No. 02-499
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 5N
VICTOR ALLAN SMITH,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Respondent.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and for the County of Ravalli,
The Honorable Jeffrey H. Langton, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Victor Allen Smith, Shelby, Montana (Pro Se)
For Respondent:
Hon. Mike McGrath, Attorney General; Micheal S. Wellenstein,
Assistant Attorney General, Helena, Montana
George Corn, Ravalli County Attorney, Hamilton, Montana
Submitted on Briefs: November 26, 2002
Decided: January 17, 2003
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent. It shall be filed as a
public document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.
¶2 Victor Allan Smith appeals from the denial of his pro se
petition for postconviction relief by the Twenty-First Judicial
District Court, Ravalli County. We affirm.
¶3 We restate the issue as whether the District Court erred in
concluding Smith's petition for postconviction relief was
procedurally barred under §§ 46-21-102(1)(a) and 46-21-105(1)(a)
and (b), MCA.
¶4 Smith pled guilty to aggravated assault and judgment was
entered against him in December of 1999. He did not appeal.
Beginning in August of 2000, Smith filed numerous documents in
pursuit of postconviction and habeas corpus relief in the District
Court and this Court, as well as several appeals of District Court
matters to this Court. Smith filed his first petition for
postconviction relief in the District Court in November of 2000,
arguing that his constitutional right against double jeopardy was
violated when a 10-year weapon enhancement was added to his
sentence for aggravated assault. The District Court denied that
petition on substantive grounds in April of 2001.
2
¶5 In November of 2001, Smith filed a second petition for
postconviction relief which set forth only a double jeopardy claim.
In his supporting arguments, however, he contended he had been
denied the right to counsel on direct appeal. The District Court
denied Smith's second petition for postconviction relief as both
time-barred and procedurally barred under §§ 46-21-102(1)(a) and
46-21-105(1)(a) and (b), MCA. Smith appeals.
¶6 Section 46-21-102(1), MCA, provides that a petition for
postconviction relief may be filed at any time within one year of
the date on which the petitioner's conviction became final.
Smith's aggravated assault conviction became final when he failed
to file an appeal by February of 2000. See Rule 5(b), M.R.App.P.;
§ 46-21-102(1)(a), MCA. Smith did file his first petition for
postconviction relief in November of 2000, within one year after
his conviction became final. That petition raised only a double
jeopardy claim.
¶7 Smith's right to counsel contentions were first raised in the
arguments supporting his second petition for postconviction relief,
filed in November of 2001. We conclude the District Court was
correct that the claims now asserted are time-barred. In addition,
the District Court correctly concluded that claims first raised in
Smith's second petition for postconviction relief are procedurally
barred under § 46-21-105(1)(a) and (b), MCA, which allows only one
original petition and one amendment to that petition unless a
second petition raises grounds that could not reasonably have been
raised in the original or amended original petition.
3
¶8 Smith analogizes to State v. Adams, 2002 MT 202,
311 Mont.
202,
54 P.3d 50, in support of his contention that his right to
counsel claims are not procedurally barred. In Adams, ¶¶ 18-19, we
held that, even though the claims raised in the petition for
postconviction relief could have been raised on direct appeal, they
were not procedurally barred under § 46-21-105(2), MCA, for failure
to raise them on appeal because trial counsel may have rendered
ineffective assistance by failing to preserve a direct appeal.
¶9 Adams is readily distinguishable from the present case for
several reasons. First, unlike the present case, Adams timely
filed his petition for postconviction relief. See Adams, ¶¶ 4, 6.
Here, as discussed above, the petition before us is time-barred
under § 46-21-102(1)(a), MCA. Second, the procedural bar applied
by the district court in Adams was that contained in § 46-21-
105(2), MCA, namely, that the claims could have been raised on
direct appeal. See Adams, ¶ 10. Here, the procedural bar at issue
allows only one original petition and one amendment to that
petition. This is Smith's second petition for postconviction
relief and it is procedurally barred under § 46-21-105(1)(a) and
(b), MCA, because Smith could have raised his right to counsel
claims in his original petition.
¶10 We hold the District Court did not err in dismissing Smith's
petition for postconviction relief.
¶11 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ PATRICIA COTTER
/S/ JIM REGNIER
/S/ JAMES C. NELSON
/S/ JIM RICE
4
5
