Summary
The Supreme Court of Montana affirmed the denial of Gordon Sellner's petition for postconviction relief following his conviction for attempted deliberate homicide. The court held that Sellner's amended petition was not procedurally barred by the applicable one-year limitation period, but rejected his claims of ineffective assistance of counsel, including claims concerning self-defense, mitigated deliberate homicide, impeachment strategy, and a failure-to-agree jury instruction. Because the court found no deficient performance, it did not reach prejudice.
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Practice areas
Questions Presented
- Whether Sellner's amended postconviction petition was barred by Montana's one-year postconviction statute of limitations.
- Whether trial counsel rendered ineffective assistance by failing to investigate and present a justifiable-use-of-force defense.
- Whether trial counsel rendered ineffective assistance by abandoning an attempted mitigated deliberate homicide defense.
- Whether trial counsel rendered ineffective assistance by pursuing impeachment based on Parcell's civil lawsuit.
- Whether trial counsel rendered ineffective assistance by failing to request a failure-to-agree instruction concerning the lesser included offense.
- Whether trial counsel rendered ineffective assistance through other alleged errors involving jury challenges, jury instructions, an alleged conflict of interest, and sentencing preparation.
- Whether Sellner was prejudiced by trial counsel's performance.
Holdings
- Montana Code § 46-21-105(1)(a) permits one amendment to an original postconviction petition and, under the circumstances presented, does not require the amendment to be filed within one year after the conviction became final. The amended petition therefore was not procedurally barred.
- Sellner failed to establish deficient performance under the two-pronged ineffective-assistance framework because counsel's investigation, defense theories, impeachment strategy, and handling of the jury instruction were within the range of reasonable professional assistance or were inadequately supported by the record.
- On this record, counsel's failure to request a failure-to-agree instruction did not constitute deficient performance because Sellner presented no evidence rebutting the presumption that counsel acted reasonably and the decision was an area in which tactical discretion was available.
- The court did not reach the prejudice prong because Sellner failed to establish deficient performance.
Key quotations
“Therefore, Sellner was not procedurally barred from filing his amended petition.” (¶ 16)
“Accordingly, we conclude that Sellner's trial counsel's failure to offer a “failure to agree” instruction did not constitute deficient performance.” (¶ 48)
“The plain language of § 46-21-105(1), MCA, permitted one amendment of an original petition and did not bar Sellner's amendment more than two years after finalization of his conviction under the circumstances here.” (¶ 55)
Factual background
Sellner deliberately shot Missoula County Deputy Sheriff Robert Parcell in the chest while fleeing from him; Parcell survived. Sellner was later convicted of attempted deliberate homicide, although he was acquitted of criminal endangerment arising from firing a gun into nearby woods where law-enforcement officers were stationed. In postconviction proceedings, Sellner alleged that trial counsel was ineffective in investigating and presenting self-defense and attempted mitigated deliberate homicide theories, impeaching Parcell through a related civil action, requesting a failure-to-agree instruction, and addressing several other matters.
Procedural history
A jury convicted Sellner of attempted deliberate homicide for shooting Deputy Sheriff Robert Parcell, and the Montana Supreme Court affirmed the conviction on direct appeal. Sellner filed a timely postconviction petition in 1998 and, with leave of court, filed an amended petition alleging ineffective assistance of counsel in 2001. The Twentieth Judicial District Court, Lake County, denied the amended petition on September 5, 2002, and the Montana Supreme Court affirmed.