State v. Arvidson: Limiting Direct IAC Review to “Rare Instances” and Enforcing the Oral‑Pronouncement Rule

Introduction

In State v. Arvidson, 2025 MT 200, the Montana Supreme Court addressed two recurring appellate issues arising out of a charged confrontation between a homeowner and law enforcement: (1) whether a defendant’s trial-level ineffective assistance of counsel (IAC) claims could be resolved on direct appeal when the record does not reveal trial counsel’s reasoning; and (2) whether a written judgment may expand a sentence beyond what the district court orally pronounced. The Court (Justice Rice, for a four-Justice majority) reaffirmed that—save for “rare instances” where there is “no plausible justification” for counsel’s actions—trial-level IAC claims dependent on counsel’s strategy must be pursued in postconviction relief (PCR), not on direct appeal. It further held that a brief prosecutorial misstatement of the “knowingly” mental state in closing argument was not prejudicial where the jury was correctly instructed. On sentencing, the Court enforced Montana’s oral‑pronouncement rule, remanding to conform the written judgment to the sentence announced from the bench, which the State conceded.

The case arises from a late-night standoff outside Helena in October 2021. After neighbors reported shots “whizzing” overhead, deputies and later a SWAT team responded with an armored vehicle (the “BEAR”). When officers declared an arrest and deployed two “less‑lethal” foam rounds (one striking the defendant), Bryan Neil Arvidson retreated into his house and fired seven shots toward the BEAR and officers. A jury convicted him of attempted deliberate homicide, criminal endangerment, obstructing a peace officer, and tampering with or fabricating physical evidence.

On appeal, Arvidson argued trial counsel was ineffective for: (1) not pursuing justifiable use of force (self‑defense) or (2) not seeking a lesser‑included instruction on attempted mitigated deliberate homicide (AMDH), and (3) not objecting when the prosecutor described “knowingly” as creating a “substantial risk” instead of a “high probability” the conduct would cause death. He also challenged the written judgment for increasing the effective sentence beyond the oral pronouncement and for adding unpronounced conditions. A three‑Justice concurrence/dissent (Justice Bidegaray, joined by Justices Gustafson and McKinnon) would have reached the IAC questions on direct appeal and ordered a new trial on Count I (attempted deliberate homicide).

Summary of the Opinion

• Ineffective Assistance (Issue 1):
  • Justifiable Use of Force and AMDH theories: The Court held these IAC claims are not record‑based because the appellate record does not reveal “why” trial counsel chose not to pursue these defenses or instructions. They were therefore affirmed without prejudice to PCR, where a factual record can be developed regarding counsel’s strategy and client communications (Strickland’s “deficiency” inquiry).
  • Prosecutor’s misstatement of “knowingly”: Although the prosecutor briefly misstated the mental state in closing as “substantial risk” rather than “high probability,” the Court concluded Arvidson could not demonstrate Strickland prejudice because the jury received correct oral and written instructions and the comment was fleeting.
  • Appointment of counsel for PCR: The Court directed the district court to assign counsel for PCR proceedings if Arvidson otherwise qualifies, in the “interests of justice,” under § 46‑21‑201(2), MCA.
• Sentencing Discrepancies (Issue 2):
  • The written judgment improperly ran Count IV consecutive to Count II (rather than to Count III as pronounced), thereby increasing total incarceration from 46 to 52 years and adding two conditions (no electronic device/scanner; curfew) that were not orally pronounced. Citing the oral‑pronouncement rule, the Court reversed and remanded for a second amended judgment conforming to the oral sentence; the State conceded error.

Detailed Analysis

1) Precedents and Authorities Shaping the Decision

• Strickland v. Washington, 466 U.S. 668 (1984): The controlling two‑prong IAC framework—deficient performance plus prejudice. The Court reiterated that both prongs must be proven, and failure on one ends the inquiry.
• State v. Ward, 2020 MT 36; Oliphant v. State, 2023 MT 43; Whitlow v. State, 2008 MT 140; State v. Bryson, 2024 MT 315: Montana applications of Strickland affirming de novo review for IAC and explaining the strong presumption of reasonable performance.
• State v. Secrease, 2021 MT 212; State v. Rodriguez, 2021 MT 65; State v. Sartain, 2010 MT 213; State v. White, 2001 MT 149: A defendant raising IAC on direct appeal must show the claim is record‑based. If the record is silent on counsel’s reasons, the claim is generally reserved for PCR, where evidence can be developed.
• State v. Fender, 2007 MT 268: The “rare instances” exception—direct review is appropriate only when the record shows “no plausible justification” for counsel’s conduct. The majority here found the record insufficient to conclude that no plausible justification existed.
• State v. Hendricks, 2003 MT 223: Absent record evidence of “why,” courts cannot deem the failure to assert justifiable use of force an unreasonable strategy on direct appeal.
• State v. Parrish, 2010 MT 212; State v. Sheppard, 253 Mont. 118 (1992): Counsel may, for strategic reasons, choose not to offer lesser‑included instructions (e.g., to pursue an “acquit‑or‑convict” strategy).
• State v. Nick, 2009 MT 174; State v. Dulaney, 2025 MT 67: JUOF may entail conceding purposeful/knowing conduct. Dulaney clarifies such a defense does not necessarily admit the result element, yet trial evidence may permit inferences supporting culpable mental state—counsel must weigh these risks.
• State v. Lane, 1998 MT 76: The oral pronounced sentence controls over the written judgment; the written document is evidentiary and must conform to the oral sentence.
• State v. Champagne, 2013 MT 190; State v. Heafner, 2010 MT 87: Standards for reviewing the legality of sentences of one year or more.
• State v. Johnson, 2024 MT 152: Support for appointing counsel in PCR when interests of justice so require and the defendant qualifies.

2) The Court’s Legal Reasoning

The majority’s IAC analysis pivots on the threshold “forum” question: Is the record sufficient to evaluate trial counsel’s strategy choices under Strickland’s deficiency prong? Applying Sartain/White and the Fender “rare instances” carve‑out, the majority observed that the record did not show why counsel declined to pursue (a) justifiable use of force or (b) a lesser‑included attempted mitigated deliberate homicide instruction, especially given that:

• JUOF can sometimes require conceding “purposely/knowingly,” risking the jury’s acceptance of the State’s mens rea theory in a charged law enforcement context (Nick; Dulaney).
• Counsel might reasonably avoid lesser‑included options to force an acquittal rather than invite compromise (Parrish; Sheppard).
• Trial strategy can evolve as evidence unfolds; without a record of counsel’s reasoning and client communications, Strickland’s deference to reasonable professional judgment “in the moment” cannot be overcome.

Because the appellate record was silent as to the “why” behind counsel’s choices, the Court refused to adjudicate deficiency and prejudice on direct appeal, affirming those IAC claims without prejudice to PCR. A key procedural follow‑on is the Court’s instruction to appoint counsel for PCR if the defendant qualifies—a practical assurance that the deferred claims can be fully and fairly developed.

On the misstatement of “knowingly,” the Court agreed the prosecutor’s phrase (“substantial risk that the result would occur”) misstated Montana’s definition for result‑element “knowing”—awareness of a “high probability” that conduct will cause a specific result. But because the jury was properly instructed orally and in writing, and because the misstatement was brief and not tied to an erroneous instruction or pervasive theme, the Court held that Arvidson failed to show a reasonable probability of a different outcome under Strickland.

On sentencing, the Court applied Lane: the oral pronouncement controls. The written judgment increased incarceration time by running Count IV consecutive to Count II (instead of to Count III as orally stated) and added two unpronounced conditions. The State conceded error. The Court reversed and remanded for entry of a second amended judgment mirroring the oral sentence.

3) The Concurrence/Dissent: A Competing Framework for Direct Review

Justice Bidegaray, joined by Justices Gustafson and McKinnon, would have reached the IAC merits now, invoking Fender’s “rare instances” exception. The dissent focused on internal inconsistency in the record itself:

• Defense counsel’s opening conceded that Arvidson “shoots,” asserting he believed he was firing at neighbors—not police.
• Counsel never pursued JUOF or AMDH instructions to supply a lawful pathway to acquittal or mitigation that matched that concession.
• Counsel then pivoted at closing to a mismatch theory (no shots “at the BEAR”) without having developed the alternative defenses.

In the dissent’s view, that combination leaves “no plausible justification” and warrants direct Strickland review. It would find both deficiency and prejudice: a jury instructed on JUOF or AMDH could have acquitted or convicted on a lesser count, and the uncorrected “substantial risk” misstatement further diluted the State’s burden in a mens‑rea‑driven case. The dissent would reverse Count I and remand for a new trial limited to attempted deliberate homicide, while joining the sentencing remedy.

4) Impact and Forward‑Looking Implications

• IAC on direct appeal: The majority reinforces a stringent threshold. Unless the trial record itself forecloses any plausible strategic explanation, Montana defendants should expect IAC claims predicated on counsel’s tactical choices (e.g., which defenses to present, whether to request lesser‑included instructions) to be deferred to PCR. This means contemporaneous record‑making about strategy is critical if counsel anticipates later appellate scrutiny.
• The “rare instances” standard: Arvidson’s 4–3 split signals an active debate within the Court about how narrow Fender’s exception should be. The dissent’s approach could be cited by future appellants to argue that internal inconsistencies in the trial presentation, standing alone, can defeat the “plausible justification” presumption. For now, the majority’s approach sets a high bar for direct IAC review.
• Prosecutorial closing arguments: Although the misstatement here was deemed non‑prejudicial in light of correct instructions, prosecutors should hew closely to statutory language—especially for mental states tied to result elements. Defense counsel, in turn, should object to material deviations to preserve the issue and avoid the need to rely on harmless‑error analyses.
• Oral‑pronouncement rule: District courts and clerks must ensure written judgments precisely track the oral sentence. Adding conditions or altering concurrency/consecutivity in writing is reversible error. Defense counsel should compare transcripts and written judgments and move promptly to correct discrepancies.
• Appointment of counsel in PCR: The Court’s express guidance to appoint PCR counsel when “interests of justice” require underscores Montana’s commitment to meaningful review of deferred IAC claims—particularly those hinging on trial‑counsel strategy and client communications.

Complex Concepts Simplified

• Ineffective Assistance of Counsel (IAC): A constitutional claim that defense counsel’s performance fell below an objective standard of reasonableness (deficiency) and that the errors likely affected the outcome (prejudice). Evaluated under Strickland’s two‑prong test.
• Record‑based vs. PCR IAC claims:
  • Record‑based: The trial record alone shows what counsel did and why—suitable for direct appeal.
  • PCR: When the record does not reveal counsel’s reasons (e.g., strategic choices), the claim proceeds through postconviction relief, where evidence can be collected via affidavits, testimony, or hearings.
• Justifiable Use of Force (JUOF): A defense asserting that force, even deadly force, was reasonably necessary to prevent imminent death or serious bodily harm. If supported by “some evidence,” the State must prove beyond a reasonable doubt that the use of force was not justified.
• Mitigated Deliberate Homicide (and “attempted” form): Mitigation reduces culpability when the defendant acted “under the influence of extreme mental or emotional stress for which there is reasonable explanation or excuse.” The “attempt” version applies when a defendant takes a substantial step toward causing death under those mitigating stresses. It can serve as a lesser‑included offense to attempted deliberate homicide, where the evidence supports the mitigation element.
• Mental state “knowingly”: Under Montana law, when an offense requires causing a result (e.g., death), a person acts “knowingly” if aware that it is highly probable their conduct will cause that result. “Substantial risk” is not the statutory definition for result‑element knowledge.
• Oral‑pronouncement rule: The sentence stated in open court in the defendant’s presence is the legally effective sentence; the written judgment must conform and cannot add terms or increase punishment.
• Concurrent vs. consecutive sentences:
  • Concurrent: Sentences run at the same time.
  • Consecutive: One sentence begins only after another ends; can significantly increase total time to serve.

Practice Pointers

• For defense counsel:
  • When conceding conduct in opening (e.g., firing shots), align that concession with a legally cognizable theory (JUOF, AMDH) and request corresponding jury instructions if “some evidence” supports them.
  • Object promptly to prosecutorial misstatements of statutory mental states; ensure the jury ties its deliberations to the correct legal standards in the instructions.
  • After sentencing, compare the transcript to the written judgment; move to correct any mismatch or unpronounced conditions.
  • If IAC claims are foreseeable, contemporaneously memorialize strategy rationales where ethically permissible; such records can be decisive on direct appeal or in PCR.
• For prosecutors:
  • Use precise statutory language for mental states in closing arguments—especially “knowingly” for result elements (“high probability,” not “substantial risk”).
  • Confirm the written judgment reflects the oral pronouncement and avoid proposing unpronounced conditions post hoc.
• For trial courts:
  • Announce all terms, concurrency/consecutivity, and conditions at sentencing; ensure the written judgment is a faithful transcription of the oral sentence.
  • Where self‑defense or mitigation is in play and supported by “some evidence,” consider instructing on those defenses/offenses when requested.
• For appellate counsel:
  • Evaluate whether IAC issues are record‑based. If not, advise clients to pursue PCR and request appointed counsel when eligible.
  • When a prosecutor’s misstatement is at issue, assess instruction accuracy and the prominence of the misstatement to gauge Strickland prejudice.

Conclusion

State v. Arvidson is a consequential reaffirmation of two pillars of Montana criminal appellate practice. First, it underscores that most trial‑strategy IAC claims belong in PCR unless the record unequivocally reveals “no plausible justification” for counsel’s conduct. In a 4–3 split, the Court declined to expand Fender’s narrow exception, emphasizing the need for a developed factual record on the “why” behind counsel’s choices—particularly decisions about asserting self‑defense, seeking lesser‑included instructions, or tailoring mental‑state arguments. Second, the decision robustly applies the oral‑pronouncement rule, mandating that written judgments strictly mirror the sentence the court pronounces in open court, without augmentation or added conditions.

While the majority treated the prosecutor’s mental‑state misstatement as harmless in light of correct instructions, the concurring/dissenting opinion highlights the continuing tension over when appellate courts should intervene on direct review of IAC—especially where trial presentations appear internally inconsistent. Practitioners should anticipate that, after Arvidson, Montana’s Supreme Court will continue to reserve strategy‑based IAC inquiries for PCR, but defendants will have meaningful access to counsel there to develop and litigate those claims. On sentencing, Arvidson serves as a clear directive to prevent and promptly correct any divergence between the bench’s pronouncement and the written judgment.