State v. Maki8/24/2004
Submitted on Briefs: August 7, 2003
Raymond Maki appeals from his conviction on January 22, 2002, in the Eighth Judicial District Court, Cascade County, finding him guilty of driving under the influence of alcohol. We affirm the conviction.
The sole issue on appeal is whether the defendant received ineffective assistance of counsel because his counsel failed to file a motion to dismiss.
BACKGROUND
On March 21, 2001, Highway Patrolman Myron Dingley saw a car parked off Highway 87 near the Alpha 1 missile access site. Officer Dingley pulled over to do a welfare check and noticed that the driver was slumped over into the passenger seat and that the motor was running. The officer knocked on the window but received no response. He knocked harder, and the driver, who was later identified as Raymond Maki (Maki), sat up and rolled down the window.
Officer Dingley asked Maki to step out of the car, and as Maki did so, he nearly fell down. Dingley requested Maki to take field sobriety tests, but Maki did not appear to understand what Dingley was saying. Throughout the encounter, Maki seemed confused, off-balance and uncooperative, and he smelled of alcohol.
Officer Dingley arrested Maki and charged him with driving under the influence of alcohol in violation of § 61-8-401, MCA. Maki appeared pro se in Justice Court, filing a motion to dismiss the charge. Relying on statements made to him by a woman at Malstrom Air Force Base who told him that the area in which he was parked was an easement on the missile site, Maki argued that he was not on a "way of this state open to the public" as defined by § 61-8-101(1), MCA. The court apparently denied the motion and convicted Maki of the charge. The Justice Court sentenced him to six months in jail, all suspended save one day, plus a $500 fine.
Maki appealed to the District Court but was again convicted, this time by a jury, and he was sentenced to six months in jail, all suspended save fifteen days, plus a $500 fine.
Maki now appeals to this Court.
DISCUSSION
Did the defendant receive ineffective assistance of counsel because his counsel failed to file a motion to dismiss?
The right to counsel in criminal prosecutions is guaranteed by the United States and Montana constitutions, and ineffective assistance of counsel may impinge the fundamental fairness of the proceeding being challenged. State v. Henderson , 2004 MT 173, 4, 322 Mont. 69, 4, 93 P.3d 1231, 4. In considering ineffective assistance of counsel claims, this Court has adopted the two-pronged test articulated by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
Strickland , 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; see also State v. Turnsplenty , 2003 MT 159, 14, 316 Mont. 275, 14, 70 P.3d 1234, 14. "When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that
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