Rose v. State, 2013 MT 161 (June 18, 2013) (7-0) (Wheat, J.)
Issue: Did the district court properly deny Rose’s claim for postconviction relief, which alleged (1) that Rose’s trial counsel provided ineffective assistance, (2) that appellate counsel provided ineffective assistance by failing to raise certain issues on appeal, and (3) that Rose was denied access to counsel at a critical stage of the trial.
Short Answer: (1) Yes, (2) yes, and (3) this issue could have been raised on direct appeal and will not be considered in a petition for postconviction relief.
Facts: Robert Rose was charged with aggravated kidnapping, assault with a weapon, and assault on a police officer in January 2002. A jury found Rose guilty of all three charges in June 2003 after a four-day trial. This Court affirmed his conviction. Rose I.
Kelli Sather was appointed to represent Rose in July 2002. In May 2003, the Ravalli County Attorney, George Corn, sent Sather a letter detailing a proposed plea agreement. Sather’s research led her to conclude that the proposed plea was not in conformity with the law. She and her co-counsel met with Corn to discuss the proposed agreement. She did not discuss the proposal from Corn with Rose before this meeting. Sather told Corn that his proposal was not proper, and counter-offered. Corn withdrew the offer.
After the first day of trial, which ended around 5:30 p.m., Sather arrived at the jail around 9:00 p.m. Jail staff told Sather she had to leave around 10 p.m. She claims she was removed from her meeting with Rose, with information yet to be discussed.
Rose’s appellate counsel did not raise the issue of his restricted access to Sather during trial as an issue on direct appeal.
Procedural Posture & Holding: Rose petitioned for postconviction relief in September 2010. The district court dismissed Rose’s claims in a 91-page order in January 2012. Rose appeals three claims of ineffective assistance, and the Supreme Court affirms.
Reasoning: (1) Ineffective assistance claims are appropriate for review in a petition for postconviction relief when it is not apparent from the record why counsel took a particular course of action. If it is apparent, the claim must be brought on direct appeal. Rose claims he would have accepted Corn’s plea offer but Sather did not inform him of it. Because the record does not indicate why or how Sather rejected the offer, it is appropriately raised in his petition for postconviction relief.
The law is clear now, although it was not in 2003: A sentence that imposes separate sentences for both the persistent felony offender status and the underlying offense is illegal. The remedy for ineffective assistance arising out of a rejected plea is an order to the state to again offer the plea agreement, But current law does not entitle Rose to that offer. He therefore cannot establish prejudice.
(2) Appellate counsel is not required to raise every colorable issue on appeal. The presumption of effective assistance is overcome only when ignored issues are clearly stronger than those presented. Rose cannot demonstrate that his access to counsel was so limited that the Court can presume prejudice.
(3) Rose’s claim about access to his counsel on the overnight recess could have been raised on direct appeal, and will not be considered in a petition for postconviction relief.