ineffective assistance claim in Montana

2017In general, “[t]he test to determine if an ineffective assistance claim is properly brought on direct appeal is whether the record contains the answer as to ‘why’ counsel took, or failed to take, action in providing a defense.” State v. Upshaw, 2006 MT 341, ¶ 33 , 335 Mont. 162 , 153 P.3d 579 (citing State v. White, 2001 MT 149, ¶ 20 , 306 Mont. 58 , 30 P.3d 340 ).

2017In general, “[t]he test to determine if an ineffective assistance claim is properly brought on direct appeal is whether the record contains the answer as to ‘why’ counsel took, or failed to take, action in providing a defense.” State v. Upshaw, 2006 MT 341, ¶ 33 , 335 Mont. 162 , 153 P.3d 579 (citing State v. White, 2001 MT 149, ¶ 20 , 306 Mont. 58 , 30 P.3d 340 ).

2017State v. Kougl, 2004 MT 243, ¶ 14 , 323 Mont. 6 , 97 P.3d 1095 .

2017State v. Kougl, 2004 MT 243, ¶ 14 , 323 Mont. 6 , 97 P.3d 1095 .

2017State v. Kougl, 2004 MT 243, ¶ 14 , 323 Mont. 6 , 97 P.3d 1095 .

2017State v. Kougl, 2004 MT 243, ¶ 14 , 323 Mont. 6 , 97 P.3d 1095 .

2014Whitlow v. State, 2008 MT 140, ¶ 11 , 343 Mont. 90 , 183 P.3d 861 (citing Adams v. State, 2007 MT 35, ¶ 22 , 336 Mont. 63 , 153 P.3d 601 ). “[T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S at 697, 104 S. Ct. at 2069 .

2014Whitlow v. State, 2008 MT 140, ¶ 11 , 343 Mont. 90 , 183 P.3d 861 (citing Adams v. State, 2007 MT 35, ¶ 22 , 336 Mont. 63 , 153 P.3d 601 ). “[T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S at 697, 104 S. Ct. at 2069 .

2025The record “must adequately document a challenged act or omission of defense counsel for the defendant to raise an ineffective assistance claim on direct appeal.” Sawyer, ¶ 13 (quoting Soraich v. State, 2002 MT 187, ¶ 21 , 311 Mont. 90 , 53 P.3d 878 ).

2025The record “must adequately document a challenged act or omission of defense counsel for the defendant to raise an ineffective assistance claim on direct appeal.” Sawyer, ¶ 13 (quoting Soraich v. State, 2002 MT 187, ¶ 21 , 311 Mont. 90 , 53 P.3d 878 ).

2020If Dineen was not prejudiced, we therefore need not decide whether he has met his burden to demonstrate deficient performance. ¶25 To establish prejudice, Dineen must prove a “reasonable probability” that, without counsel’s error, “the result of the proceeding would have been different.” State v. Lehrkamp, 2017 MT 203, ¶ 26 , 388 Mont. 295 , 400 P.3d 697 (citing State v. Turnsplenty, 2003 MT 159, ¶ 14 , 316 Mont. 275 , 70 P.3d 1234 ).

2020If Dineen was not prejudiced, we therefore need not decide whether he has met his burden to demonstrate deficient performance. ¶25 To establish prejudice, Dineen must prove a “reasonable probability” that, without counsel’s error, “the result of the proceeding would have been different.” State v. Lehrkamp, 2017 MT 203, ¶ 26 , 388 Mont. 295 , 400 P.3d 697 (citing State v. Turnsplenty, 2003 MT 159, ¶ 14 , 316 Mont. 275 , 70 P.3d 1234 ).

2007Hendricks , ¶ 7. ¶17 However, before reaching the merits of an ineffective assistance claim, this Court must first determine whether the “allegations are properly before us or whether the ineffective assistance of counsel claims must be pursued in a petition for postconviction relief pursuant to § 46-21-105(2), MCA.” State v. Dyfort, 2000 MT 338, ¶ 8 , 303 Mont. 153, ¶ 8 , 15 P.3d 464, ¶ 8 .

2007Hendricks , ¶ 7. ¶17 However, before reaching the merits of an ineffective assistance claim, this Court must first determine whether the “allegations are properly before us or whether the ineffective assistance of counsel claims must be pursued in a petition for postconviction relief pursuant to § 46-21-105(2), MCA.” State v. Dyfort, 2000 MT 338, ¶ 8 , 303 Mont. 153, ¶ 8 , 15 P.3d 464, ¶ 8 .

2003Gazda further relies upon State v. Finley (1996), 276 Mont. 126 , 915 P.2d 208 , where this Court held the district court had erred by “failing to appoint an attorney for Finley at the post-trial hearing when it became apparent that counsel was taking an antagonistic position toward his client.” Finley, 276 Mont. at 146 , 915 P.2d at 220 . ¶28 The State maintains that a hearing on the merits of an ineffective assistance claim may require appointing separate counsel, however, this Court has not required such appointment during the initial inquiry.

2003Gazda further relies upon State v. Finley (1996), 276 Mont. 126 , 915 P.2d 208 , where this Court held the district court had erred by “failing to appoint an attorney for Finley at the post-trial hearing when it became apparent that counsel was taking an antagonistic position toward his client.” Finley, 276 Mont. at 146 , 915 P.2d at 220 . ¶28 The State maintains that a hearing on the merits of an ineffective assistance claim may require appointing separate counsel, however, this Court has not required such appointment during the initial inquiry.

1997State v. Gonzales (1996), 278 Mont. 525, 532 , 926 P.2d 705, 710 ; State v. Sheppard (1995), 270 Mont. 122, 128 , 890 P.2d 754,757 ; State v. Coates (1990), 241 Mont. 33 1,337 , 786 P.2d 1182, 1185 .

1997State v. Gonzales (1996), 278 Mont. 525, 532 , 926 P.2d 705, 710 ; State v. Sheppard (1995), 270 Mont. 122, 128 , 890 P.2d 754, 757 ; State v. Coates (1990), 241 Mont. 331, 337 , 786 P.2d 1182, 1185 .

1997State v. Gonzales (1996), 278 Mont. 525, 532 , 926 P.2d 705, 710 ; State v. Sheppard (1995), 270 Mont. 122, 128 , 890 P.2d 754,757 ; State v. Coates (1990), 241 Mont. 33 1,337 , 786 P.2d 1182, 1185 .

1997State v. Gonzales (1996), 278 Mont. 525, 532 , 926 P.2d 705, 710 ; State v. Sheppard (1995), 270 Mont. 122, 128 , 890 P.2d 754,757 ; State v. Coates (1990), 241 Mont. 33 1,337 , 786 P.2d 1182, 1185 .

1997State v. Gonzales (1996), 278 Mont. 525, 532 , 926 P.2d 705, 710 ; State v. Sheppard (1995), 270 Mont. 122, 128 , 890 P.2d 754,757 ; State v. Coates (1990), 241 Mont. 33 1,337 , 786 P.2d 1182, 1185 .

1997State v. Gonzales (1996), 278 Mont. 525, 532 , 926 P.2d 705, 710 ; State v. Sheppard (1995), 270 Mont. 122, 128 , 890 P.2d 754,757 ; State v. Coates (1990), 241 Mont. 33 1,337 , 786 P.2d 1182, 1185 .

2026To establish prejudice, a 18 defendant must prove “a reasonable probability that, but for counsel’s error, the result of the proceeding would have been different.” Spottedbear, ¶ 49 (quoting State v. Johnston, 2010 MT 152, ¶ 15 , 357 Mont. 46 , 237 P.3d 70 ). ¶37 We generally review an ineffective assistance claim on direct appeal only when counsel’s reasoning for taking a particular course of action is apparent from the face of the record.

2026To establish prejudice, a 18 defendant must prove “a reasonable probability that, but for counsel’s error, the result of the proceeding would have been different.” Spottedbear, ¶ 49 (quoting State v. Johnston, 2010 MT 152, ¶ 15 , 357 Mont. 46 , 237 P.3d 70 ). ¶37 We generally review an ineffective assistance claim on direct appeal only when counsel’s reasoning for taking a particular course of action is apparent from the face of the record.

2026State v. West, 2026 MT 13, ¶ 44 , 426 Mont. 139 , 583 P.3d 205 .

2022In those instances, the ineffective assistance claim is not susceptible to review on direct appeal, and should be brought in a petition for postconviction relief.” State v. Stratton, 2017 MT 112, ¶ 9 , 387 Mont. 384 , 394 P.3d 192 .

2022In those instances, the ineffective assistance claim is not susceptible to review on direct appeal, and should be brought in a petition for postconviction relief.” State v. Stratton, 2017 MT 112, ¶ 9 , 387 Mont. 384 , 394 P.3d 192 .

2020If Dineen was not prejudiced, we therefore need not decide whether he has met his burden to demonstrate deficient performance. ¶25 To establish prejudice, Dineen must prove a “reasonable probability” that, without counsel’s error, “the result of the proceeding would have been different.” State v. Lehrkamp, 2017 MT 203, ¶ 26 , 388 Mont. 295 , 400 P.3d 697 (citing State v. Turnsplenty, 2003 MT 159, ¶ 14 , 316 Mont. 275 , 70 P.3d 1234 ).

2020If Dineen was not prejudiced, we therefore need not decide whether he has met his burden to demonstrate deficient performance. ¶25 To establish prejudice, Dineen must prove a “reasonable probability” that, without counsel’s error, “the result of the proceeding would have been different.” State v. Lehrkamp, 2017 MT 203, ¶ 26 , 388 Mont. 295 , 400 P.3d 697 (citing State v. Turnsplenty, 2003 MT 159, ¶ 14 , 316 Mont. 275 , 70 P.3d 1234 ).

2019Prejudice will be presumed if an appellant establishes an “actual conflict of interest” provided that it “adversely affected his lawyer’s performance.” State v. Keith, 79 Ohio St.3d 514, 535 , 684 N.E.2d 47 (1997), citing Cuyler v. Sullivan, 446 U.S. 335, 348 , 100 S.Ct. 1708 , 64 L.Ed.2d 333 (1980) and State v. Manross, 40 Ohio St.3d 180, 182 , 532 N.E.2d 735 (1988).

2019Prejudice will be presumed if an appellant establishes an “actual conflict of interest” provided that it “adversely affected his lawyer’s performance.” State v. Keith, 79 Ohio St.3d 514, 535 , 684 N.E.2d 47 (1997), citing Cuyler v. Sullivan, 446 U.S. 335, 348 , 100 S.Ct. 1708 , 64 L.Ed.2d 333 (1980) and State v. Manross, 40 Ohio St.3d 180, 182 , 532 N.E.2d 735 (1988).

2019Prejudice will be presumed if an appellant establishes an “actual conflict of interest” provided that it “adversely affected his lawyer’s performance.” State v. Keith, 79 Ohio St.3d 514, 535 , 684 N.E.2d 47 (1997), citing Cuyler v. Sullivan, 446 U.S. 335, 348 , 100 S.Ct. 1708 , 64 L.Ed.2d 333 (1980) and State v. Manross, 40 Ohio St.3d 180, 182 , 532 N.E.2d 735 (1988).

2019Prejudice will be presumed if an appellant establishes an “actual conflict of interest” provided that it “adversely affected his lawyer’s performance.” State v. Keith, 79 Ohio St.3d 514, 535 , 684 N.E.2d 47 (1997), citing Cuyler v. Sullivan, 446 U.S. 335, 348 , 100 S.Ct. 1708 , 64 L.Ed.2d 333 (1980) and State v. Manross, 40 Ohio St.3d 180, 182 , 532 N.E.2d 735 (1988).

2019Prejudice will be presumed if an appellant establishes an “actual conflict of interest” provided that it “adversely affected his lawyer’s performance.” State v. Keith, 79 Ohio St.3d 514, 535 , 684 N.E.2d 47 (1997), citing Cuyler v. Sullivan, 446 U.S. 335, 348 , 100 S.Ct. 1708 , 64 L.Ed.2d 333 (1980) and State v. Manross, 40 Ohio St.3d 180, 182 , 532 N.E.2d 735 (1988).

2019Prejudice will be presumed if an appellant establishes an “actual conflict of interest” provided that it “adversely affected his lawyer’s performance.” State v. Keith, 79 Ohio St.3d 514, 535 , 684 N.E.2d 47 (1997), citing Cuyler v. Sullivan, 446 U.S. 335, 348 , 100 S.Ct. 1708 , 64 L.Ed.2d 333 (1980) and State v. Manross, 40 Ohio St.3d 180, 182 , 532 N.E.2d 735 (1988).

2019Montgomery No. 25243, 2013-Ohio-5060, ¶ 22 .

2019Montgomery No. 25369, 2013-Ohio-2764, ¶ 31 . {¶ 46} When an ineffective-assistance claim involves an alleged conflict of interest, the foregoing standards are slightly different.

2017State v. Sartain, 2010 MT 213, ¶ 30 , 357 Mont. 483 , 241 P.3d 1032 .

2017State v. Sartain, 2010 MT 213, ¶ 30 , 357 Mont. 483 , 241 P.3d 1032 .

2014Whitlow v. State, 2008 MT 140, ¶ 11 , 343 Mont. 90 , 183 P.3d 861 (citing Adams v. State, 2007 MT 35, ¶ 22 , 336 Mont. 63 , 153 P.3d 601 ). “[T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S at 697, 104 S. Ct. at 2069 .

2014Whitlow v. State, 2008 MT 140, ¶ 11 , 343 Mont. 90 , 183 P.3d 861 (citing Adams v. State, 2007 MT 35, ¶ 22 , 336 Mont. 63 , 153 P.3d 601 ). “[T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S at 697, 104 S. Ct. at 2069 .

2013Where the defendant makes an insufficient showing as to one prong of the test, it is unnecessary to address the other prong.” Hammer v. State, 2008 MT 342, ¶ 10 , 346 Mont. 279 , 194 P.3d 699 (2008) (citing Whitlow, ¶ 11). ¶67 As Ugalde raises a number of unrelated claims, we discuss each in turn.

2013Where the defendant makes an insufficient showing as to one prong of the test, it is unnecessary to address the other prong.” Hammer v. State, 2008 MT 342, ¶ 10 , 346 Mont. 279 , 194 P.3d 699 (2008) (citing Whitlow, ¶ 11). ¶67 As Ugalde raises a number of unrelated claims, we discuss each in turn.

2011State v. Savage, 2011 MT 23, ¶ 23 , 359 Mont. 207 , 248 P.3d 308 .

2011State v. Savage, 2011 MT 23, ¶ 23 , 359 Mont. 207 , 248 P.3d 308 .

2011Redfern filed a notice of appeal two days later, on May 11, 2011, and the District Court could then take no action on his request for reconsideration. ¶9 When a defendant raises an ineffective assistance claim before the court, which by all appearances occurred here, “a district court must conduct an adequate initial inquiry in order to determine whether the allegations are seemingly substantial.” State v. Edwards, 2011 MT 210, ¶ 29 , 361 Mont. 478 , 260 P.3d 396 (citations omitted).

2011Redfern filed a notice of appeal two days later, on May 11, 2011, and the District Court could then take no action on his request for reconsideration. ¶9 When a defendant raises an ineffective assistance claim before the court, which by all appearances occurred here, “a district court must conduct an adequate initial inquiry in order to determine whether the allegations are seemingly substantial.” State v. Edwards, 2011 MT 210, ¶ 29 , 361 Mont. 478 , 260 P.3d 396 (citations omitted).

2011State v. Lindsey, 2011 MT 46, ¶ 43 , 359 Mont. 362 , 249 P.3d 491 .

2011State v. Lindsey, 2011 MT 46, ¶ 43 , 359 Mont. 362 , 249 P.3d 491 .

2009He analogizes to a civil commitment case, In re K.G.F., 2001 MT 140 , 306 Mont. 1 , 29 P.3d 485 , in proposing that we remand for a fact-finding hearing on his claims. ¶39 In In re A.S., ¶ 26, we determined claims of ineffective assistance of counsel in cases involving the termination of parental rights should be evaluated on the basis of two factors: counsel’s training and the adequacy of counsel’s advocacy.

2009He analogizes to a civil commitment case, In re K.G.F., 2001 MT 140 , 306 Mont. 1 , 29 P.3d 485 , in proposing that we remand for a fact-finding hearing on his claims. ¶39 In In re A.S., ¶ 26, we determined claims of ineffective assistance of counsel in cases involving the termination of parental rights should be evaluated on the basis of two factors: counsel’s training and the adequacy of counsel’s advocacy.