September 15 2015
DA 15-0242
Case Number: DA 15-0242
IN THE SUPREME COURT OF THE STATE OF MONTANA
2015 MT 277N
CHARLES EDWARD CLARY,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. BDV-12-0617
Honorable Julie Macek, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Charles Edward Clary, self-represented, Shelby, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss,
Assistant Attorney General, Helena, Montana
John Parker, Cascade County Attorney, Joshua A. Racki, Deputy County
Attorney, Great Falls, Montana
Submitted on Briefs: August 19, 2015
Decided: September 15, 2015
Filed:
__________________________________________
Clerk
Justice Laurie McKinnon 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 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 Charles Clary (Clary) appeals pro se from an order of the Eighth Judicial District
Court, Cascade County, dismissing the claims in his amended petition for postconviction
relief. The District Court found Clary’s claims procedurally barred because they could
have been, but were not, raised on direct appeal. We affirm.
¶3 The issue on appeal is whether the District Court properly dismissed Clary’s
amended petition for postconviction relief.
¶4 Clary was convicted of felony aggravated burglary and assault with a weapon after
he entered the home of an acquaintance and had an altercation. Clary struck Nathan
Rolfs (Rolfs) and his wife, Nichole Neuhaus (Neuhaus), with the handle of an axe or
hammer. Both Rolfs and Neuhaus sustained injuries in the altercation. Clary was
represented by a public defender pretrial but decided to waive counsel and represent
himself at trial. His public defender was present as standby counsel. The Appellate
Defender Office represented Clary in his criminal appeal. Clary’s conviction was
affirmed in State v. Clary, 2012 MT 26, 364 Mont. 53, 270 P.3d 88. We determined,
however, that Clary’s ineffective assistance of counsel claim was not record-based
stating, “Without a fully developed record of what Olson actually did to prepare Clary’s
2
case for trial, the issue cannot be resolved and we therefore decline to address it on direct
appeal.” Clary, ¶ 31.
¶5 Clary filed a pro se petition for postconviction relief on August 14, 2012. After
the State responded, Clary moved for appointment of counsel to file an amended petition
for relief. The District Court denied his request for appointment of counsel and, after
Clary moved for disposition of his Amended Petition, the court dismissed the petition
without a hearing and without ordering a response from the State.
¶6 We note here that Clary has had numerous problems with appointed counsel both
during these proceedings as well as during the underlying criminal case. Clary’s most
recent appointed counsel filed a notice not to move to amend Clary’s pro se motion as
well as a motion to withdraw stating that she was unable to find any non-frivolous or
meritorious issues and was ethically bound to refrain from filing an amended petition.
The District Court noted that Clary
has a history of requesting any counsel assigned to him to be removed and
replaced . . . . It is obvious to this Court that the Petitioner will never be
satisfied with any counsel appointed to represent him. Appointment of
counsel in a postconviction proceeding is not a matter of right, but occurs in
only limited circumstances required by the interests of justice, in the
discretion of the Court. The Court will not appoint counsel yet again for the
Petitioner, nor will the Court entertain any additional motions for counsel
filed by the Petitioner.
Clary is, therefore, self-represented in this matter.
¶7 A postconviction relief proceeding is a civil remedy established by statute.
Dillard v. State, 2006 MT 328, ¶ 13, 335 Mont. 87,153 P.3d 575. Codified at
§§ 46-21-101 to 203, MCA, this process is not a substitute for direct appeal review. It is
3
a means to provide review of only those collateral claims or grounds for relief that could
not reasonably have been raised on direct appeal. If the claim could have been raised on
direct appeal, the claim is procedurally barred. Section 46-21-105(2), MCA. A district
court may dismiss a petition as a matter of law for failure to state a claim upon which
relief can be granted if the petition and the files and records of the case conclusively
show that the petitioner is not entitled to relief. Section 46-21-201(1)(a), MCA.
¶8 When a district court dismisses a petition for post-conviction relief as a matter of
law, we review that legal conclusion for correctness. Kelly v. State, 2013 MT 21, ¶ 7,
368 Mont. 309, 300 P.3d 120.
¶9 On appeal Clary asserts several claims upon which he claims he is entitled to
relief. The District Court summarized three of those claims as:
(1) Illegal arrest. The Petitioner asserts that he was illegally arrested for
aggravated burglary and two counts of assault with a weapon because he
was also charged in a separate case as a fugitive from justice. The
Petitioner contends he was not a fugitive from justice at the time he was
arrested on suspicion of having committed aggravated burglary and two
counts of assault with a weapon. The Petitioner contends that the
charges against him should be dismissed on this basis.
(2) Structural defect resulting from assignment of judge pro tempore. The
Petitioner contends that he should be given a new trial because he was
brought before a judge pro tempore for his initial appearance. The
Petitioner contends this was an illegal act that should nullify his
conviction because a judge pro tempore may not legally read defendants
the charges against them when an arrest is made on probable cause to
believe a crime has been committed in accordance with § 46-6-311(1),
MCA.
(3) Structural defect resulting from the same judge that determined probable
cause to charge also overseeing Petitioner’s trial.
4
The Petitioner asserts a structural defect requiring a new trial occurred
when [the District Court] determined sufficient probable cause existed
to charge him with aggravated burglary and two counts of assault with a
weapon because this Court also presided over trial of those charges.
The Petitioner contends this created substantial judicial bias at his trial
because this Court had already concluded his guilt when it determined
sufficient probable cause to charge.
¶10 Clary has been afforded the opportunity for a direct appeal of his conviction and
he has availed himself of this opportunity. He did not raise these grounds for relief
during that proceeding where they could have been raised. Pursuant to § 46-21-105(2),
MCA, these claims are, therefore, statutorily barred.
¶11 The remaining claims before us cannot be considered on their merits as they have
not been preserved for review. Clary’s assertions of malicious prosecution and “judicial
mental illness” of the District Court judge in the postconviction proceedings are raised
for the first time on appeal. Clary also asserts ineffective assistance of counsel claim
which, while raised in his original postconviction relief petition, was not argued in his
amended petition. The statement in Clary’s amended petition that he “reserves all rights”
to his ineffective assistance claims is insufficient to plead a claim for postconviction
relief. Section 46-21-104(1)(c). Just like an amended complaint, an amended petition
supersedes the prior petition. Ben Kress Nursery Co. v. Oregon Nursery Co., 45 Mont.
494, 496, 124 P. 475 (1912) (“By filing the amended complaint, the original complaint
was superseded and became functus officio.”). These additional claims were never
considered by the District Court. A postconviction claim that is not raised in an original
or amended original petition cannot be raised for the first time on appeal. Section
5
46-21-105(1)(a), MCA, Sanders v. State, 2004 MT 374, ¶ 16, 325 Mont. 59,103 P.3d
1053.
¶12 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, the case presents a question controlled by settled law or by the clear
application of applicable standards of review. The District Court’s interpretation and
application of the law were correct. The court properly dismissed Clary’s postconviction
claims because they were procedurally barred and there existed no relief that the District
Court could lawfully grant. We also must decline to review Clary’s new arguments or
legal theories for the first time on appeal.
¶13 Affirmed.
/S/ LAURIE McKINNON
We concur:
/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
6