May 29 2012
DA 11-0587
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 117N
SHAWN HOWARD WELLER,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. CDV-2009-509
Honorable Kathy Seeley, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Shawn Howard Weller, self-represented; Helena, Montana
For Appellee:
Steve Bullock, Montana Attorney General; Mardell Ployhar, Assistant
Attorney General; Helena, Montana
Leo Gallagher, Lewis and Clark County Attorney;
Michael T. Menahan, Deputy County Attorney; Helena, Montana
Submitted on Briefs: May 9, 2012
Decided: May 29, 2012
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules,
this case is decided by memorandum opinion and shall not be cited and does not serve as
precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly
list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 Shawn Howard Weller appeals from the District Court’s denial of his petition for
postconviction relief. We affirm.
¶3 After a jury trial in the District Court, Weller was convicted of driving under the
influence, in violation of § 61-8-401, MCA. He appealed to this Court, and we affirmed his
conviction. State v. Weller, 2009 MT 168,
350 Mont. 485,
208 P.3d 834.
¶4 In June of 2009, Weller filed a petition for postconviction relief, arguing that the jury was
improperly instructed on reasonable doubt, and that both his trial counsel and appellate counsel
had rendered ineffective assistance. The District Court rejected Weller’s claims and denied his
petition on August 4, 2009. Weller filed a variety of pleadings thereafter, but he did not appeal
from the District Court’s order.
¶5 On July 12, 2011, Weller filed what he denominated as an amended petition for
postconviction relief. Weller again alleged claims of ineffective assistance by his trial counsel
and appellate counsel, and also offered a new claim that the prosecutor “forgot to enter any
evidence into the trial. To perserve [sic] a jury guilty verdict the State and court ‘illegally
altered’ the court transcripts.” (Emphasis omitted.) The District Court dismissed Weller’s
amended petition, reasoning that “the post-conviction relief procedures do not contemplate the
filing of an amended petition after issuance of the Court’s decision on the original petition. If
Weller was dissatisfied with the Court’s decision, his proper remedy was appeal.”
2
¶6 On appeal, Weller argues that he submitted his amended petition in October 2009, but
that the Clerk of the District Court failed to file it, and that he ultimately refiled the amended
petition almost two years later, in July 2011. However, filing an amended petition in October
2009 would also have been untimely, as the District Court dismissed Weller’s original petition in
August 2009. While it may still have been possible for Weller to timely file a “second or
subsequent petition” under § 46-21-105(1)(b), MCA, such petitions “must also demonstrate good
cause why its claims were not asserted in the original petition.” State v. Root, 2003 MT 28, ¶ 16,
314 Mont. 186,
64 P.3d 1035. Weller made no such showing. Weller argues that he attempted
to raise his trial issues on appeal, but that his appellate counsel refused. However, the alleged
failures of Weller’s appellate counsel were raised in Weller’s first postconviction petition,
addressed by the District Court, and denied. Weller did not challenge the District Court’s ruling
by appealing to this Court.
¶7 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our
Internal Operating Rules, which provides for noncitable memorandum opinions. The District
Court’s findings of fact are supported by substantial evidence and the legal issues are controlled
by settled Montana law, which the District Court correctly interpreted. Weller’s claims are
procedurally barred.
¶8 Affirmed.
/S/ JIM RICE
We concur:
/S/ MIKE McGRATH
3
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
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