Audet v. State

2006 MT 28N

• Court: Montana Supreme Court
• Decided: February 7, 2006
• Docket: 05-373
• Status: Published

Opinion

No. 05-373

IN THE SUPREME COURT OF THE STATE OF MONTANA

2006 MT 28N

DAVID S. AUDET,

Petitioner and Appellant,

v.

STATE OF MONTANA,

Respondent and Respondent.

APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. CDV-04-1004 Honorable Kenneth R. Neill, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

David S. Audet, Pro Se, Shelby, Montana

For Respondent:

Honorable Mike McGrath, Attorney General; Joslyn M. Hunt, Assistant Attorney General, Helena, Montana

Brant Light, Cascade County Attorney; Susan Weber, Chief Deputy County Attorney, Great Falls, Montana

Submitted on Briefs: January 10, 2006

Decided: February 7, 2006

Filed:

__________________________________________ Clerk Chief Justice Karla M. Gray delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be cited

as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and

its case title, Supreme Court cause number and disposition shall be included in this Court’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports

¶2 David S. Audet appeals from the order of the Eighth Judicial District Court, Cascade

County, denying his petition for postconviction relief after a hearing regarding Audet’s claim

that trial counsel was ineffective for conceding Audet’s guilt to a misdemeanor charge at his

jury trial. The District Court noted trial counsel’s testimony that his reasons for conceding

Audet’s guilt were to bolster his credibility in denying a separate felony charge and to appeal

to the jury to convict him of one offense rather than two. It determined that counsel had

advised Audet of the strategy and the tactical decision was within the broad range of

reasonable decisions regarding trial tactics. On those grounds, the court concluded Audet

failed to establish trial counsel had performed deficiently.

¶3 Audet appeals, asserting his counsel was not present at his arraignment. The record

reflects, however, that another lawyer from the Cascade County Public Defender’s office was

present. Audet also contends the trial court improperly declined to accept his guilty plea to

the misdemeanor charge at the arraignment. The record indicates that the District Court

refused the plea based on its belief that Audet had not had sufficient time to consult with

counsel. Finally, Audet argues that, under these circumstances, counsel’s concession of his 2 guilt on the misdemeanor charge constituted ineffective assistance of counsel.

¶4 We have determined to decide this case pursuant to Section I, Paragraph 3(d)(v), of

our 1996 Internal Operating Rules, as amended in 2003, which provides for memorandum

opinions. It is manifest on the face of the briefs and the record that Audet’s appeal is without

merit because the issues are clearly controlled by settled Montana law that the District Court

correctly interpreted.

¶5 Affirmed.

/S/ KARLA M. GRAY

We concur:

/S/ W. WILLIAM LEAPHART /S/ JOHN WARNER /S/ JIM RICE /S/ BRIAN MORRIS