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Herman v. State11/8/2005
ieved counsel, Herman effectively had counsel throughout any appeal process. Although Herman does not argue, per se, that on appeal he received "ineffective assistance of counsel," this appears to be his contention.
We review claims of ineffective assistance of counsel pursuant to the two-prong test set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674).
The first prong of the Strickland test is to determine whether counsel acted within the range of competence demanded of attorneys in criminal cases. The second prong of the Strickland test requires a defendant to show that counsel's deficient performance prejudiced the defense so as to deny the defendant a fair trial. In order to show prejudice, the petitioner must show that there is a reasonable probability that, because of the error, the defendant was denied a fair trial.
State v. Berg, 1999 MT 282, 28, 296 Mont. 546, 28, 991 P.2d. 428, 28 (internal citations omitted).
Given that we have found no merit to Herman's contentions concerning his designation as a persistent felony offender, even if we assume, arguendo, that he received ineffective assistance of counsel, he has failed to satisfy the second prong of the Strickland test. That is, he is unable to show that he was prejudiced.
Finally, there is no merit to Herman's contention that he was prejudiced by not having transcripts of the sentencing hearing. Herman's contention that the District Court lacked statutory authority to designate him a persistent felony offender is a purely legal issue which does not require a review of the sentencing transcript.
Affirmed.
W. WILLIAM LEAPHART
We concur:
KARLA M. GRAY
JIM RICE
PATRICIA O. COTTER
BRIAN MORRIS
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