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State v. Turnsplenty6/3/2003
who indicated possible bias, failed to inquire about basic criminal concepts such as burden of proof and presumption of innocence, and failed to correct a panelist's misstatement of the law, are similar to the claims of error asserted in Herrman . Further, the inadequacy of the record here requires us to the reach the same conclusion as we did in Herrman . We cannot address Turnsplenty's claims without considering matters outside of the record, and therefore, they are appropriately raised within a post-conviction relief proceeding.
The Court has enunciated a clear rule which can be applied consistently, whether on direct appeal from a conviction, or within a post-conviction relief proceeding. Recently, in Watson v. State , 2002 MT 329, 313 Mont. 209, 61 P.3d 759, we held that the district court abused its discretion in summarily dismissing Watson's petition for post-conviction relief. Watson's ineffective assistance of counsel claim was based on his counsel's failure to question whether Watson suffered from a mental disease or defect rendering him unable to conform his behavior to the requirements of the law for sentencing purposes. Watson , 8. The district court concluded that Watson should have raised his claim on direct appeal and denied his petition. However, we determined the record did not contain any information about why defense counsel failed to question whether Watson suffered from a mental disease or defect during the sentencing hearing. Watson , 16. "As was the case in Harris , we do not know whether the alleged errors in this case reflect a coherent trial strategy or whether they were reasonable and deserve deference and we refuse to speculate." Watson, 15, quoting Soraich v. State , 2002 MT 187, 24, 311 Mont. 90, 24, 53 P.3d 878, 24 . Without being able to answer why defense counsel failed to question Watson's mental state from the record, we concluded that the district court erred by holding that Watson could have raised the issue on direct appeal from his conviction, and remanded for an evidentiary hearing to answer the question. Watson , 16-17.
In this matter, the record on appeal establishes that Turnsplenty's counsel committed the claimed errors, but does not reveal whether counsel's inaction was a reasonable tactical decision or a mistake. Because the record is void of any evidence as to why defense counsel did not take such actions, Turnsplenty has improperly raised his ineffective assistance of counsel claim on direct appeal.
We hold that Turnsplenty's allegations of ineffective assistance of counsel are not record based, and we dismiss this appeal.
JIM RICE
We concur:
W. WILLIAM LEAPHART
JAMES C. NELSON
PATRICIA COTTER
JIM REGNIER
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