No. 89-541
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
STATE OF MONTANA,
plaintiff and Respondent,
-vs-
MARK GORDER,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Powder River,
The Honorable Kenneth R. Wilson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Russell K. Jones, Kaiser & Douglass, Spokane,
Washington
For Respondent:
Honorable Marc Racicot, Attorney General, Helena,
Montana
Elizabeth S. Baker, Asst. Atty. General, Helena,
Montana
Cynthia K. Thornton, Powder River County Attorney,
Broadus, Montana
Submitted on Briefs: April 19, 1990
Decided: May 16, 1990
*
Justice John Conway Harrison delivered the Opinion of the Court.
Mr. Gorder appeals his conviction of conspiracy to possess
dangerous drugs with intent to sell following a jury trial in the
Sixteenth Judicial District, Powder River County, Montana. We
affirm.
We will rephrase the issue raised for review as follows: Can
defendant challenge jury instructions in a petition for post-
conviction relief when defendant failed to object to the disputed
instructions at trial?
On June 19, 1988, twenty-nine U-Haul boxes were discovered on
a rural road in Powder River County. The boxes were found to
contain approximately 778 pounds of marijuana. Law enforcement
officers eventually arrested Ronald Arnerline and his brother, Jody
Scott Amerline, in connection with possessing and abandoning the
marijuana. Ron Amerline pled guilty to possession of marijuana
with intent to distribute, and Jody Amerline pled guilty to
possession.
At trial, the prosecution contended that Mr. Gorder conspired
with Ron Amerline to transport marijuana from Tucson, Arizona to
Buffalo, New York on three occasions. Ron Amerline, a co-
conspirator, testified for the prosecution during Mr. Gorder's
trial.
Essentially, Mr. Gorder argues that the District Court erred
in instructing the jury regarding how to properly evaluate a co-
conspirator's testimony. However, Mr. Gorder concedes that he
cannot directly appeal this alleged error because the defense
failed to object to the disputed instructions at trial. See 5 46-
20-104(2), MCA. Since he cannot appeal this issue, Mr. Gorder asks
this Court to construe this appeal as a petition for post-
conviction relief.
Section 46-21-103, MCA, provides for the commencement of a
petition for post-conviction relief with this Court. Further, the
record before us substantially complies with 5 46-21-104, MCA,
which sets forth the required contents of a petition for post-
conviction relief. Therefore, in the interests of judicial
economy, we will grant defendant's request and consider this action
as a petition for post-conviction relief.
Not all allegations of error may be raised in a petition for
post-conviction relief. In pertinent part, 9 46-21-105, MCA,
states:
When a petitioner has been afforded a direct
appeal of his conviction, grounds for relief
that could reasonably have been raised on
direct appeal may not be raised in his
original or amended petition.
The purpose of the above waiver provision is to preserve the
integrity of the trial and direct appeal and to prevent abuse of
the post-conviction relief process.
In this case, defendant, through a petition for post-
conviction relief, hopes to make an end run around the procedural
default provision in 5 46-20-104, MCA. Not only did defendant run
afoul of 5 46-20-104, MCA, which requires timely objections at
trial to preserve issues for appeal, but defendant also violated
§ 46-16-401(4), MCA. That statute specifically requires counsel
to register any objections to instructions before they are
submitted to the jury.
Defendant offers no excuse for failing to object at trial.
He does not argue that during the settling of instructions he could
not reasonably have complied with the procedural requirements of
§ 46-20-104, MCA, and § 46-16-401(4), MCA. Since objections to the
instructions could reasonably have been raised at trial, those
grounds for relief could reasonably have been available for direct
appeal. To allow defendant to raise an issue in post-conviction
relief that he could reas~nablyhave preserved for direct appeal
constitutes an abuse of process.
Abuse of process occurs where an applicant
raises in post-conviction proceedings a
factual or legal contention which the
petitioner deliberately or inexcusably failed
to raise in the proceedings leading to
conviction, or having raised the contention in
the court, failed to pursue the matter on
appeal.
McKenzie v. Osborne (1981), 195 Mont. 26, 34, 640 P.2d 368, 373.
We hold that defendant's claim for post-conviction relief is barred
by 5 46-21-105, MCA.
To hold otherwise would seriously undermine the effectiveness
of the procedural default provisions. The procedural default
provisions serve an important purpose in the administration of
justice because they ensure that all possible errors in the trial
process are asserted and considered by the trial court. Thus the
procedural default provisions promote the central function of the
trial court which is to provide an accused with a fair trial.
In summary, Gorder waived his right to directly appeal the
jury instruction issue. Since he has not demonstrated that he
could not lodge his objections during trial, the waiver carries
into the post-conviction process via 5 46-21-105, MCA. Defendant's
petition for post-conviction relief is dismissed for failure to
state a claim upon which relief can be granted.
Affirmed.
\
~uskice
We concur:
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C
i Chief '~ustice
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