June 2 2015
DA 14-0184
Case Number: DA 14-0184
IN THE SUPREME COURT OF THE STATE OF MONTANA
2015 MT 156N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
RAYMOND CARPENTER, JR.
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC-12-120
Honorable G. Todd Baugh, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Raymond Carpenter, Jr., self-represented, Shelby, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
Attorney General Helena, Montana
Scott Twito, Yellowstone County Attorney, Julie Pierce, Deputy County
Attorney, Billings, Montana
Submitted on Briefs: May 6, 2015
Decided: June 2, 2015
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by unpublished opinion and shall not be cited and does not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 Raymond Carpenter, Jr. (Carpenter) appeals from an order of the Thirteenth
Judicial District Court, Yellowstone County, denying his motion to withdraw his guilty
plea. We affirm. The dispositive issue on appeal is whether Carpenter’s motion to
withdraw his guilty plea was time-barred.
¶3 On May 21, 2012, Carpenter entered into a plea agreement with the State in which
he agreed to plead guilty to tampering with witnesses and informants. The District Court
sentenced Carpenter to the Montana State Prison for a term of 10 years with 2 years
suspended. The court designated Carpenter as a Persistent Felony Offender for
sentencing under § 46-18-501 and § 46-18-502, MCA. On August 27, 2012, the court
entered its final judgment. On February 6, 2014, Carpenter filed a motion to withdraw
his guilty plea. The District Court denied Carpenter’s motion, concluding the motion was
untimely. The court noted “the Defendant is not claiming he is innocent but he does
think his sentence was excessive.”
¶4 On appeal, Carpenter does not address the court’s conclusion that his motion was
untimely. Instead, Carpenter challenges, for the first time on appeal, the constitutionality
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of the Persistent Felony Offender Statute, § 46-18-501, MCA. It is a well settled
principle of law that the “appellant carries the burden of establishing error by the trial
court.” State v. Carter, 285 Mont. 449, 461,
948 P.2d 1173, 1180 (1997); accord Small v.
Good,
284 Mont. 159, 163,
943 P.2d 1258, 1260 (1997). It is also “well established that
we do not consider new arguments or legal theories for the first time on appeal.”
Pilgeram v. Greenpoint Mortg. Funding, Inc.,
2013 MT 354, ¶ 20,
373 Mont. 1,
313 P.3d
839.
¶5 Section 46-16-105(2), MCA, limits the time that a court may permit withdrawal of
a guilty plea to “within 1 year after judgment becomes final,” unless a “claim of
innocence is supported by evidence of a fundamental miscarriage of justice . . . .” For
purposes of § 46-16-105(2), MCA, a judgment becomes final “when the time for appeal
to the Montana supreme court expires[.]” Section 46-16-105(2)(a), MCA. In a criminal
case, an appeal to this Court must be made within 60 days of entry of the final judgment.
M. R. App. P. 4(5)(b).
¶6 Carpenter did not allege a claim of innocence before the District Court, nor does
he attempt to raise such a claim on appeal. Therefore, pursuant to § 46-16-105(2), MCA,
Carpenter had until October 26, 2013, to file a motion to withdraw his plea. Accordingly,
the District Court did not err by concluding the motion was time-barred.
¶7 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for unpublished opinions. In the opinion of
the Court, the case presents a question controlled by settled law.
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¶8 Affirmed.
/S/ JIM RICE
We concur:
/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
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