by definition of the offense or in regard to which the court may discretionarily waive incarceration as a penalty by order at the defendant's initial appearance.

¶10 The offense of theft involving property not exceeding $ 1,500 in value is a misdemeanor offense. See §§ 45-1-201, 45-2-101(42), MCA, § 45-6-301(7), MCA (2017). As a matter of law, second or subsequent offenses of misdemeanor theft are subject to incarceration upon conviction. See § 45-6-301(7), MCA (2017). However, as of 2017, the maximum penalty for first-offense theft of property not exceeding $ 1,500 in value, is a $ 500 fine without potential for incarceration. Section 45-6-301(7)(a), MCA (2017). Thus, pursuant to §§ 45-6-301(7)(a), MCA (2017), 46-8-101(2) - (3), 47-1-104(1) and (4)(a), MCA, OPD has no duty or authority to appoint counsel to represent a criminal defendant charged with first-offense theft of property not exceeding $ 1,500 in value.

¶11 The Justice Court essentially cursorily asserts that § 46-8-101(2) - (3), MCA, contravenes the right to counsel separately guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article II, Section 24, of the Montana Constitution. However, the Sixth Amendment does not guarantee the right to counsel at public expense regarding misdemeanor offenses not punishable by incarceration, regardless of whether an uncounseled misdemeanor may later be a basis for sentencing enhancement upon a subsequent conviction for a jailable offense. See Nichols v. United States , 511 U.S. 738, 743-48, 114 S. Ct. 1921, 1925-28, 128 L.Ed.2d 745 (1994) ; Scott v. Illinois , 440 U.S. 367, 370-73, 99 S. Ct. 1158, 1160-62, 59 L.Ed.2d 383 (1979) ; State v. Spotted Eagle , 2003 MT 172, ¶¶ 15-21, 34, 316 Mont. 370, 71 P.3d 1239 (applying Nichols and Scott ). We are aware of no authority or other basis supporting the proposition that Article II, Section 24, of the Montana Constitution provides any greater right than the Sixth Amendment in this context. We hold that the Justice Court erroneously concluded that § 46-8-101, MCA, contravenes the Sixth Amendment and Montana constitutional rights to assistance of counsel. Thus, we hold further that the Justice Court erroneously ordered OPD to appoint counsel to represent the defendant in this case.

¶12 As always, the risk of undercharging a misdemeanor offense remains on the State to avoid through reasonable diligence in the initial charging decision and, as necessary, by timely motion to amend or dismiss. If a court is concerned that it does not have sufficient information upon which to timely exercise its discretion to waive incarceration on misdemeanor prosecution pursuant to § 46-8-101(3), MCA, the court is certainly free in its sound discretion to order the State to make inquiry of the appropriate criminal justice information system and timely report to the court on the defendant's criminal history prior to further proceedings.

¶13 IT IS HEREBY ORDERED that OPD's petition for writ of supervisory control is GRANTED.

¶14 IT IS FURTHER ORDERED that the Justice Court's above-referenced orders ordering OPD to provide a public defender to represent the underlying defendant on the offense of first-offense misdemeanor theft are hereby REVERSED. This matter is hereby remanded to the Justice Court for further proceedings consistent with this Opinion.

Dated this 1st day of May, 2019.

We Concur:

MIKE McGRATH, C.J.

INGRID GUSTAFSON, J.

BETH BAKER, J.

JIM RICE, J.

      See State v. McLaughlin , Cause No. CR-265-2018-660, Cascade County Justice Court.

      See Order Appointing Counsel , filed January 23, 2019, and Order Denying Motion to Rescind Public Defender Appointment, filed February 27, 2019.

      The record presented does not indicate whether the State subsequently filed a more formal case-specific complaint signed by the County Attorney supported by affidavit or verification.

      If the charged offense is a misdemeanor for which incarceration is a sentencing option, "the court may," in its discretion by order at the initial appearance, waive incarceration as a sentencing option upon conviction. Section 46-8-101(3), MCA. If the court so waives incarceration as a sentencing option upon a misdemeanor, "a public defender may not be assigned" and the court shall further "inform the defendant that the assistance of counsel at public expense ... is not available" but that it will give the defendant time "to consult with an attorney before" the defendant pleads to the offense. Section 46-8-101(3), MCA.


author: LEHMAN, Chief Justice.

text:
    2002 WY 51
    Daniel R. TRUJILLO, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 00-266.
    Supreme Court of Wyoming.
    April 9, 2002.

      Kenneth M. Koski, Public Defender; Donna Domonkos, Appellate Counsel; and Car-rol S. Nelson, Representing Appellant.
    Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia Tibbetts, Senior Assistant Attorney General; Devon O'Connell Coleman, Acting Faculty Director, Prosecution Assistance Program; and Tammy L. Farmer, Student Intern., Representing Appellee.
    Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
   LEHMAN, Chief Justice.

[T1] Appellant Daniel Trujillo was convicted of aggravated assault and battery in violation of Wyo. Stat. Ann. § 6-2-502(a)(if) (LexisNexis 2001). Trujillo seeks reversal of his conviction, claiming prosecutorial misconduct during closing argument. We agree that certain statements made by the prosecutor in closing were improper; however, Trujillo has not demonstrated that the improper remarks rose to the level of plain error which would warrant reversal. Accordingly, the Judgment and Sentence is affirmed.

ISSUES

[12] Trujillo presents a single issue for review:

Prosecutorial misconduct occurred, denying Appellant a fair trial, when the prosecutor made improper comments and appeals in closing argument with no curative instruction from the trial court.

The State rephrases the issue in this way:

Was Appellant denied a fair trial by the statements made by the prosecutor during closing arguments?

FACTS

[T3] On April 28, 2000, Daniel Trujillo was convicted in Sweetwater County of aggravated assault and battery in violation of Wyo. Stat. Ann. § 6-2-502(a)(ii) following a four-day jury trial. The evidence the State presented at trial through witness testimony and exhibits indicated that on September 14, 1999, Trujillo found his former girlfriend, Karen Gallegos, in the bedroom of another man, Guillermo "Memo" Barrera. Apparent ly enraged at discovering Ms. Gallegos asleep in Barrera's bed, Trujillo grabbed her by the hair and then dragged her through the apartment and up a flight of stairs onto a grassy area near the apartment complex. Once outside, while ignoring her pleas to stop, Trujillo repeatedly kicked the minimally clad Ms. Gallegos in the head and ribs with his shoes. Trujillo finally ceased the beating after a neighbor yelled at him to stop and approaching police sirens could be heard. Ms. Gallegos suffered multiple cuts and bruises, black eyes, a perforated eardrum and a basilar skull fracture as a result of Trujillo's kicks. Police interviewed Trujillo, the victim Ms. Gallegos, and various other witnesses at the scene. Trujillo was not arrested that evening, but was charged thereafter by the Sweetwater County Attorney's Office with assault and battery with a deadly weapon, the weapon being his shoes. On June 12, 2000, following his jury conviction, the district court entered its judgment and sentence sentencing Trujillo to seven to ten years in the Wyoming State Penitentiary. This timely appeal followed asserting the prosecutor made impermissible statements during his closing argument which denied appellant a fair trial.

STANDARD OF REVIEW

[T4] Trujillo made no objection to the prosecutor's closing argument. The general rule in Wyoming is that a failure to interpose a timely objection to improper argument is treated as a waiver, unless the prosecutor's misconduct is so flagrant as to constitute plain error, requiring reversal. Montoya v. State, 971 P.2d 134, 136 (Wyo.1998); Armstrong v. State, 826 P.2d 1106, 1115 (Wyo.1992). A plain error analysis requires the appellant to demonstrate the violation of a clear and unequivocal rule of law, clearly reflected in the record, resulting in the abridgment of a substantial right of the party to his material prejudice. Arevalo v. State, 939 P.2d 228, 232 (Wyo.1997). We are reluctant to find plain error in closing arguments "lest the trial court becomes required to control argument because opposing counsel does not object." James v. State, 888 P.2d 200, 207 (Wyo.1994) (quoting Taul v. State, 862 P.2d 649, 659 (Wyo.1993)).

DISCUSSION

[15] In analyzing claims of prosecu-torial misconduct, we consider the prosecutor's argument in the context in which it was made and with regard to the evidence produced at trial. Taul, 862 P.2d at 659. Over the years, on innumerable occasions when deciding this issue, this court has approved various portions of the ABA Standards for Criminal Justice sections entitled "Argument to the Jury." Section 3-5.8 pertains to the Prosecution Function and § 4-7.8 to its companion Defense Function. See e.g. Browder v. State, 639 P.2d 889, 893 (Wyo.1982); Harper v. State, 970 P.2d 400, 403 (Wyo.1998); Montoya v. State, 971 P.2d at 136; Mazurek v. State, 10 P.3d 531, 542 (Wyo.2000). The Commentary to § 3-5.8 (footnotes omitted) concludes:

The prosecutor's argument is likely to have significant persuasive force with the jury. Accordingly, the scope of argument must be consistent with the evidence and marked by the fairness that should characterize all of the prosecutor's conduct. Prosecutorial conduct in argument is a matter of special concern because of the possibility that the jury will give special weight to the prosecutor's arguments, not only because of the prestige associated with the prosecutor's office but also because of the fact-finding facilities presumably available to the office. Unfortunately, some prosecutors have permitted an excess of zeal for conviction or a fancy for exaggerated rhetoric to carry them beyond the permissible limits of argument. Of course, a prosecutor must be free to present arguments with logical foree and vigor. As the Supreme Court has remarked, however, "while he may strike hard blows, he is not at liberty to strike foul ones." To attempt to spell out in detail what can and cannot be said in argument is impossible, since it will depend largely on the facts of each case. Nevertheless, certain broad guidelines based on the function of argument and the experience of courts in typical situations can be established.

We herein set out in foto the applicable Standards that generally delineate the appropriate limits of a prosecutor's arguments to a jury in the state of Wyoming. We again urge all prosecutors, defense counsel, and trial courts to become more familiar with the Standards and accompanying Commentary as well as this court's abundant precedent on the subject and govern their conduct at trial accordingly.

(a) The prosecutor may argue all reasonable inferences from evidence in the record. It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw.
(b) It is unprofessional conduct for the prosecutor to express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant. *
(c) The prosecutor shouldﬂ not use arguments calculated to inflame the passions or prejudices of the jury.
(d) The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury's verdict.
(e) It is the responsibility of the court to ensure that final argument to the jury is kept within proper, accepted bounds.

[T 6] With specific regard to subsection (e), this is the view adopted by the United States Supreme Court. The Court, in reviewing a prosecutor's remarks for plain error as a consequence of defense counsel's failure to object at trial, stated, "Iwle emphasize that the trial judge has the responsibility to maintain decorum in keeping with the nature of the proceeding; 'the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct." " United States v. Young, 470 U.S. 1, 10, 105 S.Ct. 1038, 1043-44, 84 L.Ed.2d 1 (1985) (quoting Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 77 L.Ed. 1821 (1983)). While accepting subsection (e) as an ultimate statement of legal fact, this court continues to believe that:

The first responsibility for the deterrence of contended improper conduct by the prosecution belongs to appellant's trial counsel. The prompt objection to misconduct allows the trial court to weigh the impact of the comments and assess curative measures. These measures occupy a varied range including: simply sustaining the objection; sustaining the objection and admonishing or instructing the jury to ignore the comments; or, for the most flagrant abuse, ordering a mistrial or a directed verdict for the defendant where proper objections were made.
The trial counsel initiates the curative process with the decision to object. However, trial counsel, acting as a zealous advocate for his client, may make a tactical decision not to object perhaps from the belief that drawing attention to the prosecutor's comments lends credibility or perhaps because in trial counsel's estimation, the jury has not been swayed by the comment. The fact that such routine strategic decisions are made during the course of a trial supports the well-reasoned rule that failure to object is considered a waiver.

Dice v. State, 825 P.2d 379, 384 (Wyo.1992) (citations omitted).

[17] Having herein outlined the general law to be applied, we now turn to the specific remarks complained of to determine whether they rise to the level of plain error. The prosecutor began his closing argument by stating:

Ladies and gentlemen of the jury, you don't even see this on t.v. You don't see this in the movies. Think for a minute. Has anyone ever seen a t.v. show where a man grabbed a woman by the hair and took her down the hall, up the stairs by her hair and threw her down on the ground and kicked her in the face repeatedly? There's [sic] outeries all over the place in this country about the media and how they're showing too much violence, they show shootings, they show punching, but they don't show men kicking women in the head.

[18] Appellant characterizes this argument as an improper appeal to the jury's passions and prejudices citing Armstrong v. State, 826 P.2d at 1116, and Hopkinson v. State, 632 P.2d 79, 145 (Wyo.1981). It has been stated often by this court that: "The question of the propriety of a given statement is not one that can be decided by reference to a judicial checklist of improper words or prohibited phrases to determine if error is present. Of necessity, each statement must be considered in the context in which it was made and in the context of the evidence produced at trial." Barela v. State, 787 P.2d 82, 83 (Wyo.1990). Essentially, the prosecutor's remarks are a reasonable summation of the evidence adduced at trial and thus were not improper.

[19] Next, appellant alleges that the prosecutor's final remarks made during his rebuttal argument constituted an improper "send a message" type appeal to the jury urging them to "remedy society's woes" by convicting the defendant. This court has explicitly disapproved such arguments finding "(tlhe fear in allowing such appeals is that the accused will be convicted for reasons wholly irrelevant to her guilt or innocence." Gayler v. State, 957 P.2d 855, 861 (Wyo.1998) (citing United States v. Monaghan, 741 F.2d 1434, 1441 (D.C.Cir.1984), cert. denied 470 U.S. 1085, 105 S.Ct. 1847, 85 L.Ed.2d 146 (1985)). "Jurors may be persuaded by such appeals to believe that, by convicting a defendant, they will assist in the solution of some pressing social problem. The amelioration of society's woes is far too heavy a burden for the individual eriminal defendant to bear." 957 P.2d at 861 (quoting Monaghan, 741 F.2d at 1441). Similarly, "send a message" arguments by prosecutors to juries are universally condemned. The Mississippi Supreme Court in Williams v. State, 522 So.2d 201 (Miss.1988) simply yet colorfully explained the problem with these arguments:

The jurors are representatives of the community in one sense, but they are not to vote in a representative capacity. Each juror is to apply the law to the evidence and vote accordingly. The issue which each juror must resolve is not whether or not he or she wishes to "send a message" but whether or not he or she believes that the evidence showed the defendant to be guilty of the erime charged. The jury is an arm of the State but it is not an arm of the prosecution. The State includes both the prosecution and the accused. The function of the jury is to weigh the evidence and determine the facts. When the prosecution wishes to send a message they should employ Western Union. Mississippi jurors are not messenger boys.

Id. at 209 (emphasis added).

[110] In the instant case, the prosecutor's pertinent remarks follow, with the statements specifically alleged as error by appellant emphasized:

So as I end up, I'll give you a few categories here. You've got wrongs, you've got evils, and you've got crimes, and every day, thousands of each are inflicted on people. Now, there are wrongs that are not evil, and there are evils that are not wrongs. There are wrongs that are not crimes, there are evils that are not crimes, so what we're here for is the latter; the crime. But see, the jury decides whether it's a felony or a misdemeanor. That's why we all stand up when you come in the room. It's all up to you.
In a few minutes, you're going to go into the jury room, and it's all up to you, and nobody's going to ask how you came to your conclusion, nobody's going to question you. Onee we sit down and you go in that room, it's you who decides whether this was battery or an agg-agg assault is what we call it. I'm not asking you-the State is not asking you to find that this man is evil or that he's always a wrong doer or that he commits a lot of crimes. That's not the point here. What we're talking about is the act he committed on that date, and we would submit to you that the act that he committed on that day was wrong, and it was evil, and finally, it was a crime.
All right. Talked about the declaration, talked about equal justice in the law, and after that, when we were in a civil war, President Lincoln said all that is required for evil to triumph is for good men to stand by and do nothing. Times have changed, haven't they? All that is required for evil to triumph is for good men to stand by and do nothing. Please. Do something about this. Do something. .

[T11] As presented, the prosecutor did not explicitly ask the jury to "send a message." His comments taken as a whole can probably more accurately be described as a rhetorical device. Nevertheless, to the extent that they can be construed to make a prediction of the consequences of the jury's verdict, ABA Standard on Criminal Justice 3-5.8(d), they are inappropriate. However, we cannot say that when reviewed under the plain error standard, as required by the lack of contemporaneous objection, the appellant has demonstrated the existence of a clear and unequivocal rule of law which the particular facts transgress in a clear and obvious, not merely arguable, way.

[112] Appellant next asserts that prosecutorial misconduct arose from the following statements made when the prosecutor was attempting to explain the concept of "bodily injury" to the jury:

"Bodily injury" means physical pain or impairment of any physical condition. Look at the pictures and think in your mind, if somebody kicked me in the face twice, would it hurt? Would it hurt?

[1183] Appellant argues this statement is impermissibly inflammatory because the prosecutor was attempting to place the jurors in the shoes of the victim. This court has disapproved this tactic as inflammatory finding that asking the jury to place themselves in the position of the victim injects into the minds of the jurors issues which are broader than the question of the defendant's guilt or innocence. Jeschke v. State, 642 P.2d 1298, 1302 (Wyo.1982). However, again we do not find that the quoted remarks fit that mold sufficiently such as to transgress the rule in a clear and obvious, not merely arguable, way and thus do not rise to the level of plain error.

[114] Lastly, appellant complains of the following closing comments by the prosecutor:

Well, finally, I guess the most disturbing defense argument was she deserved it. She deserved it. She shouldn't have been at Memo's. Does anyone deserve this? Is there any human being that should be treated like this? He just went there to help. Just went there to get her out of this bad situation, but there was no evi-denee there was a bad situation. The only bad situation was once the Defendant got there, and it took him two minutes to turn the victim from a vivacious bank teller into an almost mortally wounded woman.

Appellant objects that any evidence of the "bad situation" the prosecution refers to in his closing argument was barred from presentation through the granting of the State's motion in limine prior to trial. However, our review of the transcript of the motion hearing on this issue indicates that the trial court indicated it would allow the introduction of evidence as to what the defendant alleged he saw relating to drug use when he went to "Memo" Barrera's apartment on the night in question. Moreover, defense counsel had asserted in his opening statement that:

At that point, Danny realized where Karen was, went into the bedroom and pulled her out of there, which he-he fully admits wasn't the right thing to do, but he was beside himself with-with frustration and with fear, actually. She was in a situation that-that could well have been dangerous to her health, contrary to everything that they had been working for with the children, contrary to the kind of life that they had started. They had gotten together, they started going to church, they've really-or he felt like they really got their act together, and here she is in somebody else's bed, doesn't even know how to say his name. Was he upset? Yeah, Danny was upset. Trying to struggle for these values, and he finds this.

Generally, we think the prosecutor's remarks are a fair and reasonable response to defense counsel's opening statement and a comment on the lack of evidence of the "bad situation" alleged by the defendant. However, we do find the prosecutor to have acted improperly by characterizing the defendant's theory of the case as an argument that "she deserved it" and remarking that he found that most disturbing. "The most elementary rule governing the limits of argument is that it must be confined to the record evidence and the inferences that can reasonably and fairly be drawn therefrom." ABA Standards for Criminal Justice 3-5.8 Commentary. Of course the prosecutor could argue to the jury that no one deserved to be a victim of the violence alleged regardless of the particular circumstances from whence it arose. Furthermore, the prosecutor was reasonable in attempting to dissuade the jury from forming the belief that somehow Ms. Gallegos deserved the beating she received. However, where the prosecutor stepped over the line was to tell the jury that that is what the defense had argued to them. In our view that characterization is not an inference that can reasonably and fairly be drawn from record consisting of defense counsel's opening statement or presentation of evidence throughout the course of trial.

[115] Ultimately, however, we do not find the improper statements alleged by appellant to rise to the level of plain error. In Mazurek v. State, 10 P.3d at 589, this court listed several non-exhaustive factors to be utilized to evaluate whether there was prejudicial plain error at the trial level as a result of prosecutorial misconduct. Those factors most relevant to our instant inquiry include 1) the degree to which the prosecutor's remarks have a tendency to mislead the jury and prejudice the accused; 2) whether the remarks were isolated or extensive; 3) the strength of competent proof to establish guilt, absent the remarks; 4) whether the comments were deliberately placed before the jury to divert attention to extraneous matters; 5) the presence or absence of a limiting instruction; 6) whether the error was invited by defense counsel; 7) whether the failure to object could have been the result of tactical decisions; and 8) whether, in light of all the evidence, the error was harmless. - Weighing all of the factors against the record as a whole, we do not think the prosecutor's isolated improper remarks put the fairness of the trial into serious question, requiring reversal and a new trial. Accordingly, appellant's judgment and conviction are affirmed.

      . Section 6-2-502 provides in pertinent part: (a) A person is guilty of aggravated assault and battery if he:

      (ii) Attempts to cause, or intentionally or knowingly causes bodily injury to another with a deadly weapon[.]

      . We also approve Standard 4-7.8 Defense Function, which is virtually identical to the prosecution standard. This court has consistently held that;: "Closing arguments are meant to be just that, arguments premised upon the evidence already submitted to the jury. Prosecutors are no more limiled in their closing than defense counsel. They may review the evidence and suggest to the jury inferences based thereon. The purpose of closing arguments is to allow counsel to offer ways of viewing the significance of the evidence. However, there are limits, not only on prosecutors, but on all attorneys." - Browder v. State, 639 P.2d 889, 893 (Wyo.1982) (emphasis added and citations omitted).

      . The quote, "all that is necessary for the triumph of evil is that good men do nothing" is generally attributed to the eighteen century Irish statesman Edmund Burke.