08/27/2024
DA 23-0077
Case Number: DA 23-0077
IN THE SUPREME COURT OF THE STATE OF MONTANA
2024 MT 192N
JOSEPH WAYNE MARSH,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Twenty-Second Judicial District,
In and For the County of Stillwater, Cause No. DV 22-34
Honorable Matthew J. Wald, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Joseph Wayne Marsh, Self-represented, Deer Lodge, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Brad Fjeldheim,
Assistant Attorney General, Helena, Montana
Nancy Rohde, Stillwater County Attorney, Columbus, Montana
Submitted on Briefs: October 25, 2023
Decided: August 27, 2024
Filed:
ir,-6L-.--if
__________________________________________
Clerk
Justice Dirk Sandefur delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, we decide this case by memorandum opinion. It shall not be cited and does not
serve as precedent. The case title, cause number, and disposition shall be included in our
quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 Joseph Wayne Marsh appeals pro se the December 2022 judgment of the Montana
Twenty-Second Judicial District Court, Stillwater County, denying his petition for
postconviction relief from his 2017 conviction on the offense of felony sexual abuse of
children, and the January 2023 denial of his M. R. Civ. P. 59(e) motion to amend the court’s
judgment. We affirm.
¶3 In December 2017, Marsh pled guilty to felony sexual abuse of children based on
the download and possession of, as well as use of peer-to-peer file-sharing software for, an
extremely large amount of child pornography. The court later sentenced him to a 40-year
prison term with no time suspended. Through counsel, Marsh appealed his conviction on
the grounds that his sentence was illegal and his counsel constitutionally ineffective. We
affirmed his conviction and sentence in State v. Marsh, 2021 MT 23N,
403 Mont. 544,
479
P.3d 526. There, Marsh argued that his sentence “rested on an improper understanding of
the effect of statutory changes, implicating [his] due process rights,”1 and that his counsel
1
In response to defense recommendation of a 20-year DOC commitment with 15 years suspended
for appropriate placement at a treatment facility, the court “expressed concern regarding” the
effects of §§ 46-18-201(3)(a)(iv)(A), -208, and 46-23-1011(6), MCA, and “that its goal of ensuring
long-term supervision might be ‘short-circuited’ by these statutory provisions unless the court
imposed a sentence mandating prison time.” Marsh, ¶¶ 5-8.
2
failed to specifically argue for application of certain statutory nonviolent offender
mitigating factors. Marsh, ¶ 10. We held that Marsh’s sentence was legal because within
the 100-year maximum for the subject felony offense, and declined to exercise plain error
review of his unpreserved claim that the court “reli[ed] on an erroneous interpretation of
sentencing laws in effect at the time” because:
Marsh’s extensive collection of child pornography, admitted use of
peer-to-peer file sharing, prior court martial for a similar offense, compulsive
behavior, and moderate risk Level II designation under the psychosexual
evaluation all support the District Court’s conclusion that community safety
required long-term supervision over Marsh. The sentencing court
determined that, under the current statuary scheme, such a result was best
achieved by a lengthy prison sentence, a decision within the court’s
discretion. The resulting sentence—well-below the statutory maximum—
does not represent a manifest miscarriage of justice, an unsettled question of
fundamental fairness, or an undermining of judicial integrity.
Marsh, ¶¶ 12-13. We further held that Marsh’s counsel effectively advocated for “an
alternative to a prison sentence” and, given the court’s stated sentencing rationale, there
was no indication that Marsh would not have received a prison sentence if counsel had
explicitly addressed each nonviolent offender statutory mitigating factor. Marsh, ¶¶ 16-17.
¶4 In April 2022, Marsh filed a pro se district court petition for postconviction relief
on the asserted grounds that: (1) the sentencing court illegally sentenced him based on
“misinformation” regarding the sentencing provisions at issue on direct appeal in violation
of his due process rights; (2) the prosecutor committed prosecutorial misconduct by
providing the court “misinformation” regarding the same sentencing statutes; (3) his
sentencing counsel was constitutionally ineffective for similarly providing the court
“misinformation” and for failing to object to its reliance thereon, and for failing to object
3
to the alleged prosecutorial misconduct; and (4) his appellate counsel was constitutionally
ineffective for failing to raise the issues of prosecutorial misconduct and ineffective
assistance of sentencing counsel on appeal.
¶5 In December 2022, the District Court summarily denied Marsh’s petition without
State response or hearing pursuant to § 46-21-201(1)(a), MCA (authorizing discretionary
summary dismissal where “the petition and the files and records of the case conclusively
show that the petitioner is not entitled to relief”). Noting that Marsh’s claims had been
previously raised on direct appeal, the court rejected as incorrect his petition assertions that
the sentencing court misunderstood and therefore erroneously applied the sentencing
statutes previously at issue and concluded that Marsh was not entitled to postconviction
relief.
¶6 In January 2023, Marsh filed a pro se M. R. Civ. P. 59(e) motion asking the District
Court to reconsider and reverse its denial decision and “proceed[] forward with the merits”
of his petition. Marsh further asked the court to consider additional arguments regarding
the legality of his sentence, i.e., that the sentencing court failed to consider and sentence
him based on his diagnosed mental condition and that his sentence constituted cruel and
unusual punishment.2 Because Marsh raised these new arguments for the first time
2
Marsh argued specifically that the sentencing hearing testimony regarding his diagnosed
autism-spectrum disorder constituted “clear and convincing proof to a medical certainty” that he
satisfied “the requirements” of §§ 46-14-311 and -312, MCA (consideration of mental disease,
disorder, or developmental disability at sentencing), and that the sentencing court was thus
“statutorily mandated” to commit him to the custody of the Montana Department of Health and
Human Services for treatment and not authorized to impose a sentence of incarceration. This
argument contradicted his original petition assertion that he was entitled to be “re-sentenced to
significantly less custodial incarceration and significantly longer supervised release,” required to
4
post-judgment, the court declined to address them and denied his motion. Marsh timely
appeals pro se.
¶7 The issues that Marsh raises on appeal emanate exclusively from the claims he
raised for the first time in his “Rule 59(e) motion,” to wit: (1) his prison sentence was
illegal because the sentencing court failed to consider his diagnosed mental condition and
sentence him pursuant to §§ 46-14-311 and -312, MCA (consideration of mental disease,
defect, or developmental disability at sentencing), to commitment to the custody of the
Montana Department of Health and Human Services in lieu of incarceration; (2) sentencing
and appellate counsel were constitutionally ineffective for failing to argue that
§§ 46-14-311 and -312, MCA, applied; (3) he is entitled to plain error review of his new
claim regarding the legality of his sentence because the resulting 40-year prison sentence
constituted cruel and unusual punishment; and (4) he is entitled to amend his PCR petition
and argue the merits of his new assertions of error at district court. The State answers that
all of Marsh’s claims are unsupported or procedurally barred.
¶8 A person convicted “of an offense in a court of record who has no adequate remedy
of appeal and who claims” that his conviction occurred in violation of the constitution of
the United States, State of Montana, or Montana law may file a verified petition “to vacate[]
[or] set aside” the conviction. Sections 46-21-101(1) and -103, MCA. However, the
petitioner has the burden of showing the asserted illegality by a preponderance of the
evidence under the applicable law. Heath v. State, 2009 MT 7, ¶ 16,
348 Mont. 361, 202
complete Phase I sex offender treatment “in prison,” and then be “immediate[ly] release[d]” to
complete Phase II in-community.
5
P.3d 118; Ellenburg v. Chase,
2004 MT 66, ¶ 12,
320 Mont. 315,
87 P.3d 473; State v.
Cobell,
2004 MT 46, ¶ 12,
320 Mont. 122,
86 P.3d 20. “A district court may dismiss a
petition for postconviction relief as a matter of law, and we review a court’s conclusions
of law for correctness.” Herman v. State,
2006 MT 7, ¶ 13,
330 Mont. 267,
127 P.3d 422;
Whitlow v. State,
2008 MT 140, ¶ 9,
343 Mont. 90,
183 P.3d 861. Whether the lower court
correctly dismissed a postconviction IAC claim presents a mixed question of law and fact
reviewed de novo. Whitlow, ¶ 9; State v. Turner,
2000 MT 270, ¶ 47,
302 Mont. 69,
12
P.3d 934.
¶9 First, any claim or related assertions that the sentencing court relied on or any
counsel provided, argued, or failed to object to “misinformation” regarding the statutes
previously at issue on direct appeal, supra Opinion, ¶ 3 n.1, were raised by Marsh’s
appellate counsel and considered by this Court in Marsh, ¶¶ 5-8 and 10-17, and are thus
procedurally barred here.3 See § 46-21-105(2), MCA (“[w]hen a petitioner has been
afforded the opportunity for a direct appeal of the petitioner’s conviction, grounds for relief
that were or could reasonably have been raised on direct appeal may not be raised,
considered, or decided in a [postconviction] proceeding”). Accordingly, Marsh was not
entitled to postconviction relief for any of the reasons asserted in his December 2022
petition.
3
Likewise Marsh’s petition assertion of prosecutorial misconduct, ineffective assistance of
sentencing counsel for failure to object thereto, and ineffective assistance of appellate counsel for
failure to raise on appeal, which the State correctly notes Marsh has abandoned here.
6
¶10 Second, Marsh is not entitled to plain error review of his new claims regarding the
legality of his sentence. As a narrow exception to the general rule, we may, in our
discretion, review an issue raised for the first time on appeal when deemed necessary to
correct plain error. State v. Akers, 2017 MT 311, ¶ 10,
389 Mont. 531,
408 P.3d 142. Plain
error is a doctrinal exception to the general rule that a record-based assertion of error not
contemporaneously raised before the trial court, and thereby preserved for appeal, is
waived and thus not subject to review on direct appeal. See State v. Trujillo,
2020 MT 128,
¶ 6,
400 Mont. 124,
464 P.3d 72; Akers, ¶ 10. It is not a cognizable freestanding claim for
relief on collateral review of a prior criminal conviction for which the petitioner was
previously afforded the remedy of direct appeal. See §§ 46-21-101(1) and -105(2), MCA.
¶11 We previously held on direct appeal that Marsh’s sentence was legal, within
statutory parameters, and did not “represent a manifest miscarriage of justice, an unsettled
question of fundamental fairness, or an undermining of judicial integrity.” Marsh,
¶¶ 12-14. See also Basto v. State,
2004 MT 257, ¶¶ 14-17,
323 Mont. 80,
97 P.3d 1113 (“a
sentence within the maximum statutory guidelines does not violate the Eighth Amendment
prohibition against cruel and unusual punishment”). Marsh is thus procedurally barred
from challenging the legality of his sentence again here. See § 46-21-105(2), MCA; State
v. Osborne,
2005 MT 264, ¶¶ 14 and 19-20,
329 Mont. 95,
124 P.3d 1085 (we consistently
apply the § 46-21-105(2) “statutory bar in order to prevent the abuse of post-conviction
relief by criminal defendants who would substitute those proceedings for direct appeal”—
citing Basto, ¶ 15). Moreover, contrary to Marsh’s assertions, the sentencing court heard
7
extensive testimony regarding his diagnosed mental condition and considered it at length.
See Marsh, ¶¶ 4 and 13 (discussing sentencing hearing testimony of evaluating clinical
psychologist, clinical social worker, probation officer, and Marsh’s friends and family
regarding his autism-spectrum disorder and noting that Marsh’s autism-attributed
“compulsive behavior[s]” considered in court’s sentencing rationale). Marsh is not entitled
to plain error review.
¶12 Third, Marsh has not demonstrated that his sentencing counsel was constitutionally
ineffective for failing to argue that §§ 46-14-311 and -312, MCA, applied. Under the Sixth
and Fourteenth Amendments to the United States Constitution and Article II, Section 24,
of the Montana Constitution, criminal defendants have a fundamental right to effective
assistance of counsel at all critical stages of criminal proceedings. Whitlow, ¶¶ 10-11
(citing Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052 (1984)). The performance
of counsel was constitutionally ineffective only if both deficient and prejudicial. State v.
Herrman,
2003 MT 149, ¶ 17,
316 Mont. 198,
70 P.3d 738. This IAC claim is substantively
equivalent to Marsh’s argument on direct appeal that his counsel was constitutionally
ineffective for failing to specifically argue applicability of statutory mitigating factors
pertinent to nonviolent offenders. See Marsh, ¶¶ 15-17. Marsh’s diagnosed
autism-spectrum disorder was likewise front and center at sentencing. See Marsh, ¶¶ 4 and
13, supra. However, no defense or State’s witness testified that Marsh’s autism rendered
him incapable of appreciating the criminality of his conduct or conforming it to the law.4
4
See § 46-14-311(1), MCA (providing that “[w]henever a defendant is convicted on . . . a plea of
guilty . . . and claims . . . at the time of any change of plea by the defendant that at the time of the
8
In fact, the clinical social worker, clinical psychologist, and Marsh himself testified to the
contrary.5 Any assertion or argument that Marsh should be committed to the custody of
DPHHS in lieu of incarceration would thus have been wholly unsupported by the evidence
and without merit. Instead, as we stated on direct appeal, Marsh’s counsel “repeatedly
pushed for an alternative to a prison sentence” and counsel’s conduct thus did not
“deviat[e] from the broad range of reasonable professional assistance.” See Marsh,
¶¶ 4 and 16. As with his prior IAC claim, Marsh has not demonstrated that the outcome
would have been different if counsel had argued that §§ 46-14-311 and -312, MCA, applied
commission of the offense . . . [he] was suffering from a mental disease or disorder or
developmental disability that rendered [him] unable to appreciate the criminality of [his] behavior
or to conform [his] behavior to the requirements of law, the sentencing court shall consider any
relevant evidence presented at the trial and may also consider the results of the presentence
investigation”—emphasis added); § 46-14-312(2), MCA (“[i]f the court finds that the defendant
at the time of the commission of the offense suffered from a mental disease or disorder or
developmental disability . . . , [it] shall sentence the defendant to be committed to the custody of
the director of the department of public health and human services” for placement “in an
appropriate correctional facility, mental health facility, residential facility, or developmental
disabilities facility for custody, care, and treatment”—internal statutes omitted, emphasis added).
5
When asked about Marsh’s autism and “intellectual levels,” the evaluating clinical social worker
responded that it was “obvious . . . that he had some learning difficulties, but he seemed to
understand the questions [posed during evaluation] based upon how he responded to them” and
“his demeanor.” When asked if Marsh “seem[ed] to have a grasp of the criminality of the offense”
and “why it was wrong,” the evaluator answered “yes” to both. When asked whether a person,
like Marsh, who had been previously convicted and imprisoned on a similar offense, but who had
not undergone formal court-ordered sex offender treatment, would have trouble “grasp[ing]
that . . . there’s something wrong with what he did,” the evaluating clinical psychologist answered
that “even at the time” he examined Marsh, “he would have had some recognition that what he
had done was inappropriate,” but not “the more complete understanding that a person gains after
they have participated in sex offender treatment.” Marsh similarly acknowledged and expressed
remorse that his “decision to view child pornography . . . has life-long devasting effects on
these children[,] children’s lives[,] and the lives of their family, too,” and that, “by viewing this
illegal material,” he “contributed [to] and encouraged the continued abuse of these innocent
children.”
9
to preclude a sentence of incarceration. As we previously stated, the sentencing court “was
quite clear that, despite the testimony on Marsh’s behalf, [its] primary concern was the
element of public safety, which the [court] deemed sufficiently protected only by a prison
sentence.” Marsh, ¶ 17 (emphasis added). Marsh cannot show prejudice resulting from
counsel’s conduct and therefore his IAC claim fails.6
¶13 Finally, Marsh asks this Court to excuse any procedural defaults and permit him to
amend his original PCR petition and have his claims regarding §§ 46-14-311 and -312,
MCA, reviewed on the merits. Section 46-21-105, MCA, expressly provides for
amendment of an original PCR petition. However, nothing in § 46-21-105, MCA,
authorizes amendment of an original PCR petition after the district court has properly
denied the originally-asserted claims for relief, thereby allowing the petitioner to assert a
new claim for relief which reasonably could have been raised in the first instance. Compare
State v. Root, 2003 MT 28, ¶ 12,
314 Mont. 186,
64 P.3d 1035 (“[a]mended petitions are
governed by § 46-21-105(1)(a), MCA, which contemplates that a petition may be amended
during the course of an ongoing proceeding that was timely initiated”—emphasis added).
¶14 We hold that the District Court correctly dismissed Marsh’s petition for
postconviction relief. We decide this case by memorandum opinion pursuant to Section I,
Paragraph 3(c) of our Internal Operating Rules. Affirmed.
/S/ DIRK M. SANDEFUR
6
Marsh’s ineffective assistance of appellate counsel claim fails for the same reason.
10
We concur:
/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ JIM RICE
11
