09/05/2017
DA 16-0750
Case Number: DA 16-0750
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 221N
SHAWN KEVIN SMAAGE,
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-2016-684
Honorable Kathy Seeley, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Shawn Kevin Smaage (Self-Represented), Shelby, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant
Attorney General, Helena, Montana
Leo Gallagher, Lewis and Clark County Attorney, Jeff Sealey, Deputy
County Attorney, Helena, Montana
Submitted on Briefs: July 26, 2017
Decided: September 5, 2017
Filed:
__________________________________________
Clerk
Justice Michael E Wheat 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 Shawn Kevin Smaage (Smaage) appeals from the November 30, 2016 order of the
First Judicial District Court, Lewis and Clark County, denying his petition for
post-conviction relief (PCR). On August 21, 2014, Smaage pled guilty to felony driving
under the influence (DUI). Subsequently, on January 22, 2015, Smaage was sentenced as
a persistent felony offender to fifty years in Montana State Prison without eligibility of
parole until he served twenty-five years. On December 3, 2015, Smaage filed a motion to
withdraw his guilty plea. On January 5, 2016, the District Court denied Smaage’s
motion. Smaage did not appeal the District Court’s denial of his motion to withdraw
guilty plea.
¶3 On August 16, 2016, Smaage filed his PCR petition, raising numerous ineffective
assistance of counsel claims based on the same issues raised in his motion to withdraw
guilty plea. In November 2016, the District Court denied Smaage’s petition as untimely
because it was filed more than one year after his conviction became final. The court also
found that Smaage’s newly discovered evidence claim failed under § 46-21-102(2),
MCA. Smaage now appeals the District Court’s denial of his PCR petition.
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¶4 We review a district court’s denial of a petition for post-conviction relief to
determine whether the court’s findings of fact are clearly erroneous and whether its
conclusions of law are correct. Wilkes v. State, 2015 MT 243, ¶ 9, 380 Mont. 388, 355
P.3d 755. A district court may dismiss a petition for post-conviction 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.
¶5 Section 46-21-102(1), MCA, provides that a PCR petition must be filed within one
year of the date that the conviction becomes final. A conviction becomes final when the
time for appeal to the Montana Supreme Court expires. Section 46-21-102(1)(a), MCA.
Under M. R. App. P. 4(5)(b)(i), an appeal from a judgment must be brought within sixty
days after entry of the judgment. Section 46-21-102(2), MCA, provides an exception to
the one-year time limit of § 46-21-102(1), MCA:
A claim that alleges the existence of newly discovered evidence that, if
proved and viewed in light of the evidence as a whole would establish that
the petitioner did not engage in the criminal conduct for which the
petitioner was convicted, may be raised in a petition filed within 1 year of
the date on which the conviction becomes final or the date on which the
petitioner discovers, or reasonably should have discovered, the existence of
the evidence, whichever is later.
Section 46-21-102(2), MCA; see Marble v. State, 2015 MT 242, ¶ 36, 380 Mont. 366,
355 P.3d 742; Wilkes v. State, 2015 MT 243, ¶ 15, 380 Mont. 388, 355 P.3d 755.
¶6 In this case, Smaage’s sentence was imposed on January 22, 2015. Smaage had
sixty days from that date to file an appeal to this Court. He did not appeal. His time for
appeal expired in March 2015, and his conviction was then final for purposes of
§ 46-21-102(1), MCA. Therefore, pursuant to the one-year limitation period Smaage had
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until March 2016 to file his PCR petition. Thus, because Smaage did not file his PCR
petition until August 2016, the petition is time barred under § 46-21-102(1), MCA.
¶7 Smaage asserts that he is entitled to invoke the exception to the one-year time limit
because his guilty plea was induced by misinformation provided to him by his attorney.
Smaage claims he was not aware of this misinformation until he discovered new
evidence. This new evidence was the relevant DUI statute, this Court’s decision in State
v. Chase,1 and that his friend was the one driving the vehicle. Smaage asserts that his
discovery of the relevant DUI statute and our decision in Chase qualifies as “newly
discovered evidence.” Montana Code Annotated defines evidence as “the means of
ascertaining in a judicial proceeding the truth respecting a question of fact, including but
not limited to witness testimony, writings, physical objects or other things presented to
the senses.” Section 26-1-101(2), MCA. The relevant statute and case law do not qualify
as evidence and therefore cannot be considered “newly discovered evidence” for
purposes of § 46-21-102(2), MCA.
¶8 Additionally, Smaage’s “newly discovered evidence” that his friend was driving
the vehicle does not meet the timeliness standard. In his motion to withdraw guilty plea,
Smaage asserted the argument that his friend was the one who drove the vehicle on the
public byways. Smaage cannot now allege that this evidence is new because he had
knowledge of this fact as early as December 2015. Thus, Smaage’s “newly discovered
evidence” fails to meet the exception under § 46-21-102(2), MCA, because Smaage was
clearly aware of this new evidence prior to the one-year limitation period for filing a PCR
1
State v. Chase, 2006 MT 13, 331 Mont. 1, 127 P.3d 1038.
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petition. Further, none of this alleged new evidence, even if proven, would establish that
Smaage did not engage in the criminal conduct for which he pled guilty. As such, we
conclude that the District Court did not err in dismissing Smaage’s PCR petition as
untimely.
¶9 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 was correct.
¶10 Affirmed.
/S/ MICHAEL E WHEAT
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR
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