author: JUSTICE ERDMANN

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. LESLIE McQUISTON, Defendant and Appellant.
    No. 95-216.
    Heard May 14, 1996.
    Submitted on Briefs May 31, 1996.
    Decided August 6, 1996.
    53 St.Rep. 729.
    277 Mont. 397.
    922 P.2d 519.

      For Appellant: William F. Hooks, State Appellate Defender, (argued) Helena.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Elizabeth L. Griffing, Ass’t Attorney General, (argued) Helena; Thomas R. Scott, County Attorney, Dillon.
   JUSTICE ERDMANN

delivered the Opinion of the Court.

Appellant Leslie McQuiston appeals from the judgment and sentence entered by the Fifth Judicial District Court, Beaverhead County, convicting him of sexual intercourse without consent and incest. We affirm.

The issues on appeal are as follows:

1. Did the District Court err in allowing testimony regarding other acts committed by McQuiston?

2. Do McQuiston’s convictions for sexual intercourse without consent and incest violate double jeopardy protections?

3. Did the District Court err in sentencing McQuiston?

FACTS

In February 1989, Heidi McQuiston (Heidi) was nineteen years old. She lived in a mobile home in Dillon with her two children, her natural mother, J ackie Jenkins (Jackie), her brother and her adoptive father, Leslie McQuiston (McQuiston).

Heidi testified that on or about February 10, 1989, McQuiston came into the kitchen where she was standing and asked her to go to his bedroom because he needed to talk to her. Neither her mother nor her brother were home. Heidi followed McQuiston into the bedroom where he shut the door behind her. McQuiston then told Heidi to take her clothes off and told her he would beat her if she refused. Heidi took her clothes off and McQuiston told her to get on the bed. He then disrobed himself and engaged in sexual intercourse with her.

On January 3,1994, McQuiston was charged by Information in the Fifth Judicial District Court, Beaverhead County, with one count of sexual intercourse without consent, a felony, pursuant to § 45-5-503, MCA, and in the alternative, with one count of incest, a felony, pursuant to § 45-5-507, MCA. In a supporting affidavit, the County Attorney stated that Heidi had given birth to three children and that McQuiston was the putative father of all three. Results of paternity tests indicated over a ninety-nine percent probability that McQuiston was the father of Heidi’s three children.

McQuiston moved to dismiss the charge of sexual intercourse without consent claiming that only the incest statute applied to him. The District Court denied the motion and the State then filed an amended Information indicating that the charges of sexual intercourse without consent and incest were charged separately and independently, not alternatively.

A jury trial was conducted on October 6 and 7, 1994. After Heidi testified about the specific incident for which McQuiston was charged, a sidebar discussion took place off the record. The District Court then admonished the jury that the testimony they were about to receive concerned other acts by the defendant and that the evidence was not being admitted to prove the character of the defendant. The court told the jurors that McQuiston was not being tried for other crimes, wrongs, or acts and that they were to consider the testimony for limited purposes.

After the court admonished the jury, Heidi testified that the February 10, 1989, incident was not the first time that McQuiston had had sexual intercourse with her. She testified that McQuiston had begun sexual advances toward her when she was nine years old. Heidi stated that when she reached the age of fourteen she discovered through movies shown at health class that what her father was doing to her was not normal. Thereafter she began to resist McQuiston’s advances, but when she resisted her father, she was beaten.

Heidi testified that she was beaten so many times for resisting McQuiston that she could not remember them all and she could not estimate how many incidents of sexual intercourse had occurred. She also testified there were times when her father would beat her and then proceed to have sex with her. The incidents of intercourse occurred about two or three times a week, but gradually decreased to the point that in February, 1989, McQuiston was having sex with Heidi approximately once a week. The February 10, 1989, incident was the last time Heidi had sexual contact with her father.

On Heidi’s cross-examination, defense counsel asked her specific questions about the beatings and elicited testimony concerning an incident in Salem, Oregon, in the early 1980s when McQuiston had hit Heidi for calling him a pig. Heidi’s mother confirmed the Oregon beating. When Jackie was asked by the State to describe the facts surrounding the beating, she said that when Heidi brought McQuiston a cup of coffee he belched and she called him a pig. J ackie testified that McQuiston “went crazy” and beat Heidi. Defense counsel did not object to any of Jackie’s testimony concemingthe Oregon beating. Jackie also testified that there were at least twenty times when she returned home from work and Heidi would have a black eye or a fat lip.

McQuiston testified that he had hit Heidi only twice and denied any sexual contact between himself and Heidi. He stated that he believed he had treated Heidi “like a daughter” and that when he had hit her, it was “corrective.” McQuiston testified that he first discovered that Heidi was pregnant when he was released from jail in Kalispell. He claimed that Heidi, Jackie, and her brother had accused him of the crimes because they were jealous of his current financial status. McQuiston testified that he was remarried, had two children, had paid for his vehicles, made about $65 a day and had money in his pocket. He testified on direct examination that he was “way better oft” than he had been when he was married to Jackie.

On cross-examination, the County Attorney asked McQuiston about an existing court-ordered restitution requirement in an unrelated action. McQuiston testified that he had been ordered to pay $10,100 in increments of $100 per month and admitted he had not made any of the monthly payments for a year. When asked if he had enough money to pay the restitution payments, he stated he did but that he had spent the money on other items. Defense counsel did not object to any of the testimony regarding the restitution requirement and there was no evidence submitted as to the underlying crime for which restitution had been ordered.

The jury found McQuiston guilty of sexual intercourse without consent and incest. This appeal followed.

ISSUE 1

Did the District Court err in allowing testimony regarding other acts committed by McQuiston?

McQuiston argues that the State exceeded the scope of its pretrial notice regarding evidence of other acts which it intended to introduce at trial. McQuiston contends that when the State offered evidence concerning the Oregon beating incident and the restitution requirement, it exceeded the scope of its intended use of alleged other acts. McQuiston argues that these two past acts were unrelated to the crime for which he was charged and that the prejudicial impact of admitting them far outweighed any probative value they may have had. Furthermore, McQuiston relies on State v. Matt (1991), 249 Mont. 136, 814 P.2d 52, and State v. Just (1979), 184 Mont. 262, 602 P.2d 957, to argue that the District Court did not properly admonish the jury prior to admitting the evidence.

The State argues that the Oregon beating incident was properly admitted as going to the res gestae of the rape and incest charges. The State claims that even though the Oregon beating did not involve sexual contact, it was sufficiently similar to the other beatings that Heidi had received and therefore was properly admitted to show the long history of McQuiston’s intimidation and domination of Heidi. The State further notes that since the testimony was initially elicited by defense counsel, no error should be charged to the District Court or to the State for its admission.

The State argues that the purpose of introducing the evidence concerning the restitution requirement was to inquire into McQuiston’s financial status in an effort to rebut or impeach his prior testimony that he was financially well off. The State maintains that the District Court properly admonished the jury before Heidi testified concerning the many years of prior abuse and that the court was not required to admonish the jury again prior to receiving testimony concerning the Oregon beating and the Kalispell restitution order.

We have stated that district courts have broad discretion to determine whether or not evidence is relevant and admissible, and absent a showing of an abuse of discretion, the court’s determination will not be overturned. State v. Pace (1995), 272 Mont. 464, 467, 901 P.2d 557, 559 (citing State v. Keys (1993), 258 Mont. 311, 314, 852 P.2d 621, 623).

We first address the Oregon beating incident. In Cline v. Durden (1990), 246 Mont. 154, 803 P.2d 1077, this Court held that counsel, by inquiring into a Forest Service ranger’s report for the first time on cross-examination, opened the door for further inquiry on redirect and effectively overcame his own objection to matters contained therein. Cline, 803 P.2d at 1081. Likewise, in the present case McQuiston elicited the circumstances surrounding the Oregon beating on Heidi’s cross-examination and the matter was only revisited by the State on its redirect examination of Heidi and its direct examination of Jackie. Thus, the District Court did not err in admitting the evidence of the Oregon beating incident.

With respect to the evidence related to McQuiston’s restitution requirement, we determine that the testimony was elicited by the State on cross-examination in an effort to impeach McQuiston’s prior testimony that he was financially well off. McQuiston brought up his financial status on direct examination. We have held that character evidence may be rebutted through impeachment without Just procedures. See State v. Baker (1991), 249 Mont. 156, 159, 815 P.2d 587, 589. The evidence introduced by the State concerning McQuiston’s outstanding restitution payments was properly admitted to impeach his prior testimony.

Finally, we address the adequacy of the District Court’s admonition to the jury. The record indicates that prior to accepting the evidence of other acts and prior to jury deliberation, the District Court admonished the jury that the evidence was not being admitted to prove the character of the defendant in order to show he acted in conformity therewith. The court stated that:

The only purpose of admitting this evidence is to show, one, proof of lack of consent of the victim; two, proof of motive of the Defendant to commit the crimes charged herein; and three, proof of a common scheme or plan to commit the offenses charged herein; and four, proof of identity of the Defendant. You may not use that evidence for any other purpose.

This Court has previously held that Just does not require an admonition each time prior acts evidence is received. State v. Keefe (1988), 232 Mont. 258, 268, 759 P.2d 128, 134 (citing State v. Tecea (1986), 220 Mont. 168, 174, 714 P.2d 136, 140). We conclude that in this case, the District Court’s admonition was given prior to Heidi’s description of the many years of sexual abuse and beatings and that the court met the requirement of § 46-16-401(1), MCA, which required it to give cautionary instructions as required during the course of the trial.

In conclusion, we determine that the District Court did not abuse its discretion or otherwise err in admitting evidence of other acts, including the Oregon beating incident and McQuiston’s outstanding restitution payments.

ISSUE 2

Do McQuiston’s convictions for sexual intercourse without consent and incest violate double jeopardy protections?

McQuiston argues that the same conduct formed the “factual predicate” for both offenses charged against him since both were based on sexual intercourse between himself and Heidi. Thus, McQuiston claims the District Court should have dismissed the charge of sexual intercourse without consent.

We review conclusions of law to determine whether the district court’s interpretation of the law was correct. State v. Christensen (1994), 265 Mont. 374, 374-75, 877 P.2d 468, 469. We have recently stated that the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution protects against three distinct abuses: (1) a second prosecution for the same offense sifter acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. State v. Nelson (1996), 275 Mont. 86, 910 P.2d 247, 250. The Double Jeopardy Clause has been made applicable to the states through the Fourteenth Amendment. Nelson, 910 P.2d at 250 (citing Benton v. Maryland (1969), 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707; State v. Cole (1987), 226 Mont. 377, 744 P.2d 526).

McQuiston argues that his convictions of both sexual intercourse without consent and incest constitute multiple punishments for the same offense. This Court has employed the “same elements” test set forth in Blockburger v. United States (1932), 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306, to determine whether a defendant can be charged and convicted of violating two statutes for the same act or transaction. See State v. Crowder (1991), 248 Mont. 169, 810 P.2d 299; State v. Wolfe (1991), 250 Mont. 400, 821 P.2d 339; State v. Clawson (1989), 239 Mont. 413, 781 P.2d 267; State v. Long (1986), 223 Mont. 502, 726 P.2d 1364. The Blockburger test states:

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

Blockburger, 284 U.S. at 304, 52 S.Ct. at 182.

The Blockburger test is a test of statutory construction to determine whether the legislature intended the same conduct to be punishable under two criminal provisions. Crowder, 810 P.2d at 305. The Blockburger test focuses on the proof necessary to prove the statutory elements of each offense, rather than on the actual evidence to be presented at trial. Crowder, 810 P.2d at 305 (citing Illinois v. Vitale (1980), 447 U.S. 410, 416, 100 S. Ct. 2260, 2265, 65 L. Ed. 2d 228, 235). If each statute requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding there may be a substantial overlap in the proof offered to establish the crimes. Iannelli v. United States (1975), 420 U.S. 770, 785 n.17, 95 S.Ct. 1284, 1294, 43 L. Ed. 2d 616, 627.

A comparison of the two statutes for which McQuiston was convicted reveals separate and distinct elements for each crime. Sexual intercourse without consent requires proof that a person knowingly has sexual intercourse without consent with a person of the opposite sex. Section 45-5-503, MCA (1987). Incest requires proof that a person knowingly marries, cohabits with, has sexual intercourse or sexual contact with an ancestor, a descendant, a brother or sister, or any stepson or stepdaughter. Section 45-5-507, MCA (1987).

Sexual intercourse is prohibited under the incest statute only if the perpetrator and victim are related. Thus, the requirement in the incest statute that the parties be related is an element that is not included in the sexual intercourse without consent statute. Furthermore, to prove incest it is not necessary under the circumstances of this case that sexual intercourse without consent be proven. Sexual contact alone is sufficient.

Lack of consent is an element of sexual intercourse without consent but not, under the circumstances, an element of incest. The incest statute only allows consent to be raised as a defense if the victim is a stepson or stepdaughter eighteen years of age or older. In the present case, Heidi was McQuiston’s adopted daughter. Montana considers an adoptive father to be a parent, not a stepparent. See § 40-8-103(9), MCA (1987). Since McQuiston was Heidi’s adoptive father, consent was not an issue with the incest charge. The two charges contain distinct elements and each requires proof of facts which the other does not.

In State v. Sor-Lokken (1991), 247 Mont. 343, 805 P.2d 1367, this Court held that the defendant’s convictions of both sexual assault and incest did not violate double jeopardy protections. Sor-Lokken, 805 P.2d at 1373. We relied on the fact that the State needed to prove lack of consent for the sexual assault charge, while lack of consent was not an element which required proof for the incest charge. Sor-Lokken, 805 P.2d at 1373. In Sor-Lokken we also distinguished State v. Hall (1986), 224 Mont. 187, 728 P.2d 1339, rev’d on other grounds (1987), 481 U.S. 400, 107 S. Ct. 1825, 95 L. Ed. 2d 354, by noting that the victim was the defendant’s twelve-year-old stepdaughter and therefore lack of consent was not a required element for the sexual assault charge. Sor-Lokken, 805 P.2d at 1373. Thus, McQuiston’s reliance on Hall in the present case is misplaced since lack of consent was an element of proof required for his conviction of sexual intercourse without consent due to Heidi’s age at the time the incident occurred.

McQuiston goes on to assert that the Blockburger test does not work well in the context of this case. He instead relies on Montana’s double jeopardy statute, § 46-11-410, MCA, previously codified at § 46-11-502, MCA (1987). McQuiston claims that § 46-ll-410(2)(a), MCA, which provides that a defendant may not be convicted of more than one offense if “one offense is included in the other,” when read in conjunction with § 46-1-202(8), MCA, which defines “included offense” provides broader protection than that afforded by the Block-burger test.

McQuiston also relies on § 46-ll-410(2)(d), MCA, to argue that a defendant may not be convicted of more than one offense if “the offenses differ only in that one is defined to prohibit a specific instance of the conduct.” He claims that the general statute, § 45-5-503, MCA, prohibits sexual intercourse without consent, while the more specific statute, § 45-5-507, MCA, prohibits such conduct with one’s daughter.

We are not peráuaded by McQuiston’s interpretation of § 46-11-410, MCA. Incest is not an “included offense” of sexual intercourse without consent, nor, under the facts of this case, is it a “specific instance” of the conduct proscribed by § 45-5-503, MCA. Incest is a distinct and wholly separate offense from sexual intercourse without consent and each offense requires proof of distinct elements that the other does not. We therefore hold that the District Court correctly interpreted the law and did not violate double jeopardy protections when it convicted McQuiston of sexual intercourse without consent and incest.

ISSUE 3

Did the District Court err in sentencing McQuiston?

On March 13, 1995, the District Court sentenced McQuiston in open court to a term of fifteen years in the state prison, with five years suspended, for the conviction of sexual intercourse without consent, and to a term of fifteen years in the state prison, with five years suspended, for the incest conviction. On March 14, 1995, the court entered its written judgment and sentencing order indicating that it was imposing a sentence of thirty years in prison, with the last five years suspended, for each of the two offenses. The two sentences were ordered to be served consecutively and the court designated McQuiston as a persistent felony offender and a dangerous offender.

On March 31, 1995, the District Court entered an amendment to its judgment stating it had reviewed the transcript of the sentencing hearing and found that its order was inconsistent with the sentence imposed in open court. The court amended the sentence to twenty-two and one-half years in prison, with five years suspended, for each of the two offenses. The court ordered the sentences to run consecutively for a total sentence of forty-five years in prison, with ten years suspended. In its memorandum to the amended judgment, the court stated that:

The Court mistakenly treated the persistent felony designation as an enhancement tool. That designation apparently does not enhance the sentence, but simply affords the Court the right to impose a sentence in excess of the maximum allowed for the crimes for which a Defendant is convicted. State v. Fitzpatrick, 247 Mont. 206, 805 P.2d 584.
In this Court’s view, it[’]s all a game of semantics. But in any case this amended sentence conforms with the Court’s intent.

McQuiston argues that the District Court’s sentence constitutes an ex post facto violation of the law because it sentenced him on the incest conviction pursuant to the statute in effect at the time of the sentencing hearing, rather than the statute in effect at the time the offense occurred. Furthermore, McQuiston contends that the District Court erred in designating him a persistent felony offender and in sentencing him without first receiving a sexual offender evaluation.

Section 45-5-507(3), MCA (1987), provides that a person convicted of incest shall be imprisoned for any term not to exceed ten years. This statute was amended in 1991 and the maximum term of imprisonment was increased to twenty years. Section 45-5-507, MCA(1991). The 1987 version of the Code applies to this case since the offenses charged occurred in February 1989.

However, when a defendant has been designated a persistent felony offender, it is § 46-18-502, MCA, that determines the maximum length of the sentence, not the statute governing the underlying offense. We have stated that the persistent felony offender provision “replace [s] the maximum sentence prescribed for the offense. It is not a sentence in addition to the sentence for the offense.” State v. Fitzpatrick (1991), 247 Mont. 206, 208, 805 P.2d 584, 586. Section 46-18-502(1), MCA, provides that “a persistent felony offender shall be imprisoned in the state prison for a term of not less than 5 years or more than 100 years.”

In the present case, the District Court stated that McQuiston’s sentence reflected his status as a persistent felony offender. Thus, the court’s sentence of twenty-two and one-half years for the incest conviction was well within the 100-year maximum sentence allowed by the persistent felony offender statute. We therefore conclude the District Court did not err in sentencing McQuiston, nor did it apply the law ex post facto.

Section 46-13-108(1), MCA, requires the prosecution to give notice at or before the omnibus hearing of its intent to treat the accused as a persistent felony offender. Section 46-13-108(5), MCA, requires that notice must be filed and sealed until the time of trial or until a plea of guilty is given by the defendant. The purpose for providing such notice is to give the defendant an opportunity to file an objection to the criminal record relied upon in the notice and to hold a hearing should there be any such objection. See § 46-13-108(3), (4), MCA.

On May 3,1994, the State served defense counsel with notice that pursuant to §§ 46-18-501 and -502, MCA, it intended to seek increased punishment for McQuiston as a persistent felony offender. McQuiston had been convicted of two prior felonies, one in 1982 and one in 1991. The notice, however, was not filed with the District Court until October 11, 1994, after the trial was concluded. McQuiston argues that timely filing of the notice is a jurisdictional prerequisite and thus, failure to do so constitutes reversible error.

In State v. Madera (1983), 206 Mont. 140, 670 P.2d 552, we interpreted the former version of the statute, § 46-18-503, MCA, which required two notices. First, the State had to give the defense notice of its intent to seek treatment of the accused as a persistent felony offender prior to entry of a guilty plea or before trial. A second notice had to be filed with the court before sentencing. In Madera the defendant had received written notice before trial but claimed the second notice was deficient. The trial court had set the date for the sentencing hearing at the same time it received a motion to designate the defendant a persistent felony offender. In affirming the district court, we stated that the first notice to the defense was jurisdictional while the second notice to the court was simply procedural. Madera, 670 P.2d at 560. We held that the defendant was not prejudiced by the failure to file the second notice prior to setting the date for the sentencing hearing since he had sufficient notice of the charge which would be used against him. Madera, 670 P.2d at 560.

Section 46-20-701(1), MCA, provides that “[n]o cause shall be reversed by reason of any error committed by the trial court... unless the record shows that the error was prejudicial.” We have held that prejudice will not be presumed, but must appear from a fact established in the record or from the denial or invasion of a substantial right from which the law imputes prejudice. State v. Arlington (1994), 265 Mont. 127, 150, 875 P.2d 307, 321; State v. Newman (1990), 242 Mont. 315, 325, 790 P.2d 971, 977.

In the present case, McQuiston was sent notice of the State’s intent to seek persistent felony status over a month prior to the omnibus hearing and five months before trial. Furthermore, the notice was filed with the District Court five months prior to sentencing. We conclude that McQuiston was not prejudiced by the State’s failure to file notice of its intent to treat McQuiston as a persistent felony offender prior to trial. Thus, we hold that the District Court did not err in designating McQuiston a persistent felony offender.

Prior to sentencing, the District Court ordered a presentence investigation report and ordered that McQuiston undergo a sex offender evaluation. No sex offender evaluation had been prepared at the time of sentencing. McQuiston alleges that the District Court did not have the discretion to sentence him without considering a completed presentence investigation containing the evaluation and recommendation required by § 46-18-111, MCA.

At the sentencing hearing, McQuiston’s probation officer testified that sex offender clinics in Helena and Bozeman had been contacted and had stated that because McQuiston was in denial, an evaluation would be of no benefit. A Missoula doctor indicated he would be available for an evaluation but, according to the probation officer, McQuiston was unavailable due to his incarceration as a result of the revocation of a previous probationary sentence.

Section 46-18-111, MCA (1987), provides that:

No defendant convicted of an offense under 45-5-502 through 45-5-505, 45-5-507, or 45-5-625 against a victim who was less than 16 years old when the offense was committed may be sentenced or otherwise disposed of before a written report of investigation by a probation officer is presented to and considered by the court. The investigation must include an evaluation of the defendant and a recommendation as to treatment by a person qualified by professional experience.

Heidi was nineteen years old when the offenses were committed. Thus, the sex offender evaluation was not mandatory. Even though the District Court ordered that such an evaluation be conducted, the court stated at the sentencing hearing that:

I don’t think I’m going to require him to participate in it. He’s got enough facing him as it is. And if he’s still in denial, it won’t do any good anyway.

We have stated that this Court will not disturb a district court’s sentencing decision absent a showing that the court abused its discretion. State v. Blanchard (1995), 270 Mont. 11, 15, 889 P.2d 1180, 1182. The record is clear that McQuiston denied the crimes for which he was convicted, and therefore, sex offender treatment would be ineffective. Under those circumstances, we conclude that the District Court did not abuse its discretion in sentencing McQuiston without considering a sex offender evaluation.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, TRIEWEILER, HUNT, LEAPHART and NELSON concur.


source: Caselaw Access Project

author: JUSTICE GRAY

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DAVID MORA, Defendant and Appellant.
    No. 95-560.
    Submitted on Briefs June 13, 1996.
    Decided August 6, 1996.
    53 St.Rep. 736.
    277 Mont. 411.
    922 P.2d 516.

      For Appellant: Carrie L. Garber, Deputy Public Defender, Billings.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Jennifer Anders, Ass’t Attorney General, Helena; Dennis Paxinos, Yellowstone County Attorney, Margaret R. Gallagher, Deputy County Attorney Billings.
   JUSTICE GRAY

delivered the Opinion of the Court.

David Mora (Mora) appeals from an order of the Thirteenth Judicial District Court, Yellowstone County, dismissing his appeal from a Justice Court conviction. We reverse and remand.

The sole issue on appeal is whether the District Court erred in concluding that it did not have jurisdiction over Mora’s appeal.

On January 21, 1995, Mora was arrested on a charge of driving under the influence of alcohol (DUI). Mora appeared before the Yellowstone County Justice Court on February 6, 1995, and entered a plea of not guilty. The Justice Court scheduled a nonjury trial for May 22,1995. Mora’s counsel appeared for the trial on that date, but Mora did not. The Justice Court denied Mora’s counsel’s motion for a continuance, proceeded with the bench trial in absentia, and found Mora guilty of DUI. In an order dated May 30,1995, the Justice Court reiterated that it had found Mora guilty of DUI on May 22,1995, and ordered that Mora “complete the ACT program at the Mental Health Center and a pre-sentence chemical dependency evaluation and return to Court for sentencing on July 12,1995....” The ACT program is an alcohol information course which persons convicted of DUI are required to attend pursuant to § 61-8-714, MCA.

Mora filed a notice of appeal from the Justice Court to the District Comí; on the same day the Justice Court entered its order. The District Court subsequently dismissed Mora’s appeal by order dated Jume 21, 1995, on the basis that the Justice Court had not yet sentenced Mora and, therefore, the appeal was premature. The District Court remanded Mora’s case to the Justice Court for sentencing.

Mora moved for reconsideration, arguing that the Justice Court had sentenced him when it ordered that he complete the ACT program prior to formal sentencing and, therefore, his notice of appeal to the District Court was not premature. In its order on the motion, the District Court noted that § 61-8-714(4), MCA (1993), authorizes a court to order drug or alcohol treatment, as well as the required information course, for a defendant’s first DUI conviction; it reasoned therefrom that a court must have the ability to order alcohol information and assessment before formal sentencing for purposes of determining whether treatment is appropriate. On that basis, the District Court determined that, in ordering Mora to complete the ACT program and a presentence chemical dependency evaluation, the Justice Court did not sentence Mora, but only required that he provide the information it needed to properly sentence him in the future. In addition, the court relied on State v. West (1992), 252 Mont. 83, 826 P.2d 940, in determining that alcohol counseling should not be considered part of the sentence when analyzing jurisdictional questions because it is not ordered for a punitive purpose. After concluding that the Justice Court’s order did not constitute a sentence, the District Court reaffirmed its earlier order dismissing Mora’s appeal and remanded the case to Justice Court for sentencing. Mora appeals.

Did the District Court err in concluding that it did not have jurisdiction over Mora’s appeal?

A defendant in a criminal case may appeal from a justice court to a district court by filing a notice of appeal within 10 days after the justice court renders a judgment. Section 46-17-311(2), MCA. A judgment includes the sentence pronounced by the court; thus, the imposition of a sentence and final judgment is a prerequisite for an appeal from justice court to district court. State v. Todd (1993), 262 Mont. 108, 111, 863 P.2d 423, 425 (citations omitted). A notice of appeal which is filed before the justice court pronounces sentence is premature and does not vest subject matter jurisdiction in the district court. Todd, 863 P.2d at 425.

Mora contends that the District Court erred when it determined that the Justice Court did not pronounce sentence by ordering him to complete the ACT program and receive a presentence chemical dependency evaluation. He argues that no authority exists for a two-step sentencing procedure in which a defendant is ordered to complete an alcohol information course and evaluation and then to return to court for additional sentencing. Mora asserts that such a procedure impermissibly circumvents this Court’s holding in Rivera v. Eschler (1989), 235 Mont. 350, 767 P.2d 336.

The State of Montana (State) contends that, although the holding in Rivera prohibits a justice court from ordering treatment after a valid sentence has been imposed, the Justice Court in the present case avoided that result by ordering Mora to get an alcohol dependency evaluation before formally sentencing him to treatment. The State asserts that an order to complete a presentence alcohol dependency evaluation does not impose a sentence and, therefore, the Justice Court retained the ability to later sentence Mora to follow any treatment recommendations that may be made after he attends the ACT program.

Section 61-8-714, MCA, is the DUI sentencing statute and the 1993 version of the statute applies to Mora’s DUI conviction; subsections (1) through (3) provide the parameters for jail time and fines within which a court must sentence a person for first and subsequent DUI convictions. The portion of the statute at issue here provides that

[i]n addition to the punishment provided in this section, regardless of disposition, the defendant shall complete an alcohol information course at an alcohol treatment program approved by the department of corrections and human services, which may, in the sentencing court’s discretion and upon recommendation of a certified chemical dependency counselor, include alcohol or drug treatment, or both. On conviction of a second or subsequent offense under this section, in addition to the punishment provided in this section, regardless of disposition, the defendant shall complete an alcohol information course ... which must include alcohol or drug treatment, or both. ... The treatment provided to the defendant at a treatment program must be at a level appropriate to the defendant’s alcohol problem, as determined by the judge based upon the recommendation from the certified chemical dependency counselor.

Section 61-8-714(4), MCA (1993). By its clear language, the statute mandates that, as part of a DUI sentence, the court must require the defendant to complete an alcohol information course. On a first DUI conviction, the court may — in its discretion — also require that alcohol treatment be included in the alcohol information course, but only if a certified chemical dependency counselor recommends such treatment. Thus, while the requirement that the alcohol information course be completed is part of the sentence, a court necessarily must obtain a chemical dependency evaluation and recommendation prior to sentencing if it is inclined to consider requiring alcohol treatment as part of the sentence. Although a presentence evaluation is in the nature of a presentence investigation which, pursuant to § 46-18-111, MCA, may only be ordered by a district court, § 61-8-714(4), MCA (1993), clearly authorizes a court sentencing a defendant convicted of a first offense DUI to order and obtain a presentence chemical dependency evaluation.

Here, the Justice Court ordered Mora to 1) complete the ACT program; 2) complete a presentence chemical dependency evaluation; and 3) return for sentencing. Under § 61-8-714(4), MCA (1993), the requirement that Mora complete the alcohol information course clearly is a sentence.

If the Justice Court desired to consider including alcohol treatment in Mora’s sentence, the statute required it to obtain a chemical dependency evaluation and recommendation prior to imposing any part of the sentence, but not concurrently with imposing a sentence. Indeed, the Justice Court may have attempted to do so here by requiring Mora to obtain the evaluation and then return for sentencing. These two steps, without the earlier order sentencing Mora to complete the alcohol information course, would have enabled the Justice Court to obtain the desired evaluation and then determine whether to include alcohol treatment in Mora’s sentence. We conclude, however, that the initial sentence that Mora complete the course negated any further sentencing authority in the court.

Rivera does not resolve the precise issue presently before us, but it clearly supports our conclusion. In Rivera, the defendant was convicted of DUI and the justice court included in the defendant’s sentence a requirement that she attend a DUI school and complete “treatment as necessary.” Rivera, 767 P.2d at 337. When the defendant completed the counseling portion of the DUI school, her counselor recommended that she receive in-patient alcohol treatment. Rivera, 767 P.2d at 337. The justice court then modified the defendant’s sentence, ordering her to follow the recommendations of the counselor and adding certain specific requirements to the sentence. Rivera, 767 P.2d at 337. We held that § 61-8-714, MCA, the DUI sentencing statute, contemplated that all punishment and treatment be contained in the original order. Rivera, 767 P.2d at 338. Thus, when the justice court’s original order required the defendant to complete DUI school and treatment as necessary, it imposed a valid sentence and, once that sentence was imposed, the justice court had no authority to later modify it. Rivera, 767 P.2d at 338.

Nor does West, on which the District Court relied, support the State’s argument that the Justice Court did not sentence Mora when it ordered that he complete the ACT program. The defendant in West argued, in part, that the justice court did not have original jurisdiction over his case because the sentence for his DUI conviction included a requirement that he attend an alcohol treatment program, which program potentially could exceed the one-year maximum penalty for a misdemeanor offense. West, 826 P.2d at 946. This Court held that including alcohol treatment in a defendant’s DUI sentence did not increase the offense to a felony, even though there was no time limit on length of the treatment, because the purpose of requiring a defendant to attend treatment is to protect the public from DUI offenders rather than to punish the defendant. West, 826 P.2d at 946. We also held in West that the purpose of alcohol treatment is to try to rehabilitate the offender “in an effort to reduce the number of fatalities related to drinking and driving on Montana’s roads and highways.” West, 826 P.2d at 946. Nowhere in West did we state or indicate that alcohol treatment or counseling is not part of a DUI sentence; we simply held that treatment serves the purpose of rehabilitation rather than punishment within the sentence. The West holding merely reiterates Montana’s statutorily stated correctional policy, which is “to protect society by preventing crime through punishment and rehabilitation of the convicted.” See § 46-18-101(2), MCA. Thus, the District Court misapplied West in concluding that alcohol counseling and treatment should not be considered part of the sentence when determining jurisdictional issues.

The record before us reflects that the Justice Court sentenced Mora when it ordered him to complete the alcohol information course which, pursuant to § 61-8-714(4), MCA (1993), is a required part of DUI sentences. At that point, the Justice Court lost jurisdiction to later modify that sentence. Rivera, 767 P.2d at 338. Additionally, once the Justice Court imposed sentence, judgment had been rendered and the sentence and final judgment which are the prerequisites for an appeal from justice court to district court had been fulfilled. Todd, 863 P.2d at 425. We hold, therefore, that Mora’s notice of appeal from the Justice Court was not premature and that the District Court erred in concluding that it did not have jurisdiction over the appeal and in dismissing the appeal.

Reversed and remanded for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, HUNT, LEAPHART, NELSON and ERDMANN concur.


text:
    ROBERT SPOONHEIM, Plaintiff and Respondent, v. NORWEST BANK MONTANA, N.A., Defendant and Appellant.
    No. 96-211.
    Submitted on Briefs July 11, 1996.
    Decided August 19, 1996.
    53 St.Rep. 764.
    277 Mont. 417.
    922 P.2d 528.

      For Appellant: Philip P. McGimpsey, Philip P. McGimpsey, Inc., Billings.
    For Respondent: Norman L. Newhall, Linnell, Newhall & Martin, Great Falls.
   JUSTICE ERDMANN

delivered the Opinion of the Court.

Norwest appeals the order denying defendant’s motion for change of venue as issued by the Eighth Judicial District Court, Cascade County.

The issues on appeal are as follows:

1. Was the District Court correct in denying Norwest’s motion for change of venue?

2. Should plaintiff Robert Spoonheim be awarded damages for defending an appeal without merit?

FACTS

In November 1985, Robert Spoonheim petitioned for relief under Chapter 11 of the United States Bankruptcy Code. In 1987, Norwest Bank-Billings, N.A. (Norwest), a federally chartered national banking association, was designated by the Chapter 11 plan to maintain a “budget account” for Spoonheim and to pay certain expenses and costs related to his holdings. The Billings bank was the location of the “budget account,” and all of the personnel who dealt with the account and all of the bank records regarding the account are maintained there. Disputes between Norwest and Spoonheim over the appropriateness of certain costs and expenditures arose in the following years and culminated in Spoonheim filing a tort action against Norwest. Spoonheim, a resident of Phillips County, filed his claim in Cascade County.

On October 12, 1995, Norwest filed a motion for change of venue from Cascade County to Yellowstone County. The District Court denied the motion for change of venue which Norwest appeals. Spoonheim also filed a motion pursuant to Rule 32, M.R.App.P., for costs and expenses arising from the defense of an appeal without merit.

ISSUE 1

Was the District Court correct in denying Norwest’s motion for change of venue?

We review a district court’s conclusions of law to determine whether the court’s interpretation of law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686. See also Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603-04.

Norwest argues that the Legislature’s 1995 revision of § 25-2-122, MCA, mandates the venue of this matter in Yellowstone County. Section 25-2-122(2), MCA (1995), provides:

(2) If the defendant is a corporation incorporated in a state other than Montana, the proper place of trial for a tort action is:
(a) the comity in which the tort was committed;
(b) the county in which the plaintiff resides; or
(c) the county in which the corporation’s resident agent is located, as required by law, or in the first judicial district.

(Emphasis added.) Norwest asserts that it is within the legislative intent of this statute that a federally chartered banking association is a corporation incorporated in a state other than Montana and therefore venue is proper in Yellowstone County, as the location of Norwest Bank-Billings.

In construing a statute, “the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.” Section 1-2-101, MCA. The rules of statutory construction require the language to be construed according to its plain meaning. Clarke v. Massey (1995), 271 Mont. 412, 416, 897 P.2d 1085, 1088. If the intent of the Legislature can be determined from the plain meaning of the words used, the court may not go further and apply other means of construction. Wunderlich v. Lumbermens Mut. Cas. Co. (1995), 270 Mont. 404, 410, 892 P.2d 563, 567.

Section 25-2-122(2), MCA, specifies venue for a corporation incorporated in a state other than Montana. The language, “a corporation incorporated in a state other than Montana,” is not ambiguous. The language clearly does not reference nor include a federally chartered banking association. Had the -Legislature intended the 1995 amendment to include federally chartered banking associations they could have easily so stated. When the language of a statute is plain, unambiguous, direct, and certain, the statute speaks for itself and there is nothing left for the court to construe. State v. Mummey (1994), 264 Mont. 272, 277, 871 P.2d 868, 871. Norwest is a not a corporation incorporated in a state other than Montana, thus § 25-2-122(2), MCA, does not apply to determine venue for this matter.

Norwest is the sole defendant in this case. As a foreign association, Norwest has no Montana residence for the purposes of venue. See Platt v. Sears, Roebuck & Co. (1986), 222 Mont. 184, 186, 721 P.2d 336, 337. Section 25-2-118(2), MCA, provides that if none of the defendants reside in the state, the proper place of trial is any county the plaintiff designates in the complaint. Spoonheim designated Cascade County in his complaint as the place of trial. Venue is therefore proper in Cascade County.

Aside from Norwest’s argument that § 25-2-122(2), MCA, controls venue in this case, § 25-2-122(1), MCA, provides that if subsection (2) does not apply, the proper place for trial of a tort action is the county in which the tort was committed. In this case, Norwest has argued that if a tort occurred, it occurred in Yellowstone County. Therefore, under § 25-2-122(l)(b), MCA, Yellowstone County would also be a proper venue for this action.

Section 25-2-115, MCA, addresses the situation where venue may be proper in multiple counties. In those situations a defendant is not entitled to a change of venue if the plaintiff has filed in a proper county. In Haug v. Burlington Northern Railroad Co. (1989), 236 Mont. 368, 770 P.2d 517, this Court analyzed the competing venue provisions of § 25-2-122, MCA, and § 25-2-118, MCA. While this Court noted that the introductory language in § 25-2-118, MCA, contained the phrase “[u]nless otherwise specified in this part,” the Court specifically held that those were not limiting words so far as paragraph (2) of that section was concerned. The Corut held that “if none of the defendants reside in Montana, a plaintiff may choose any county in the state as the place of trial of a tort action, notwithstanding the alternate choice of venue under § 25-2-122, MCA.” Haug, 770 P.2d at 520. Norwest has not asked that we reconsider our holding in Haug.

Therefore, since §§ 25-2-118(2) and -122(1), MCA, designate different counties for venue, and since Spoonheim properly filed in Cascade County under § 25-2-118(2), MCA, the District Court correctly interpreted the law when it denied Norwest’s motion for change of venue. Haug, 236 Mont. 368, 770 P.2d 517.

ISSUE 2

Should Spoonheim be awarded damages for defending an appeal without merit?

Spoonheim has filed a motion for damages for an appeal without merit pursuant to Rule 32 of the Rules of Appellate Procedure. That rule allows this Court to assess damages if we are satisfied from the record and the presentation of the appeal that the appeal is without substantial or reasonable grounds.

Norwest’s appeal was based primarily on their contention that a federally chartered banking association is a “corporation incorporated in a state other than Montana” for purposes of § 25-2-122(2), MCA. Norwest provided no authority for this contention other than the unsupported and general assertion that the Legislature intended that result. Norwest is clearly not a corporation nor is it incorporated in a state other than Montana.

Even though § 25-2-122(1), MCA, provides that venue is proper in the county in which the tort allegedly occurred, which in this case is Yellowstone County, venue is also proper in Cascade County under § 25-2-118(2), MCA. Under these circumstances, § 25-2-115, MCA, clearly does not allow a change of venue if the action is filed in a proper county. We therefore conclude that the appeal was without substantial or reasonable grounds and damages are appropriate.

Affirmed and remanded to the District Court for a determination of attorney fees and costs attributable to the appeal to be awarded to Spoonheim.

JUSTICES NELSON, TRIEWEILER, GRAY and LEAPHART concur.


author: JUSTICE LEAPHART JUSTICE ERDMANN

text:
    JOHN WILSON, Plaintiff and Appellant, v. ROBERT VUKASIN, Defendant, Respondent and Cross-Appellant.
    No. 96-053.
    Submitted on Briefs June 20, 1996.
    Decided August 27, 1996.
    53 St.Rep. 819.
    277 Mont. 423.
    922 P.2d 531.

      For Appellant: Michael W. Cotter; Cotter & Cotter, Great Falls.
    For Respondent: Brian Lilletvedt, Keith A. Maristuen; Bosch, Kuhr, Dugdale, Martin & Kaze Havre.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

John Wilson (Wilson) appeals, and Robert Vukasin (Vukasin) cross-appeals from the Findings of Fact and Conclusions of Law of the Twelfth Judicial District Court, Hill County, concluding that the Montana Scaffolding Act § 50-77-101 to -107, MCA (1991), is not applicable to the facts of this case. We reverse the District Court’s conclusion that the Montana Scaffolding Act does not apply and, therefore, do not consider the cross-appeal.

Wilson raises the following issue on appeal:

Did the District Court err in concluding that the Montana Scaffolding Act did not apply to the facts of this case?

On September 2,1992, Wilson, an independent insurance adjustor, went to Vukasin’s residence to inspect the premises for hail damage. Vukasin’s ladder was used to gain access to the roof of the garage. Both men climbed onto the roof and Wilson performed his inspection. After the inspection was completed, Wilson began descending the ladder while Vukasin remained on the roof. While Wilson was climbing down the ladder, it “walked” out from under him and he fell to the concrete slab below injuring his right heel.

In its Findings of Fact and Conclusions of Law, the District Court determined that the ladder was placed at too small of an angle and that the ladder was generally inadequate for the task. The court noted that the ladder’s base was too narrow, that its legs were rounded where they met the concrete slab, and that it was “old, weathered and flexed too much, allowing it to slip more easily.”

The District Court concluded that the Montana Scaffolding Act (the Act) did not apply because the ladder was not a scaffold nor was the ladder used as a working place. Because the court concluded that the Act did not apply, the court invoked the doctrine of comparative negligence. The court reduced Wilson’s damage award by 50 percent because it found that he had failed to use ordinary care in selecting and using the ladder.

On appeal, Wilson argues that the District Court erred in failing to apply the Act. According to Wilson, had the District Court properly applied the Act, the comparative negligence statute, § 27-1-702, MCA, would not have been applicable because once it is shown that a violation of the Act was the proximate cause of the injury, liability becomes fixed. Steiner v. Department of Highways (1994), 269 Mont. 270, 278, 887 P.2d 1228, 1233.

The District Court recognized that the question of whether the ladder was a scaffold was a “close call” and ultimately concluded that it was not a scaffold. We review the District Court’s conclusion of law — that the Act did not apply — to determine whether the court’s interpretation of the law was correct. Stratemeyer v. Lincoln County (1996), [276 Mont. 67], 915 P.2d 175, 177 (citing Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686); Loney v. Milodragovich, Dale & Dye, P.C. (1995), 273 Mont. 506, 510, 905 P.2d 158, 160.

Wilson’s fall occurred in 1992. We have previously determined that the 1995 amendments to the Act cannot be applied retroactively. Porter v. Galarneau (1996), [275 Mont. 174], 911 P.2d 1143, 1150. Thus, we must apply the version of the Act applicable at the time of the accident. As of 1992, § 50-77-101, MCA (1991), provided that:

All scaffolds erected in this state for use in the erection, repair, alteration, or removal of buildings shall be well and safely supported, of sufficient width, and properly secured so as to ensure the safety of persons working on them or passing under them or by them and to prevent them from falling or to prevent any material that may be used, placed, or deposited on them from falling.

We have defined “scaffolding” to include “any device utilized by workmen to allow them to work where a fall might result in serious injury.” Porter, 911 P.2d at 1147 (citing Steiner, 887 P.2d at 1233). This Court has previously held that, under the pre-1995 version of the Act, a ladder is considered a scaffold. Porter, 911 P.2d at 1147 (citing Mydlarz v. Palmer/Duncan Constr. Co. (1984), 209 Mont. 325, 338, 682 P.2d 695,702). Thus, the ladder used by Wilson was a scaffold for purposes of the pre-1995 Act.

Further, this Court has determined that where the Act applies, “the mandatory nature of the statute forecloses the common-law defenses of assumption of the risk, contributory negligence, and negligence of a fellow servant.” Steiner, 887 P.2d at 1233 (citation omitted).

The Act provides that all scaffolding “shall be well and safely supported, of sufficient width, and properly secured.” Failure to comply with the Act constitutes negligence per se. Steiner, 887 P.2d at 1233. The District Court found that the ladder was too narrow, too flexible, not placed at the proper angle, and not properly secured because of the rounded legs. Thus, the District Court concluded that the inadequacy of the ladder was a proximate cause of Wilson’s injuries; however, the court also determined that the Act did not apply. As we held in Steiner, the defense of contributory negligence is not available under the Act. Thus, the District Court erred in applying contributory negligence and in reducing Wilson’s damage award pursuant to § 27-1-702, MCA.

In addition, the District Court determined that the ladder was not “used as a working place” and, therefore, that the Act did not apply. Section 50-77-101, MCA (1991), provides that the Act applies where a scaffolding is used in “the erection, repair, alteration, or removal of buildings.” Apparently, the court reasoned that, as an insurance adjustor, Wilson was not erecting, repairing, altering or removing a building at the time of his injuries. Wilson argues that the District Court interpreted the Act too narrowly. We agree. At the time of the accident, Wilson was inspecting Vukasin’s roof for hail damage. This inspection was integral to the repair of the roof as the cost of the damage had to be determined for Vukasin’s insurance claim. Wilson was on the roof to make this determination and facilitate the repair.

In Mydlarz, this Court cited Quinn v. LBC, Inc. (Ill. Ct. App. 1981), 418 N.E.2d 1011, in discussing the purposes of the Act and in deciding that the term “scaffolding” includes a ladder. We find Quinn to be instructive in determining whether Wilson was using the ladder as a “working place.” Quinn was an inspector for the City of Chicago Building Department and was injured while inspecting a building following a fire. The Illinois Court of Appeals concluded that Quinn was covered by Illinois’ scaffolding act, stating that:

Plaintiff, in his role as an inspector, played a vital part in the construction process. He entered the site for the purpose of evaluating the fire’s effect on the building’s structural integrity. Performance of this task necessitated his presence within and upon the building.... A liberal interpretation of the Act... requires that plaintiff be included within the class of persons the Act is intended to protect.

Quinn, 418 N.E.2d at 1013. Similarly, Wilson utilized the ladder to access the roof to inspect the damage, and ultimately, to facilitate the repair of Vukasin’s roof. As the Illinois Court of Appeals recognized in Quinn, an inspector, such as Wilson, is within the ambit of the Act’s coverage.

We determine that District Court erred in concluding that the Act did not apply. Accordingly, we hold that the District Court erred by invoking the doctrine of comparative negligence and in reducing Wilson’s award by 50 percent. Because the Act applies, it is unnecessary for this Court to consider Vukasin’s cross-appeal.

Reversed with direction to enter judgment in Wilson’s favor for the full amount of his damages.

JUSTICE NELSON, HUNT and TRIEWEILER concur.

JUSTICE ERDMANN

dissenting.

The majority, in construing the 1991 version of the Scaffold Act as set forth in § 50-77-101, MCA, has determined that the ladder used by Wilson was a scaffold for purposes of this Act. While I agree with that determination, the majority’s conclusion that Wilson, as an independent contractor, was within the ambit of the Act’s coverage extends the Act beyond any of our previous interpretations.

Wilson is an independent insurance adjuster who contracts with insurance companies to provide claims adjusting services. In this case, Vukasin’s insurer, Austin Mutual, contracted with Wilson through Erickson-Baldwin, an independent insurance agency in Havre, to readjust a hail damage claim to Vukasin’s property. While inspecting Vukasin’s property, Wilson fell from a ladder that had been provided by Vukasin. There was no employment or contractual relationship between Wilson and Vukasin, and Vukasin had no authority to control, direct, or supervise Wilson’s performance.

We discussed the language of the Scaffolding Act in State ex rel. Great Falls National Bank v. District Court (1969), 154 Mont. 336, 463 P.2d 326. In that case, it was necessary to determine what persons owed the duty that was imposed by the Scaffolding Act because the language employed to describe the duty was expressed in passive voice and failed to specify what persons owed the duty. We held that it was clear the Legislature did not intend to grant multiple remedies or damages to injured workmen by allowing one recovery against the landowner, another against the general contractor, a third against the subcontractor, and so forth. We further held that the Legislature intended only to make injured workmen whole by granting them relief against the person, firm, or corporation having direct and immediate control of the work involving the use of scaffolding.

We specifically overruled our dictum in Pollard v. Todd (1966), 148 Mont. 171, 418 P.2d 869, and Joki v. McBride (1967), 150 Mont. 378, 436 P.2d 78, which suggested that a landowner not in control of the work being completed owed an absolute, nondelegable statutory duty to a scaffold worker or others. Great Falls Nat’l Bank, 154 Mont. at 344, 463 P.2d 326. The individual who was injured in Great Falls Nat’l Bank was the employee of an independent contractor who had been hired to complete the project under the contractor’s own guidance and supervision. We held that the bank, being simply the owner of the property and not the employer of the injured individual, had no direct control over the work performed and therefore was not liable under the Scaffolding Act.

The direct and immediate control analysis has since been consistently utilized by this Court to determine whether the Scaffolding Act applies. In Mydlarz v. Palmer/Duncan Construction Co. (1984), 209 Mont. 325, 339, 682 P.2d 695, 703, we noted that both defendants were acting as general contractors in control of the work area and, without reaching the question of which party was immediately responsible for failing to provide adequate scaffolding, held that the failure invoked the Scaffolding Act’s applicability. This determination of direct and immediate control was not premised on who was or was not present at the time of the incident, but rather on who had direct control and supervision over the actual work performed.

Recently we have applied this analysis in Porter v. Galarneau (1996), [275 Mont. 174], 911 P.2d 1143. In Porter, we distinguished our holding in Great Falls Nat’l Bank that a landowner does not have fixed liability based solely on his ownership of the property by noting that in Porter the parties had stipulated that for purposes of appeal the landowner was also the employer of the injured individual. The injuries of the worker occurred while he was completing a task assigned to him by his employer who was absent from the property. We held that the employer was the only individual who could provide immediate direction and supervision of his worker for purposes of the Scaffolding Act.

The majority relies on an Illinois appellate decision for its assertion that Wilson, as an independent contractor, falls within the scope of the Scaffolding Act. Quinn v. L.B.C., Inc. (Ill. Ct. App. 1981), 418 N.E.2d 1011. In Quinn the Illinois Appellate Court found that the Illinois Structural Work Act was intended to protect a city inspector who was inspecting a building damaged by fire. Although finding that the inspector was involved in the “construction process,” the Court ultimately held the Act did not apply since the inspector was injured when he fell while walking on the ground floor of the building which was not being used as a scaffold. Relying on Quinn, the majority concludes that because Wilson was using the ladder as a “working place” to inspect damage on the roof which would ultimately facilitate the repair of the roof, he was therefore within the scope of the Act. The majority however failed to complete the required analysis and determine whether Vukasin was an individual who owed a duty to Wilson under the Act.

Wilson, as an independent contractor, was contracted by Vukasin’s insurance agency to readjust the hail damage to Vukasin’s property. Vukasin did not contact Wilson personally nor was his presence necessary for this inspection. The “person, firm, or corporation having direct and immediate control of the work involving the use of scaffolding” was either Wilson himself as an independent contractor, or arguably the insurance company. What is clear is that Vukasin had no direct and immediate control of Wilson.

I would therefore hold that the Montana Scaffolding Act does not apply and that the judgment of the District Court finding the plaintiff and the defendant equally at fault under comparative negligence principles should be affirmed.

CHIEF JUSTICE TURNAGE and JUSTICE GRAY join in the foregoing dissenting opinion.


text:
    WARREN DEAN BROWN, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Respondent.
    No. 95-160.
    Submitted on Briefs March 7, 1996.
    Decided July 26, 1996.
    53 St.Rep. 692.
    277 Mont. 430.
    922 P.2d 1146.

      For Appellant: Kevin E. Vainio, Attorney at Law, Butte.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Elizabeth Griffing, Ass’t Attorney General, Helena; Carolyn A. Clemens, Deputy County Attorney, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

Warren Dean Brown (Brown) appeals from the order and judgment entered by the First Judicial District Court, Lewis and Clark County, denying his petition for postconviction relief. We affirm.

We address the following dispositive issues:

1. Did the District Court err in concluding that Brown was not denied effective assistance of counsel at trial?

2. Did the District Court err in concluding that Brown was not denied effective assistance of counsel on appeal?

3. Did the District Court err in concluding that the claimed violations of Brown’s privilege against self-incrimination and his right to be free from unreasonable searches were not properly before it?

In 1988, the State of Montana (State) charged that Brown had committed the offense of felony assault by purposely or knowingly causing bodily injury to Kathie Brown (Kathie) by striking her in the head with a handgun. The charge arose out of a domestic dispute between Brown and his wife Kathie, who had been separated for approximately one month at the time. According to Kathie’s testimony, she and Brown got into an argument and Brown slapped her in the face and hit her in the nose with his fist, causing her nose to bleed. Brown held his pocket knife to her neck while forcing her to clean the blood from the floor and then elongated a wire coat hanger, wrapped it around her wrist and led her around by it. Subsequently, Brown removed a .22 caliber pistol from a cardboard file in the bedroom, loaded it and pointed it at her; thereafter, he struck her several times with the gun, at least once on the forehead and then on the top of her head. Kathie escaped with one of the couple’s children and Brown took the other child back into his apartment. Officers arrested Brown in his bedroom some hours later and, when asked where the gun was, he directed them to the .22 pistol located in the file cabinet.

Brown also testified at trial. He acknowledged having an argument with Kathie, but denied slapping her, putting a knife to her throat, leading her around the apartment with a coat hanger and pistol-whipping her. He admitted that she got a bloody nose, but offered a much more innocent explanation than Kathie’s about how it occurred. He testified that he willingly gave the police the pistol, which he was in the process of refurbishing and which lacked part of the firing mechanism.

Brown was convicted and sentenced to ten years in prison, with five years suspended, for the felony assault and another ten years in prison, with five years suspended, for use of a weapon in the assault. We affirmed the conviction on appeal, concluding that substantial evidence established the essential elements of felony assault. See State v. Brown (1989), 239 Mont. 453, 457, 781 P.2d 281, 284.

Brown petitioned the District Court for postconviction relief in 1993. Among other things, he contended that his conviction was based on evidence which violated his Fifth Amendment privilege against self-incrimination and on other evidence obtained via searches which violated his Fourth Amendment rights, and that he was denied effective assistance of counsel both at trial and on appeal. The District Court denied the petition and Brown appealed.

1. Did the District Court err in concluding that Brown was not denied effective assistance of counsel at trial?

Brown’s petition for postconviction relief and supporting affidavit alleged that deficiencies in the performance of his trial counsel, Edmund F. Sheehy, Jr. (Sheehy), resulted in Brown being denied effective assistance of counsel at trial. In responding to Brown’s petition, the State submitted Sheehy’s sworn affidavit addressing Brown’s allegations.

The District Court held a hearing on Brown’s petition. Brown testified but did not call Sheehy as a witness in order to examine him regarding his affidavit. The court subsequently determined that Sheehys performance was not deficient and concluded that Brown was not denied effective assistance of counsel at trial. We review a district court’s denial of a petition for postconviction relief to determine whether substantial evidence supports the district court’s findings and whether its conclusions of law are correct. State v. Baker (1995), 272 Mont. 273, 280, 901 P.2d 54, 58 (citing Walker v. State (1993), 261 Mont. 1, 6, 862 P.2d 1, 4).

A petitioner seeking to reverse a district court’s denial of a petition for postconviction relief based on a claim of ineffective assistance of counsel bears a heavy burden. Baker, 901 P.2d at 59. We apply the two-part test originally set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, in evaluating a petitioner’s claim of ineffective assistance of counsel. Baker, 901 P.2d at 59; Walker, 862 P.2d at 4. Under the first Strickland prong, the petitioner must establish that counsel’s performance was deficient pursuant to the “reasonably effective assistance” test; if counsel acted within the range of competence demanded of attorneys in criminal cases, the performance rendered was not deficient. Baker, 901 P.2d at 59. Moreover, judicial scrutiny of counsel’s actions must be highly deferential and counsel’s performance is strongly presumed to fall within the wide range of reasonable professional assistance. Kills On Top v. State (1995), 273 Mont. 32, 49, 901 P.2d 1368, 1379 (citing Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2065).

To satisfy the second Strickland prong, the petitioner must establish that the deficient performance prejudiced him and deprived him of a fair trial. Baker, 901 P.2d at 59. Prejudice is evaluated by whether a reasonable probability exists that, but for counsel's deficient performance, the outcome of the trial would have been different. Baker, 901 P.2d at 59. A petitioner must establish both deficient performance and prejudice to prevail on a postconviction claim of ineffective assistance of counsel, and this Court will not second-guess trial tactics and strategy. Baker, 901 P.2d at 59.

Brown argues that Sheehys representation of him was deficient in the following regards:

a. Sheehy did not move to suppress, or otherwise attempt to exclude from evidence, Brown’s statements to the arresting officers about the location of the handgun and the handgun itself, and did not object to the late endorsement of the State’s expert witnesses from the Montana State Crime Laboratory (Crime Lab) who examined the handgun;

b. Sheehy did not move to suppress, or otherwise attempt to exclude from evidence, a coat hanger and pocket knife; and

c. Sheehy did not communicate with him regarding these decisions.

Brown asserts that these deficiencies in Sheehy’s performance prejudiced him and deprived him of a fair trial. We address Brown’s contentions in turn.

a. The statements, handgun and expert testimony

It is undisputed that, at the time of Brown’s arrest, he was questioned regarding the whereabouts of the handgun prior to being informed of his rights under Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Brown told the officers that the weapon was in his file cabinet and the officers located it there.

Sheehy did not move to suppress either Brown’s statements regarding the location of the handgun or the handgun itself. Both were admitted into evidence at trial without objection by Sheehy.

The State submitted the handgun to the Crime Lab for examination by a firearms expert, William Newhouse (Newhouse), and a serologist, Julie Long (Long). The State moved for the endorsement of Newhouse and Long as witnesses on July 7,1988, four days before trial, noting Sheehy’s lack of objection in its motion.

The handgun was manufactured in the late 1800s and was missing its trigger. Kathie and Brown had found it in pieces in the trash and Brown had been refurbishing it. Kathie testified that Brown and a friend had fired the handgun once while “playing around” with it and that, in addition to hitting her with it, he also threatened to shoot her if she did not do as she was told by Brown. Brown testified that he had never fired the handgun, that it would be very dangerous to fire it and that he had not gone near the handgun on the evening in question. He also testified that he had not cleaned the gun properly after finding it and that that could explain the spot of blood in the center of the underside of the barrel.

Newhouse testified that the handgun was capable of firing a bullet, notwithstanding the absence of both a trigger and a cocking mechanism. He further testified that he had fired the handgun two times.

Long testified that the handgun had a small amount of blood on it and that the blood was human in origin. She further testified that there was not enough blood on the handgun for her to determine whether the blood was, in fact, Kathie’s. Sheehy did not object to the admission of either expert’s testimony.

Brown contends that his statements, the handgun and the expert testimony were used effectively by the prosecution in convicting him. On that basis, he argues that Sheehy’s failure to file motions or make objections to exclude them was unwise, did not gain him any advantage and constitutes ineffective assistance of counsel.

The District Court found that Sheehy’s performance before and during trial was not deficient but, rather, that Sheehy made certain strategic choices based on the evidence as he saw it. Sheehy’s affidavit sets forth his tactical reasons for not attempting to exclude Brown’s statements or the handgun itself at some length. His overall strategy involved attempting to discredit Kathie’s testimony concerning the events in question by arguing that, had Brown actually hit Kathie on the head with the handgun and pointed it at her, as Kathie described, he would have hid it rather than placing it in the file cabinet and would not have told the officers where to find it. Sheehy also attempted to use the handgun to discredit Kathie by arguing that, if Brown had struck her on the head with the handgun as she described, there would have been much more blood on the handgun than the small amount that was not even identifiable as Kathie’s. In short, Sheehy attempted to affirmatively use the handgun, and Brown’s cooperation in directing the officers to it, to buttress Brown’s position that the assault never occurred and to undermine Kathie’s version of the events. In this regard, Brown testified at the hearing on his petition that he understood that the trial would turn, in large part, on Kathie’s credibility versus his own.

Sheehy’s affidavit also discusses his reasons for not objecting to the late endorsement of Newhouse and Long as expert witnesses for the State. According to Sheehy, Brown told him that the handgun would not discharge safely and, as a result, Sheehy felt it needed to be test-fired. Furthermore, it was Sheehy’s opinion that the spot on the handgun should be tested to determine whether it was merely rust, rather than blood, in hopes of negating Kathie’s version of the events altogether. As it turned out, the spot was blood, but not identifiable as Kathie’s, and Sheehy used that fact in attempting to undermine her testimony.

Again, as with Brown’s statements and the handgun itself, Sheehy’s lack of objection to both the late endorsement of Newhouse and Long as witnesses and their testimony at trial was part of his overall strategy of attempting to discredit Kathie and her testimony. We do not second-guess trial tactics and strategy. Baker, 901 P.2d at 59.

Finally, in this regard, Brown contends that Sheehy’s tactical decisions were unwise and did not gain him any advantage. Brown cites to no authority for his position that the extent to which trial counsel’s tactics and strategy ultimately are successful properly impacts on a court’s evaluation of whether counsel’s performance was deficient, and we are aware of none.

We conclude that substantial evidence supports the District Court’s finding that Sheehy’s decisions regarding Brown’s statements, the handgun, and the State’s expert witnesses were based on his trial strategy and, therefore, do not constitute deficient performance, b. The coat hanger and pocket knife

At trial, the State introduced the coat hanger Kathie alleged Brown had wrapped around her wrist and used to lead her aromad the apartment, as well as the pocket knife Brown allegedly had held to her throat, during the assault. Kathie had provided these items to the State.

Kathie and Brown were separated when the assault occurred and she did not have a key to Brown’s apartment. Kathie testified that she entered Brown’s apartment twice after his arrest. She entered through a window on the first occasion and recovered Brown’s keys to the apartment and the hanger. She testified that, at the request of the Helena Police Department, she entered the apartment again to retrieve Brown’s knife. Sheehy did not move to suppress, or otherwise object to the admission of, these items.

Brown contends it was undisputed at trial that Kathie obtained both the hanger and the knife by entering Brown’s apartment without Brown’s permission and that she retrieved the knife at the request of the Helena Police Department. He argues, therefore, that Sheehy’s failure to move to suppress evidence resulting from searches he contends were unlawful under the Fourth Amendment constitutes ineffective assistance of counsel.

According to Sheehy, he personally investigated Kathie’s claim that she had conducted the search for the knife at the request of the Helena Police Department and concluded that no such request had been made\ Had he concluded otherwise, he would have considered a motion to suppress the knife. He intended to argue that Kathie’s story regarding the law enforcement request to enter Brown’s apartment to retrieve evidence was inherently unbelievable and thereby use it to attack her credibility as a witness. Indeed, Sheehy’s strategy was to use Kathie’s testimony in this regard to argue that all of her testimony should be rejected due to her lack of truthfulness on this material matter. Once again, Brown asks us to second-guess Sheehy’s trial strategy. We refuse to do-so. See Baker, 901 P.2d at 59.

We conclude that substantial evidence supports the District Court’s finding that Sheehy’s decisions regarding the hanger and the knife were based on his trial strategy and, therefore, do not constitute deficient performance, c. Lack of communication and consultation

Brown also alleges on appeal that Sheehy did not consult or communicate with him regarding the tactical and strategic decisions not to move to suppress, or otherwise object to the admission of, the evidence resulting from the alleged violations of his Fifth and Fourth Amendment rights. He asserts that Sheehy’s lack of communication in these regards is undisputed and that the lack of communication constitutes ineffective assistance of counsel.

We observe at the outset that these alleged deficiencies in communication were not set forth in either Brown’s original petition for postconviction relief, his amended petition or his supporting affidavit. Nor were they addressed in Brown’s supporting memorandum. They arose only via passing reference during Brown’s testimony at the hearing on his petition. Thus, while Brown’s allegations in this regard are undisputed, that is so because they were not raised in his petition or supporting documents. Presumably for that reason, the District Court did not address them in denying the petition and the State does not address them on appeal.

Section 46-21-105(1), MCA, provides that all grounds for relief under § 46-21-101, MCA, must be raised in the petitioner’s original or amended petition and that grounds for relief not raised generally are waived. Brown did not raise these specific allegations of deficient performance by Sheehy in his original or amended petition and, as a result, they are waived and procedurally barred. Section 46-21-105, MCA; see Baker, 901 P.2d at 58. In addition, because this is a direct appeal from the District Court’s denial of Brown’s petition for post-conviction relief, we decline to address these allegations of ineffective assistance of counsel not first properly raised in the trial court. Baker, 901 P.2d at 58.

Because Brown did not establish the deficient performance prong of the Strickland test, we need not address the prejudice prong. We hold, therefore, that the District Court correctly concluded that Brown was not denied effective assistance of counsel at trial.

2. Did the District Court err in concluding that Brown was not denied effective assistance of counsel on appeal?

Randi M. Hood (Hood), chief public defender for Lewis and Clark County, represented Brown on appeal. She raised the issue of whether there was sufficient evidence to support Brown’s felony assault conviction. Brown, 781 P.2d at 282.

Brown’s petition for postconviction relief alleged denial of effective assistance of counsel on appeal. Specifically, he alleged that Hood’s performance was deficient in that she failed to raise issues that he requested, including the substantive issues of Fifth and Fourth Amendment violations resulting in admission of the gun, hanger and knife and a claim of ineffective assistance of trial counsel. Brown also contended that Hood was deficient in failing to provide him with an opportunity for input regarding his appellate brief before it was filed. In responding to Brown’s petition, the State submitted Hood’s sworn affidavit addressing Brown’s allegations regarding her representation on appeal. Brown did not call Hood as a witness at the hearing on his petition.

The District Court found that Hood had determined that the issues Brown wished to raise were either not supported by the record or not relevant. The court also found that, after discussion of the chances of success regarding the issues Brown wanted to raise, Brown agreed with Hood that only the issue regarding sufficiency of the evidence to support the felony charge should be pursued. Finally, the court found that Hood mailed Brown a copy of the appellate brief, together with an explanatory letter, before she filed the brief. Based on these findings, the District Court found that Hood’s performance was not deficient and that Brown was not denied effective assistance of counsel on appeal. As discussed above, we review the court’s findings to determine whether they are supported by substantial evidence; we review the court’s conclusions to determine whether its interpretation of the law is correct. Baker, 901 P.2d at 58.

With regard to the substantive issues of whether Brown’s Fifth and Fourth Amendment rights were violated and whether, as a result, Brown’s statements, the handgun and the pocket knife were excludable, Hood determined that the issues were not preserved by motion or objection at trial. Therefore, as Hood explained to Brown, they could not be raised for the first time on appeal absent the ability to meet the requirements of § 46-20-701, MCA, which could not be met in this case. Hood’s interpretation of the law in this regard was correct. See State v. Weeks (1995), 270 Mont. 63, 86, 891 P.2d 477, 491 (citation omitted). We have indicated repeatedly that, where counsel properly interprets the law, counsel's performance is not deficient as a matter of law. See, e.g., Baker, 901 P.2d at 60-61; State v. Hildreth (1994), 267 Mont. 423, 432, 884 P.2d 771, 777; State v. Brady (1991), 249 Mont. 290, 297, 816 P.2d 413, 417.

Hood also considered Brown’s assertion that he had been denied effective assistance of counsel at trial with regard to the allegedly excludable matters, examined the trial record and informed herself about the current law on ineffective assistance of counsel. She concluded that Sheehy decided not to move to suppress, or object to admission of, the evidence in furtherance of his overall trial strategy and that such tactical decisions would not successfully support an ineffective assistance of counsel claim. Given our affirmance of the District Court’s conclusion to that effect above, it is clear that Hood’s analysis of this issue was correct. Therefore, Hood’s performance in this regard was not deficient. See Baker, 901 P.2d at 60-61; Hildreth, 884 P.2d at 777; Brady, 816 P.2d at 417.

Finally, with regard to Brown’s contention that Hood did not provide him with an opportunity for input into his appellate brief, Hood appended to her affidavit a letter she sent to Brown with a draft of the appellate brief. Hood advised Brown in the letter regarding when she intended to file the brief and she stated in her affidavit that he did not contact her about the brief. Brown’s argument in this regard essentially requests this Court to reweigh the evidence, determine, that he is more credible than Hood, and make findings different from those made by the District Court. However, in matters such as these where the District Court is acting as the trier of fact, it is that court’s function to resolve conflicts in the evidence and we will not substitute our judgment for that of the District Court. See In re Marriage of Starks (1993), 259 Mont. 138, 143, 855 P.2d 527, 530 (citations omitted).

We conclude that substantial evidence supports the District Court’s finding that Hood’s performance was not deficient. Because Brown did not establish the deficient performance prong of the Strickland test, we need not address the prejudice prong. We hold, therefore, that the District Court correctly concluded that Brown was not denied effective assistance of counsel on appeal.

3. Did the District Court err in concluding that the claimed violations of Brown’s privilege against self-incrimination and his right to be free from unreasonable searches were not properly before it?

In addition to his claims of ineffective assistance of counsel, Brown’s petition for postconviction relief asserted violations of his Fifth Amendment privilege against self-incrimination, which related to his non-Mirandized statements about the location of the handgun and the handgun itself, and his Fourth Amendment right to be free from unreasonable searches, which related to the hanger and knife admitted into evidence as a result of Kathie’s allegedly illegal searches. While these asserted constitutional violations were neither preserved at trial nor raised on direct appeal, Brown contended they should be determined substantively in his postconviction proceeding. The District Court concluded that, except insofar as these matters related to Brown’s ineffective assistance of counsel claims, they were procedurally barred by § 46-21-105(2), MCA, and not properly before it. We will not overturn a district court’s conclusion of law if the court’s interpretation of the law is correct. Baker, 901 P.2d at 58 (citation omitted).

A petition for postconviction relief is a statutory proceeding in which certain alleged errors may be raised by a “person adjudged guilty of an offense in a court of record who has no adequate remedy of appeal....” Section 46-21-101(1), MCA. However,

[w]hen a petitioner has been afforded a direct appeal of the petitioner’s conviction, grounds for relief that could reasonably have been raised on direct appeal may not be raised in the original or amended petition.

Section 46-21-105(2), MCA. In this case, Brown was afforded a direct appeal and, as discussed above, these alleged constitutional violations were not raised therein.

While Brown concedes that the referenced issues were not raised in his direct appeal, he argues that the procedural bar should not apply because he attempted to raise them but his appellate counsel would not do so. As discussed above, Brown’s counsel on appeal properly analyzed whether to include the alleged Fifth and Fourth Amendment violations as issues on appeal and determined that, because they had not been preserved at trial, they could not be raised on appeal. Moreover, the District Court found, having weighed the conflicting evidence and determined the credibility of Brown and Hood, that Brown agreed with Hood regarding what issue should be raised on appeal. We will not substitute our judgment for that of the trier of fact on such matters. Marriage of Starks, 855 P.2d at 530.

Brown also suggests that Sheehy’s failure to preserve these issues for appeal via motion or objection should prevent application of the procedural bar to foreclose substantive review. We disagree.

We recently clarified the applicability of the statutory procedural bar to issues not preserved for appeal at trial. In Baker, the petitioner had appealed from his convictions and sentences for three offenses and this Court had affirmed. Baker, 901 P.2d at 56. Thereafter, he filed a petition for postconviction relief alleging ineffective assistance of trial counsel and numerous other issues. We concluded that grounds for relief which, in the language of § 46-21-105(2), MCA, “could reasonably have been raised on direct appeal” included issues not properly preserved at the trial level for appeal. Baker, 901 P.2d at 58 (citing State v. Gorder (1990), 243 Mont. 333, 792 P.2d 370). On that basis, we determined that certain of the petitioner’s issues could have been preserved at the trial level and, absent such preservation, the sole means by which they could be raised in a postconviction proceeding was via a claim of ineffective assistance of trial counsel. Baker, 901 P.2d at 58-59.

Baker is squarely on point and dispositive here. Trial counsel having failed to preserve Fifth and Fourth Amendment issues, those issues are barred from substantive determination on a stand-alone basis in this postconviction proceeding. To the extent authorized by Baker, Brown raised those issues in this postconviction proceeding in the context of his ineffective assistance claim against Sheehy and it was not necessary for us to address them substantively in our resolution of that claim above.

Nor is Brown’s reliance on Fitzpatrick v. State (1983), 206 Mont. 205, 671 P.2d 1, and State v. Henricks (1983), 206 Mont. 469, 672 P.2d 20, for the proposition that he is entitled to a substantive determination of the Fifth and Fourth Amendment issues well placed. In Henricks, we relied on Fitzpatrick in determining that we could consider issues in a postconviction proceeding which could have been raised on direct appeal. Henricks, 672 P.2d at 23 (citing Fitzpatrick, 671 P.2d 1). We subsequently observed that the Fitzpatrick postconviction relief proceeding was instituted before the effective date of the procedural bar contained in § 46-21-105(2), MCA, and, therefore, that Fitzpatrick was improperly used as authority for our conclusion in Henricks. Kills on Top, 901 P.2d at 1386. As a result, we overruled Henricks. Kills On Top, 901 P.2d at 1387.

We hold that the District Court did not err in concluding that Brown’s claimed violations of his privilege against self-incrimination and his right to be free from unreasonable searches were not properly before it.

Affirmed.

JUSTICES HUNT, NELSON, LEAPHART and ERDMANN concur.