Wichman v. Ferriter et al
Filing
25
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS for (13 in 1:14-cv-00023-DLC, 23 in 1:14-cv-00005-DLC, 14 in 1:14-cv-00025-DLC) in full. Petitions for writ of habeas corpus DISMISSED WITH PREJUDICE. Certificate of appealability DENIED. Signed by Judge Dana L. Christensen on 8/7/2015. Mailed to Wichman. Associated Cases: 1:14-cv-00005-DLC, 1:14-cv-00023-DLC, 1:14-cv-00025-DLC (TAG, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
GARRETT LEVI WICHMAN,
FILED
AUG 0 7 2015
Clerk. u.s District court
District Of Montana
Missoula
CV 14-05-BLG-DLC-CSO
CV 14-23-BLG-DLC-CSO
CV 14-25-BLG-DLC-CSO
Petitioner,
vs.
TWENTY-SECOND JUDICIAL
DISTRICT COURT, CARBON
COUNTY, et al.,
ORDER
Respondents.
United States Magistrate Judge Carolyn S. Ostby entered her Findings and
Recommendation on June 15, 2015. Judge Ostby found Wichman's claims fail on
the merits and recommended his petitions for writ of habeas corpus be denied and
dismissed pursuant to 28 U.S.C. § 2254(b )(2). Wichman timely objected to the
Findings and Recommendation and is entitled to de nova review of the specified
findings and recommendations to which he objects. 28 U.S.C. § 636(b)(l). The
portions of the findings and recommendations not specifically objected to will be
reviewed for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach.,
Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). For the reasons explained, the Court
adopts Judge Ostby's Findings and Recommendation in full.
Wichman challenges his convictions and sentences in Montana's Carbon,
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Fergus, and Yellowstone counties. Judge Ostby found no grounds for granting
habeas relief regarding any of Wichman's challenged convictions or sentences.
In Carbon County, Wichman pleaded guilty to negligent vehicular assault
and was sentenced to ten years in prison on January 24, 2013. Judge Ostby found
Wichman: ( 1) failed to identify any illegality in his ten year sentence for negligent
vehicular assault; (2) failed to identify any facts supporting his allegation of
unequal treatment; and (3) was not entitled to credit for time served while he was
monitored. She recommended all his claims against Carbon County be dismissed
on the merits.
In Fergus County, on March 20, 2013, Wichman's deferred sentences for
arson and felony criminal mischief, originally imposed on November 19, 2007,
were revoked based on, among other conduct, the conduct that formed the basis of
the Carbon County charges described above. The state had filed its original
petition to revoke Wichman's deferred sentences on January 19, 2010; but
pursuant to a plea agreement, sentencing on that petition was deferred until
November 19, 2012, conditioned on Wichman's successful completion of Boot
Camp. Following the filing of numerous other petitions to revoke based on new
accumulating violations, his deferred sentences were finally revoked on March 20,
2013. He was committed to custody for eight years on each count, with the two
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sentences to run concurrently with each other and with the Carbon County
sentence. 1 Judge Ostby found that although Wichman's 2007 five-year deferred
sentences exceeded the three-year period authorized by Montana Code Annotated
§ 46-18-201(1)(a)(i), the state court retained jurisdiction for the revocation
because the petition was timely filed before Wichman discharged the legal portion
of his deferred sentences. Borgen v. Sorell, 217 P.3d 1022, 1024 (Mont. 2009)("A
petition to revoke a suspended sentence must be filed before the sentence
expires.")( emphasis added); DeShields v. State, 132 P.3d 540, 543 (Mont. 2006).
In Yellowstone County, Wichman pleaded no contest on August 27, 2013,
to criminal mischief and was sentenced to five years to run concurrent with his
Carbon County sentence. Judge Ostby found Wichman failed to identify any
illegality in his concurrent five year sentence for criminal mischief.
Wichman's objections largely repeat the same arguments made in his
original petition. He objects to Judge Ostby's findings that his claims against
Fergus County lack merit, and reasserts that the five-year deferred Fergus County
sentences were illegal because they exceeded the three years authorized by statute
'The Fergus County court sentenced Wichman with no time suspended on
March 20, 2013, but acting prose Wichman obtained an amended judgment on
July 17, 2013, to suspend three years of each term as required by Montana Code
Annotated§ 46-18-201(3)(a)(iv)(A).
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and he had discharged his deferred sentences prior to the revocation.
Wichman argues he is entitled to habeas relief under Borgen v. Sorrell. In
Borgen, the Montana Supreme Court found the legal portion ofBorgen's sentence
expired before the petition to revoke his suspended sentence was filed. 217 P.3d
1022, 1024. Unlike Borgen, the legal three-year portion of Wichman's deferred
sentences had not expired before the first petition to revoke was filed on January
19, 2010. His sentence was therefore legal. DeShields v. State, 132 P.3d 540
(Mont. 2006). As Judge Ostby found, an objection to the continuation of his
deferred sentences in November 2010 beyond the three years would merely have
resulted in different sentences. 2 Their continuation was not prejudicial and does
not represent a grievous wrong or miscarriage of justice because Wichman
violated his conditions of release and the state timely filed petitions for revocation.
Wichman also reasserts his ineffective assistance of counsel claim, arguing
that the counsel representing him in Carbon County allowed the state to use "infactual and unrelated evidence" at his sentencing and furthered no argument
regarding credit for wearing a Scram unit. To succeed on an ineffective assistance
2
Wichman's November 2007 sentences imposed a financial obligation to
pay victim restitution that would allow up to a six-year deferred sentence to be
imposed pursuant to Montana Code Annotated§ 46-18-201(1)(a)(ii), thus
suggesting Wichman's five-year deferred sentences were entirely legal. (Doc. 176 at 5-6).
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of counsel claim, a petitioner must show ( 1) that counsel's performance was
deficient, and (2) that counsel's deficient performance prejudiced the defendant.
Strickland v. Washington, 466 U.S. 668 (1984). If the petitioner makes an
insufficient showing regarding either prong of the test, the other need not be
addressed. Id. at 697. To demonstrate prejudice, the petitioner must show a
reasonable probability that, but for the counsel's deficiency, the results of the
proceeding would have been different. Id. at 694.
First, the "unrelated evidence" which Wichman refers to as a "Brady
implied agreement" is not a Brady violation. Jackson v. Brown, 513 F .3d 1057,
1071 (9th Cir. 2009), is inapposite to his claims of ineffective assistance of
counsel. Regarding evidence ofWichman's other conduct, Montana law provides
judges with the discretion to consider aggravating circumstances at sentencing,
and the totality of Wichman's criminal behavior was therefore properly
considered. Mont. Code Ann. § 46-18-101. The state court was entitled to
consider Wichman's conduct while on conditional release, and the sentencing
transcript referenced shows no unfair prejudice in his sentence with regard to the
pending charges in Yellowstone County. It would have been frivolous for his
counsel to argue that the judge could not consider the totality of Wichman's
conduct. This claim lacks merit.
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Second, although Wichman's counsel could have argued for credit for the
time Wichman was being monitored with the Scram unit, Wichman cannot show
furthering such an argument would have produced different results or that failing
to make this argument rendered his sentencing fundamentally unfair. Montana
Code Annotated § 46-18-203(7)(b ), which allows the state court to consider
elapsed time served if a deferred sentence is revoked, is inapplicable to this claim
because Wichman was on pre-trial release in Carbon County on a new and
separate charge. Even if the statute was applicable, being monitored with a Scram
unit is not equivalent to house arrest. See State v. Clark, 182 P.3d 62, 65-66
(Mont. 2008). No state or Federal law required the state court to credit
Wichman's sentence for time he spent being monitored by the Scram unit.
Because he cannot show a reasonable probability that, but for his counsel's alleged
deficiency, the results of his sentencing would have been different, Wichman
cannot show prejudice and fails to meet the second prong of the Strickland test.
There is no need to address the first prong. Wichman's claims of ineffective
assistance of counsel lack merit.
Because this Court finds no clear error in any of the remaining findings and
recommendations, this Court agrees that Wichman's petitions in each case should
be denied on the merits and dismissed.
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Wichman fails to make a substantial showing of deprivation of a
constitutional right. No reasonable jurist could conclude that these actions should
proceed on the merits. Therefore, a certificate of appealability is not warranted.
Accordingly, IT IS ORDERED that Judge Ostby's findings and
recommendations (Doc. 23) are ADOPTED IN FULL. Wichman's petitions for
writ of habeas corpus (Doc. 1) are DISMISSED WITH PREJUDICE. The Clerk
of Court shall enter by separate document in each case a judgment in Favor of
Respondents and against Wichman.
IT IS FURTHER ORDERED that a certificate ofappealability is DENIED.
+1A
DATED this]:_ day of August, 2015.
Dana L. Christensen, Chief Judge
United States District Court
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