Shreves v. State

2007 MT 170N

• Court: Montana Supreme Court
• Decided: July 17, 2007
• Docket: 06-0122
• Status: Published

Opinion

DA 06-0122

IN THE SUPREME COURT OF THE STATE OF MONTANA 2007 MT 170N

RICHARD EDWARD SHREVES,

Petitioner and Appellant,

v.

STATE OF MONTANA,

Respondent and Respondent.

APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. ADV 2005-311 Honorable Dorothy McCarter, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Richard Shreves, Pro Se; Deer Lodge, Montana

For Respondent:

The Honorable Mike McGrath, Attorney General; Tammy K. Plubell, Assistant Attorney General, Helena, Montana

Leo Gallagher, Lewis and Clark County Attorney; Lisa Leckie, Deputy County Attorney, Helena, Montana

Submitted on Briefs: April 18, 2007

Decided: July 17, 2007

Filed:

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

¶1 Pursuant to Section 1, 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 Richard Edward Shreves appeals from the order entered by the First Judicial

District Court, Lewis and Clark County, denying his petition for postconviction relief.

The District Court reasoned that Shreves’ ineffective assistance of counsel claims were

without merit, his other claims were not appropriately raised in postconviction

proceedings because they could have been raised on direct appeal and, in any event, the

latter claims were without merit.

¶3 On appeal, Shreves argues his counsel was ineffective in failing to assert a defense

of mental disease or defect or negotiate a plea bargain, despite his assertion of innocence

and his instruction to take the case to trial. In this respect, Shreves contends counsel

should have realized his mental state at the time was such that he would distrust and fear

her as an authority figure, second-guess her motives, and demonstrate evasiveness with

respect to matters that might incriminate himself. In addition, Shreves asserts counsel

was ineffective because she inadequately communicated with him regarding his request

2 for a change of venue on resentencing and other issues; failed to investigate matters

involving his mental state; used profanity with him; and responded to Shreves’ expressed

concern that some issues would be procedurally barred in postconviction proceedings by

misleading him into believing she would raise certain issues on direct appeal and by

stating some issues were “dead” or more appropriately raised in postconviction

proceedings than on direct appeal. Regarding his claims concerning prosecutorial

misconduct, his mental state during preliminary proceedings and trial, and juror bias or

misconduct, Shreves relies on Hans v. State, 283 Mont. 379, 410, 942 P.2d 674, 693

(1997), for the proposition that counsel’s “abandonment” of him—which Shreves asserts

has resulted from counsel’s failure to raise the issues on direct appeal after sentencing or

resentencing—entitles him to raise the issues in postconviction proceedings even though

they were not raised on direct appeal.

¶4 Shreves also posits that, at a hearing regarding his representation before his

resentencing, the resentencing judge demonstrated bias regarding counsel’s abilities, did

not allow Shreves to fully present his complaints regarding counsel’s representation, and

rejected his request for a change of venue for resentencing. In addition, Shreves contends

the resentencing judge was generally biased against him because that judge had presided

over his initial District Court appearance, when he was exhibiting symptoms of mental

illness.

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

3 appeal is without merit because the issues are clearly controlled by settled Montana law

that the District Court correctly interpreted.

¶6 Affirmed.

/S/ KARLA M. GRAY

We concur:

/S/ JOHN WARNER /S/ JAMES C. NELSON /S/ PATRICIA COTTER /S/ JIM RICE