Summary
The Supreme Court of Montana held that defense counsel provided ineffective assistance by failing, without a tactical reason, to request a statutory "failure to agree" instruction concerning a lesser included offense. The court concluded that the omission was prejudicial, reversed Rogers's felony assault conviction, and remanded for a new trial. The court also held that counsel's failure to file a notice of appeal after Rogers requested one violated his constitutional right to counsel and was not harmless.
Topics
Practice areas
Questions Presented
- Whether trial counsel provided ineffective assistance by failing, without a tactical reason, to request the statutory failure-to-agree instruction allowing the jury to consider a lesser included offense if unable after reasonable effort to reach a verdict on the greater offense.
- Whether the District Court erred in finding harmless counsel's failure to preserve Rogers's right to appeal after Rogers requested that counsel file a notice of appeal.
Holdings
- When sufficient facts support a lesser included offense, defense counsel must offer the failure-to-agree instruction unless counsel has a tactical reason for not doing so. Counsel's unexplained failure to request the instruction was deficient performance, and under the facts of this case it was prejudicial.
- When a defendant requests that counsel file a notice of appeal, counsel's failure to do so is deficient performance, and the error is prejudicial when the defendant would have appealed but for counsel's failure. Counsel may not simply refuse to file the notice based on counsel's assessment that the appeal lacks merit.
Key quotations
“We disagree that jury deadlock is required to raise a reasonable probability that the jury might have reached a different verdict but for the error.” (728)
“To protect against that risk, we hold that when sufficient facts exist to support a conviction for a lesser included offense, defense counsel shall offer the "failure to agree" instruction unless she or he has a tactical reason for not doing so.” (728)
“The failure to appeal therefore violated Rogers's constitutional right to counsel, and we reverse the District Court's finding that such error was harmless.” (729)
Factual background
Rogers and Angela Tretteen were in Rogers's car when Rogers fired a gun out the window after making sexual advances that Tretteen rejected. Tretteen testified that Rogers pointed the gun at her and threatened her in an attempt to force sexual intercourse, while defense witnesses testified that Tretteen later said Rogers did not point the gun at her or try to rape her. Rogers was convicted of felony assault after the jury acquitted him of attempted sexual intercourse without consent and misdemeanor sexual assault.
Procedural history
Rogers was convicted of felony assault and sentenced to ten years plus a ten-year weapon enhancement after being acquitted of attempted sexual intercourse without consent and misdemeanor sexual assault. Trial counsel declined to file a notice of appeal, and Rogers's later pro se appeal was dismissed. The Supreme Court directed that abandoned claims could be raised in post-conviction proceedings. The District Court denied the ineffective-assistance claims as harmless error, granted the double-jeopardy claim, and removed the enhancement. The Supreme Court reversed the felony-assault conviction and remanded for a new trial, and also reversed the District Court's harmless-error ruling concerning counsel's failure to preserve the appeal.
Remand instructions
The felony assault conviction was reversed and the case was remanded for a new trial. The Supreme Court also reversed the District Court's finding that counsel's failure to preserve Rogers's right to appeal was harmless.