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State v. Maki8/24/2004
counsel's representation fell below an objective standard of reasonableness." Strickland , 466 U.S. at 687-88, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.
We have recently declined to consider ineffective assistance of counsel claims on direct appeal where the record, as here, is silent as to why counsel made his decisions during the criminal proceeding. See State v. Herrman , 2003 MT 149, 33, 316 Mont. 198, 33, 70 P.3d 738, 33; State v. St. John , 2001 MT 1, 40, 304 Mont. 47, 40, 15 P.3d 970, 40. However, the issue of why Maki's counsel did not file a motion to dismiss is not relevant here because the substantive legal basis of Maki's argument cannot provide relief.
Maki argues that his trial defense counsel should have filed a motion to dismiss the charge because Maki was not on a "way of this state open to the public" as defined by § 61-8-101(1), MCA:
61-8-101. Application-exceptions. (1) As used in this chapter, "ways of this state open to the public" means any highway, road, alley, lane, parking area, or other public or private place adapted and fitted for public travel that is in common use by the public.
Section 61-8-401, MCA, under which Maki was charged, reads as follows:
61-8-401. Driving under influence of alcohol or drugs. (1) It is unlawful and punishable, as provided in 61-8-442, 61-8-714, and 61-8-731 through 61-8-734, for a person who is under the influence of:
(a) alcohol to drive or be in actual physical control of a vehicle upon the ways of this state open to the public; . . .
However, because "ways of this state open to the public" is an element of the offense defined by § 61-8-401, MCA, the issue was before the jury, and Maki had the opportunity to contest the point. He did not need to offer a motion to dismiss to raise this issue. Moreover, the jury necessarily decided as a matter of fact that Maki was on a "way of this state open to the public" in order to convict him of the offense charged, though Maki does not challenge this aspect of the jury's conclusion.
Therefore, Maki was neither prejudiced nor deprived of a fair trial by his counsel's failure to present a motion to dismiss. As an element of the offense, the public roadway question was placed at issue by the trial itself and resolved by the jury. Accordingly, we hold that Maki did not receive ineffective assistance of counsel because his counsel failed to file a motion to dismiss.
Affirmed.
JIM RICE
We concur:
KARLA M. GRAY
PATRICIA O. COTTER
JOHN WARNER
JIM REGNIER
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