Strickland test in Montana

2025This Court applies the test from Strickland v. Washington, 466 U.S. 668 , 104 S. Ct. 2052 (1984), which requires the defendant “show not only that his counsel’s performance was deficient, but that the deficient performance was prejudicial to the defendant.” Morgan, ¶ 9 (citing Strickland, 466 U.S. at 687 , 104 S. Ct. at 2064 ). ¶36 Prior to ruling on whether the defendant has satisfied the Strickland test, the Court must determine whether a direct appeal is the proper forum for the ineffective assistance of counsel claim.

2025This Court applies the test from Strickland v. Washington, 466 U.S. 668 , 104 S. Ct. 2052 (1984), which requires the defendant “show not only that his counsel’s performance was deficient, but that the deficient performance was prejudicial to the defendant.” Morgan, ¶ 9 (citing Strickland, 466 U.S. at 687 , 104 S. Ct. at 2064 ). ¶36 Prior to ruling on whether the defendant has satisfied the Strickland test, the Court must determine whether a direct appeal is the proper forum for the ineffective assistance of counsel claim.

2001Hans, 283 Mont. at 392 , 942 P.2d at 682 . ¶9 The second prong of the Strickland test requires a defendant to show that counsel’s deficient performance prejudiced the defense.

2001Hans, 283 Mont. at 392 , 942 P.2d at 682 . ¶9 The second prong of the Strickland test requires a defendant to show that counsel’s deficient performance prejudiced the defense.

2022Under the first prong of the governing test for IAC claims, a client must demonstrate that the actions of their counsel or counsels were deficient or “fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 687-88 , 104 S. Ct. 2052, 2064 (1984); State v. Kougl, 2004 MT 243, ¶ 11 , 323 Mont. 6 , 97 P.3d 1095 (citing Strickland’s test for IAC claims).

2022Under the first prong of the governing test for IAC claims, a client must demonstrate that the actions of their counsel or counsels were deficient or “fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 687-88 , 104 S. Ct. 2052, 2064 (1984); State v. Kougl, 2004 MT 243, ¶ 11 , 323 Mont. 6 , 97 P.3d 1095 (citing Strickland’s test for IAC claims).

2005State v. Berg, 1999 MT 282, ¶ 28 , 296 Mont. 546, ¶ 28 , 991 P.2d. 428, ¶ 28 (internal citations omitted). 6 ¶14 Given that we have found no merit to Herman’s contentions concerning his designation as a persistent felony offender, even if we assume, arguendo, that he received ineffective assistance of counsel, he has failed to satisfy the second prong of the Strickland test.

2005State v. Berg, 1999 MT 282, ¶ 28 , 296 Mont. 546, ¶ 28 , 991 P.2d. 428, ¶ 28 (internal citations omitted). 6 ¶14 Given that we have found no merit to Herman’s contentions concerning his designation as a persistent felony offender, even if we assume, arguendo, that he received ineffective assistance of counsel, he has failed to satisfy the second prong of the Strickland test.

2021Sartain v. State, 2012 MT 164 , ¶¶ 9 and 11, 365 Mont. 483 , 285 P.3d 407 ; Whitlow v. State, 2008 MT 140, ¶¶ 10-14 , 343 Mont. 90 , 183 P.3d 861 . 3 See § 46-18-236(1)(b), MCA. 4 See § 3-1-317, MCA. 5 See § 46-8-113, MCA. 6 See § 46-18-111(3), MCA. 7 See § 46-18-236(1)(c) and (7)(a), MCA. 8 See § 46-18-232(1), MCA (costs of prosecution, prosecution litigation costs (per § 25-10-201, MCA), jury service costs, and probation/community service supervision costs). 3 ¶5 Under the first element of the Strickland test, the performance of counsel was constitutionally deficient only if it “fell below a

2021Sartain v. State, 2012 MT 164 , ¶¶ 9 and 11, 365 Mont. 483 , 285 P.3d 407 ; Whitlow v. State, 2008 MT 140, ¶¶ 10-14 , 343 Mont. 90 , 183 P.3d 861 . 3 See § 46-18-236(1)(b), MCA. 4 See § 3-1-317, MCA. 5 See § 46-8-113, MCA. 6 See § 46-18-111(3), MCA. 7 See § 46-18-236(1)(c) and (7)(a), MCA. 8 See § 46-18-232(1), MCA (costs of prosecution, prosecution litigation costs (per § 25-10-201, MCA), jury service costs, and probation/community service supervision costs). 3 ¶5 Under the first element of the Strickland test, the performance of counsel was constitutionally deficient only if it “fell below a

2002State v. Harris, 2001 MT 231, ¶ 18 , 306 Mont. 525, ¶ 18 , 36 P.3d 372, ¶ 18 (citing Hagen v. State, 1999 MT 8, ¶ 10 , 293 Mont. 60, ¶ 10 , 973 P.2d 233, ¶ 10 ). ¶15 Under the Strickland test, the petitioner must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense.

2002State v. Harris, 2001 MT 231, ¶ 18 , 306 Mont. 525, ¶ 18 , 36 P.3d 372, ¶ 18 (citing Hagen v. State, 1999 MT 8, ¶ 10 , 293 Mont. 60, ¶ 10 , 973 P.2d 233, ¶ 10 ). ¶15 Under the Strickland test, the petitioner must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense.

2007State v. Boyer, 215 Mont. 143 , 695 P.2d 829 (1985). ¶19 Applying the Strickland test to trial counsel’s performance, we conclude, as we observed in Yecovenko , ¶ 22, that trial counsel ineffectively represented Yecovenko by proffering a motion to sever to the District Court that did not satisfy the threshold requirements for a pretrial motion.

2007State v. Boyer, 215 Mont. 143 , 695 P.2d 829 (1985). ¶19 Applying the Strickland test to trial counsel’s performance, we conclude, as we observed in Yecovenko , ¶ 22, that trial counsel ineffectively represented Yecovenko by proffering a motion to sever to the District Court that did not satisfy the threshold requirements for a pretrial motion.

2005Further, we have previously held that: [T]he two prongs of the Strickland test need not be addressed “in the same order... if the defendant makes an insufficient showing on one ....’’Dawson v. State, 2000 MT 219, ¶ 21 , 301 Mont. 135, ¶ 21 , 10 P.3d 49, ¶ 21 (citing Strickland, 466 U.S. at 697 , 104 S.Ct. at 2069 , 80 L.Ed.2d at 699 ).

2005Further, we have previously held that: [T]he two prongs of the Strickland test need not be addressed “in the same order... if the defendant makes an insufficient showing on one ....’’Dawson v. State, 2000 MT 219, ¶ 21 , 301 Mont. 135, ¶ 21 , 10 P.3d 49, ¶ 21 (citing Strickland, 466 U.S. at 697 , 104 S.Ct. at 2069 , 80 L.Ed.2d at 699 ).

2000State v. Boyer (1985), 215 Mont. 143, 147 , 695 P.2d 829, 831 (adopting the Strickland test in Montana); Hill v. Lockhart (1985), 474 U.S. 52, 58 (Strickland test applies to challenges to guilty pleas).

2000State v. Boyer (1985), 215 Mont. 143, 147 , 695 P.2d 829, 831 (adopting the Strickland test in Montana); Hill v. Lockhart (1985), 474 U.S. 52, 58 (Strickland test applies to challenges to guilty pleas).

2013CHIEF JUSTICE McGRATH, JUSTICES McKINNON, COTTER, RICE, WHEAT and MORRIS concur. 1 We reversed Rogers’s felony assault with a weapon conviction and remanded the case for a new trial because Rogers “established both error and prejudice under the Strickland test for ineffective assistance of counsel.” State v. Rogers, 2001 MT 165, ¶ 23 , 306 Mont. 130 , 32 P.3d 724 .

2013CHIEF JUSTICE McGRATH, JUSTICES McKINNON, COTTER, RICE, WHEAT and MORRIS concur. 1 We reversed Rogers’s felony assault with a weapon conviction and remanded the case for a new trial because Rogers “established both error and prejudice under the Strickland test for ineffective assistance of counsel.” State v. Rogers, 2001 MT 165, ¶ 23 , 306 Mont. 130 , 32 P.3d 724 .

2021Whitlow, ¶ 11 (citing Adams v. State, 2007 MT 35, ¶ 22 , 336 Mont. 63 , 153 P.3d 601 and Strickland, 466 U.S. at 697 , 104 S. Ct. at 2069 ). 6 1112 We are to "indulge a strimg presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Whitlow, ¶ 21 (citing Strickland, 466 U.S. at 689 , 104 S. Ct. at 2065 ); see also State v. Hamilton, 2007 MT 223, ¶ 16 , 339 Mont. 92 , 167 P.3d 906 (stating that "[t]here is a strong presumption with regard to the first prong of the Strickland test that trial counsel's performance was based on sound trial strategy and

2021Whitlow, ¶ 11 (citing Adams v. State, 2007 MT 35, ¶ 22 , 336 Mont. 63 , 153 P.3d 601 and Strickland, 466 U.S. at 697 , 104 S. Ct. at 2069 ). 6 1112 We are to "indulge a strimg presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Whitlow, ¶ 21 (citing Strickland, 466 U.S. at 689 , 104 S. Ct. at 2065 ); see also State v. Hamilton, 2007 MT 223, ¶ 16 , 339 Mont. 92 , 167 P.3d 906 (stating that "[t]here is a strong presumption with regard to the first prong of the Strickland test that trial counsel's performance was based on sound trial strategy and

2021Sartain v. State, 2012 MT 164 , ¶¶ 9 and 11, 365 Mont. 483 , 285 P.3d 407 ; Whitlow v. State, 2008 MT 140, ¶¶ 10-14 , 343 Mont. 90 , 183 P.3d 861 . 3 See § 46-18-236(1)(b), MCA. 4 See § 3-1-317, MCA. 5 See § 46-8-113, MCA. 6 See § 46-18-111(3), MCA. 7 See § 46-18-236(1)(c) and (7)(a), MCA. 8 See § 46-18-232(1), MCA (costs of prosecution, prosecution litigation costs (per § 25-10-201, MCA), jury service costs, and probation/community service supervision costs). 3 ¶5 Under the first element of the Strickland test, the performance of counsel was constitutionally deficient only if it “fell below a

2021Sartain v. State, 2012 MT 164 , ¶¶ 9 and 11, 365 Mont. 483 , 285 P.3d 407 ; Whitlow v. State, 2008 MT 140, ¶¶ 10-14 , 343 Mont. 90 , 183 P.3d 861 . 3 See § 46-18-236(1)(b), MCA. 4 See § 3-1-317, MCA. 5 See § 46-8-113, MCA. 6 See § 46-18-111(3), MCA. 7 See § 46-18-236(1)(c) and (7)(a), MCA. 8 See § 46-18-232(1), MCA (costs of prosecution, prosecution litigation costs (per § 25-10-201, MCA), jury service costs, and probation/community service supervision costs). 3 ¶5 Under the first element of the Strickland test, the performance of counsel was constitutionally deficient only if it “fell below a

2025See Heddings v. State, 2011 MT 228, ¶ 33 , 362 Mont. 90 , 265 P.3d 600 (“[A] claim of constitutionally ineffective assistance of counsel will not succeed when predicated upon counsel’s failure to make motions or objections which, under the circumstances, would have been frivolous, which would have been, arguably, without procedural or substantive merit, or which, otherwise, would likely not have changed the outcome of the proceeding.”). ¶20 Lowry also claims his defense counsel rendered IAC by failing to object to admission of the surveillance video when the State moved for its admission durin

2025See Heddings v. State, 2011 MT 228, ¶ 33 , 362 Mont. 90 , 265 P.3d 600 (“[A] claim of constitutionally ineffective assistance of counsel will not succeed when predicated upon counsel’s failure to make motions or objections which, under the circumstances, would have been frivolous, which would have been, arguably, without procedural or substantive merit, or which, otherwise, would likely not have changed the outcome of the proceeding.”). ¶20 Lowry also claims his defense counsel rendered IAC by failing to object to admission of the surveillance video when the State moved for its admission durin

2023Because a defendant must meet both prongs of the Strickland test, “if an insufficient showing is made regarding one prong, there is no need to address the other.” Adams v. State, 2007 MT 35, ¶ 22 , 336 Mont. 63 , 153 P.3d 601 .

2023Because a defendant must meet both prongs of the Strickland test, “if an insufficient showing is made regarding one prong, there is no need to address the other.” Adams v. State, 2007 MT 35, ¶ 22 , 336 Mont. 63 , 153 P.3d 601 .

2025State v. Kougl, 2004 MT 243 , ¶ 14, 323 Mont. 6 , 97 P.3d 1095 .

2022Under the first prong of the governing test for IAC claims, a client must demonstrate that the actions of their counsel or counsels were deficient or “fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 687-88 , 104 S. Ct. 2052, 2064 (1984); State v. Kougl, 2004 MT 243, ¶ 11 , 323 Mont. 6 , 97 P.3d 1095 (citing Strickland’s test for IAC claims).

2010With respect to the second prong of the Strickland test, *158 “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.” Crosley , ¶ 55 (quoting State v. Harris, 2001 MT 231, ¶ 19 , 306 Mont. 525 , 36 P.3d 372 ). ¶70 Before reaching the merits of an ineffective assistance of counsel claim on direct appeal, we must determine whether the allegations are properly before us.

2010With respect to the second prong of the Strickland test, *158 “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.” Crosley , ¶ 55 (quoting State v. Harris, 2001 MT 231, ¶ 19 , 306 Mont. 525 , 36 P.3d 372 ). ¶70 Before reaching the merits of an ineffective assistance of counsel claim on direct appeal, we must determine whether the allegations are properly before us.

2025An involuntary commitment “is supposed to help, not punish, the person who may be suffering from a mental disorder.” In re K.G.F., ¶ 63; accord In re J.S., ¶ 24 (the State does not exercise its power “in a punitive sense” (citing Addington v. Texas, 441 U.S. 418, 428 , 99 S. Ct. 1804 , 9 Overruled on other grounds by In re J.S., 2017 MT 214, ¶¶ 19, 32 , 388 Mont. 397 , 401 P.3d 197 (to the extent that it defined the standard for effective assistance of counsel in commitment proceedings as more stringent than the two-part Strickland test). 18 1810 (1979) (“a civil commitment proceeding can in n

2025An involuntary commitment “is supposed to help, not punish, the person who may be suffering from a mental disorder.” In re K.G.F., ¶ 63; accord In re J.S., ¶ 24 (the State does not exercise its power “in a punitive sense” (citing Addington v. Texas, 441 U.S. 418, 428 , 99 S. Ct. 1804 , 9 Overruled on other grounds by In re J.S., 2017 MT 214, ¶¶ 19, 32 , 388 Mont. 397 , 401 P.3d 197 (to the extent that it defined the standard for effective assistance of counsel in commitment proceedings as more stringent than the two-part Strickland test). 18 1810 (1979) (“a civil commitment proceeding can in n

2008See ¶ 13 n. 2. ¶21 In addition, we emphasize the point made in Strickland and noted in a number of our own cases that a reviewing court “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance” and the defendant “must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689 , 104 S. Ct. at 2065 (internal quotation marks omitted); see also State v. Hamilton, 2007 MT 223, ¶ 16 , 339 Mont. 92, ¶ 16 , 167 P.3d 906, ¶ 16 (“There is a strong p

2008See ¶ 13 n. 2. ¶21 In addition, we emphasize the point made in Strickland and noted in a number of our own cases that a reviewing court “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance” and the defendant “must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689 , 104 S. Ct. at 2065 (internal quotation marks omitted); see also State v. Hamilton, 2007 MT 223, ¶ 16 , 339 Mont. 92, ¶ 16 , 167 P.3d 906, ¶ 16 (“There is a strong p

2026Cronic, 466 U.S. at 661-62 , 104 S. Ct. at 2047-48 (discussing Powell v. Alabama, 287 U.S. 45 , 53 S. Ct. 55 (1932) (court appointed an out-of-state lawyer with no local experience who had no time to prepare to represent the defendants in a capital case the day of their trial)). 10 errors made by trial counsel,” subject to Strickland’s standard.

2026Cronic, 466 U.S. at 661-62 , 104 S. Ct. at 2047-48 (discussing Powell v. Alabama, 287 U.S. 45 , 53 S. Ct. 55 (1932) (court appointed an out-of-state lawyer with no local experience who had no time to prepare to represent the defendants in a capital case the day of their trial)). 10 errors made by trial counsel,” subject to Strickland’s standard.

2025See State v. Secrease, 2021 MT 212, ¶ 13 , 405 Mont. 229 , 493 P.3d 335 (citing Strickland v. Wash., 466 U.S. 668 , 104 S. Ct. 2052 (1984)).

2025See State v. Secrease, 2021 MT 212, ¶ 13 , 405 Mont. 229 , 493 P.3d 335 (citing Strickland v. Wash., 466 U.S. 668 , 104 S. Ct. 2052 (1984)).