State v. Passmore

                                                                                             07/20/2021


                                          DA 20-0118
                                                                                        Case Number: DA 20-0118

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2021 MT 184N



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

TERENCE R. PASSMORE,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Sixth Judicial District,
                       In and For the County of Park, Cause No. DC 06-60
                       Honorable Brenda R. Gilbert, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Terence R. Passmore, Self-represented, Deer Lodge, Montana

                For Appellee:

                       Austin Knudsen, Montana Attorney General, C. Mark Fowler, Assistant
                       Attorney General, Helena, Montana

                       Kendra Lassiter, Park County Attorney, Livingston, Montana



                                                   Submitted on Briefs: June 30, 2021

                                                              Decided: July 20, 2021


Filed:

                                 cir-641.—if
                       __________________________________________
                                         Clerk
Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1     Defendant and Appellant Terence R. Passmore (Passmore) appeals from the Order

Denying Motion to Amend Judgment issued January 21, 2020, by the Sixth Judicial District

Court, Park County. On December 16, 2019, nearly 10 years after this Court affirmed his

conviction and over five years after this Court denied his first petition for postconviction

relief (PCR), Passmore filed a motion to amend judgment seeking to be relieved of

completing Phase 2 of his Sex Offender Treatment at the Montana State Prison—instead

seeking to complete this phase of treatment in the Missoula community. The District Court

held, pursuant to § 46-18-116(2) and (3), MCA, it had no authority to alter or amend a

criminal judgment as none of the statutory conditions permitting such—the judgment

conflicting with oral pronouncement with request made within 120 days of filing the

written judgment, the sentence being factually erroneous, postconviction relief having been

properly sought, or the court having been appropriately instructed by the appellate court—

existed. We agree with the District Court. Further, Passmore’s motion to amend is nothing

more than a successive PCR petition—styled as a motion—collaterally attacking his

sentence. His motion to amend his judgment is time-barred under § 46-21-102, MCA, by

several years. Finally, it is precluded by § 46-21-105, MCA, which prohibits PCR as to

issues raised, or which reasonably could have been raised, in prior proceedings. As noted

by the District Court, Passmore had opportunity to raise the claim he now asserts both on

appeal and in conjunction with his first PCR petition and failed to do so. We affirm.




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¶2     We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. It shall not be cited

and does not serve as precedent. 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. 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.


                                                  /S/ INGRID GUSTAFSON


We concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
/S/ JIM RICE




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