- 04/13/2021
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 21-0152
DA 21-0152
JACOB SMITH,
Petitioner and Appellant,
v.
ORDER
STATE OF MONTANA,
e.)
Respondent and Appellee. APR 1 3 2021
Bowen Greenwood
Clerk of Supreme Court
r.iate of Montana
Representing himself, Jacob Smith has filed a Petition for an Out-of-Time Appeal,
with attachments. Smith seeks to appeal a February 4, 2019 Memorandum and Order
Denying Petition for Post-Conviction Relief, issued by the Second Judicial District Court,
Silver Bow County. M. R. App. P. 4(6) allows this Court to grant an out-of-time appeal
-[i]n the infrequent harsh case and under extraordinary circumstances amounting to a gross
miscarriage ofjustice[.]"
Smith seeks an appeal after a two-year delay. He offers that after he received the
District Court's Order, he filed a 60(b) motion,"which extended any Appeal deadline for
60 days when the [C]ourt fails to rule on the motion." Following those sixty days, Smith
states that he filed "an Amended Petition for Postconviction Relief and motion for leave,"
and argues he "has a statutory right to amend his Petition one time." Smith adds that "the
[c]ourt failed to ever rule on the motion for leave or the amended petition." In his instant
Petition, Smith raises claims of his fitness to proceed, the lack of material evidence,
ineffective assistance of counsel, actual innocence, and newly discovered evidence
concerning two 2014 urine-analysis results for drugs.
We have previously addressed this claim. In 2018, this Court denied Smith's
petition for an out-of-time appeal from this sentence upon revocation, imposed in 2016.
State v. Smith, No. DA 18-0176, Order (Mont. Apr. 17, 2018)(Smith). At that time, we
stated that Smith had not provided any reason for his delay in seeking an appeal. Further,
we pointed out:
However, not all of Smith's attachments support his claim that his drug tests
were negative. A Montana Probation and Parole Officer stated that Smith
tested positive on September 24, 2014, for amphetamine, as indicated in an
attached testing report. Further, during Smith's appearance at a dispositional
hearing on the revocation petition, he admitted to violating his probation by
using or possessing illegal drugs, as noted by the District Court's order:
Specifically, he admitted that he used or possessed
methamphetamine, a Schedule II dangerous drug, on or about
September 24, 2014, and that he again used or possessed
methamphetamine on or about October 1, 2014. The [c]ourt
found that the Defendant was aware of his rights, and of the
nature and consequences of revocation proceedings. The
[c]ourt found that Defendant was competent, and that his
admissions were made knowingly and voluntarily.
Upon these admissions, the court revoked Smith's ten-year suspended
sentence for felony criminal possession of dangerous drugs with intent to
distribute, and imposed a five-year commitment to the Department of
Corrections.
Smith, at 1-2.
While Smith provides reasons for the two-year delay on this occasion, his reasons
do not withstand scrutiny. "To the extent that they are applicable and are not inconsistent
with this chapter, the rules of procedure governing civil proceedings apply to the
proceeding." Section 46-21-201(1)(c), MCA. Smith states that he filed a motion, pursuant
to M.R.Civ. P. 60(b), after the District Court issued its decision. This Court has previously
explained that several rules of civil procedure do not apply to postconviction proceedings.
"[U]nlike civil complaints,the postconviction statutes are demanding in their
pleading requirements." We pointed to § 46-21-104(1), MCA, which
requires, among other things, that a petition for postconviction relief"clearly
set forth the alleged . . . violations" and include attachments establishing
identified facts supporting the grounds for relief. We also observed § 46-21-
104(2), MCA, states that a petition--unlike a civil complaint--must be
accompanied by a supporting memorandum. See Ellenburg [v. Chase],
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[2004 MT 66,] ¶ 12[, 320 Mont. 315, 87 P.3d 473]. We concluded that,
"because the testing of the sufficiency of postconviction claims is directed
by the more specific provisions ofthe postconviction statutes, the traditional
civil law standards for testing the sufficiency of claims is [sic] unavailable to
postconviction petitioners." Ellenburg, ¶ 12.
Herman v. State, 2006 MT 7, ¶ 43, 330 Mont. 267, 127 P.3d 422. We also held that the
summary judgment rule, pursuant to M. R. Civ. P. 56, does not apply to postconviction
proceedings and "that the usual civil law dismissal standards do not apply in postconviction
proceedings." Herman, ¶ 47. Rule 59 and 60 motions are inconsistent with the statutory
scheme for postconviction relief because of the existing statutes, especially §§ 46-21-104,
-105, and -201(1)(a), MCA. Herman,11 43,47.
Smith's post-judgment Amended Petition for Postconviction Relief did not extend
the time for filing an appeal. While a petition can be amended,that does not supersede the
statutory scheme for postconviction relief. The scheme contemplates that an amended
petition for postconviction relief would be filed before the District Court issued an order
denying the original petition. Here, Smith filed a motion for leave to file an amended
petition after the District Court had already denied his petition for postconviction relief.
The District Court was not required to set a deadline for the filing of an amended petition.
Pursuant to § 46-21-105(1)(b), MCA,the District Court is not required to consider a second
or subsequent petition "unless the second or subsequent petition raises grounds for relief
that could not reasonably have been raised in the original or an amended original petition."
The District Court rejected Smith's contention that he had recently acquired newly
discovered evidence.' In its Order denying Smith's petition, the District Court stated that
"Petitioner [Smith] knew of the State crime lab report in September of 2016[.]" Upon
The purpose of § 46-21-105, MCA,is for a petitioner to present all claims in a petition, and "to
eliminate the unnecessary burden placed upon the courts by repetitious or specious petitions."
Section 46-21-105, MCA (citing Uniform Post-Conviction Procedural Act, § 8, Comm'n
Comments).
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review, we conclude that Smith has not demonstrated extraordinary circumstances for an
out-of-time appeal. Therefore,
IT IS ORDERED that Smith's Petition for an Out-of-Time Appeal is DENIED and
DISMISSED.
The Clerk is directed to provide a copy of this Order to counsel of record and to
Jacob Smith personally.
DATED this 13 day of April, 2021.
Chief Justice
•
ce-
Justices
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