NO. 93-178
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
STATE OF MONTANA, ir ._-ai,
$
Plaintiff and Respondent, '
v.
MARK EMERSON PECK, a/k/a MARK LEE,
Defendant and Appellant.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Sliver Bow,
The Honorable Mark P. Sullivan, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Mark Emerson Peck, Pro Se, Deer Lodge, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Cregg W. Coughlin, Assistant Attorney
General, Helena, Montana
Robert M. McCarthy, Silver Bow County
Attorney, Brad Newman, Deputy County
Attorney, Butte, Montana
Submitted on Briefs: August 19, 1993
Decided: December 22, 1993
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Defendant/Appellant, Mark Emerson Peck, appeals pro se from an
order of the Second Judicial District Court, Silver Bow County,
dismissing his petition for post-conviction relief on the grounds
that he failed to state a claim for relief, and denying his motion
for appointment of counsel for a hearing on the petition.
We affirm.
1. Did the District Court err when it denied appellant's
petition for post-conviction relief and assistance of counsel for
a hearing on the petition, pursuant to § 46-21-201(l) and (2), MCA?
2. Did appellant's sentence and condition of parole
ineligibility violate the Eighth Amendment to the United States
Constitution prohibiting cruel and unusual punishment?
On November 21, 1991, a deputy county attorney of Silver Bow
County charged appellant by information with attempted burglary and
burglary. On January 9, 1992, appellant entered a plea agreement
in which he pled guilty to the count of attempted burglary. In
exchange, the State agreed to dismiss the burglary count, abandon
pursuit of a persistent felony offender designation, and recommend
a five-year sentence to run concurrently with any sentence imposed
upon revocation of his suspended sentence on a separate charge.
The District Court accepted the plea agreement pursuant to
5 46-12-211, MCA. Sentencing was set for February 5, 1992, but
appellant failed to appear at the hearing. On June 16, 1992,
authorities apprehended him. On June 25, 1992, at his rescheduled
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sentencing hearing, appellant moved the District Court to withdraw
his guilty plea on the grounds that "his best interests would be
served" because he believed he would be facing additional charges.
The District Court denied his motion to withdraw his guilty plea,
sentenced him to ten years at the Montana State Prison, and after
stating specific reasons, ordered him ineligible for parole or
participation in a supervised release program.
The record reveals no evidence that appellant attempted to
perfect an appeal within 60 days of the judgment of June 25, 1992.
Rule 5(b), M.R.App..P. On January 19, 1993, appellant filed in the
District Court both a petition for post-conviction relief and a
motion for appointment of counsel for a hearing on the petition.
In his petition, appellant asserted that the court's designation of
him as ineligible for parole was cruel and unusual punishment in
violation of the Eighth Amendment to the United States Constitution
because the sentence was disproportionate to the offense charged.
Additionally, appellant asserted that he had insufficient funds
with which to hire an attorney regarding the petition. On
February 8, 1993, the State filed a brief in opposition to
appellant's petition for post-conviction relief. On March 1, 1993,
pursuant to 5 46-21-201(l) and (2), MCA, the District Court
dismissed the petition and denied appellant's motion for
appointment of counsel because a hearing on the petition was not
required. On March 15, 1993, appellant filed an appeal with this
Court.
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Did the District Court err when it denied appellant's petition
for post-conviction relief and assistance of counsel for a hearing
on the petition, pursuant to 5 46-21-201(l) and (2), MCA?
Section 46-21-201, MCA, in part, governs the court's actions
in proceedings on petitions for post-conviction relief and provides
as follows:
Unless the petition and the files and records of the case
conclusively show that the petitioner is not entitled to
relief, the court shall cause notice of the petition to
be served upon the county attorney in the county in which
the conviction took place and upon the attorney general
and order them to file a responsive pleading to the
petition. Following its review of the responsive
pleading, the court may dismiss the petition as a matter
of law for failure to state a claim for relief or it may
grant a prompt hearing on the petition, determine the
issue, and make findings of fact and conclusions with
respect to the petition.
A petitioner's burden, when requesting post-conviction relief,
is to show by a preponderance of evidence that the facts justify
relief. Yother v. State (1979), 182 Mont. 351, 355, 597 P.2d 79,
82; Matter of Jones (1978), 176 Mont. 412, 415, 578 P.2d 1150,
1152. The District Court concluded that appellant had not met this
burden when he failed to show by a preponderance of evidence that
the imposed sentencing condition justified relief. The court based
its decision upon its review of the petition, the State's brief in
opposition, appellant's reply brief, and the entire record. The
court then cited § 46-18-202(2), MCA, authorizing designation of
appellant as ineligible for parole, and in support of the
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sentencing condition, noted appellant's extensive criminal history
and his previous failure to comply with the law while on supervised
release. The reasons set forth by the District Court are
well-reasoned and supported by the record. Pursuant to
5 46-21-201(l), MCA, the court properly denied the petition for
post-conviction relief because it did not state a claim for relief.
The court also properly denied appellant's motion for
assistance of counsel for a hearing on the petition for
post-conviction relief. Section 46-21-201(2), MCA, provides that:
If a hearing is required or the interests of justice
require, the court shall appoint counsel for a petitioner
who qualifies for the appointment of counsel under
Title 46, chapter 8, part 1.
The court declined to appoint counsel for a hearing on appellant's
petition because, after review of the petition, the briefs, and the
record, it determined that a hearing was not required. The court
properly denied appointment of counsel for a hearing on the
petition for post-conviction relief.
II.
Did appellant's sentence and condition of parole ineligibility
violate the Eighth Amendment to the United States Constitution
prohibiting cruel and unusual punishment?
In State v. Austad (1982), 197 Mont. 70, 100, 641 P.2d 1373,
1389, we held that a sentence which falls within the maximum
statutory guideline does not violate the Eighth Amendment
prohibition against cruel and unusual punishment (citing Matter of
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Jones (1978), 176 Mont. 412, 420, 578 P.2d 1150, 1154), and review
properly lies with the Sentence Review Division. (citing State v.
Mets. (1979), 184 Mont. 533, 537, 604 P.2d 102, 104). See&o State
v. Valcourt (1992),. 254 Mont. 174, 835 P.2d 753; State v. Watson
(1984) t 211 Mont. 401, 423-24, 686 P.2d 879, 890-91. At
sentencing, the District Court determined that appellant entered
his plea voluntarily and knowingly. The court then sentenced
appellant to ten years at the Montana State Prison and imposed the
condition that he be ineligible for,parole or participation in a
supervised release program.
The court properly sentenced appellant. The statutory maximum
penalty for attempted burglary is imprisonment for 20 years or a
$50,000 fine, or both. Sections 45-6-204 and 45-4-103(3), MCA.
Here, the ten-year sentence imposed by the court was less than the
statutory maximum, and appellant received no fine. Just as
important, the District Court properly imposed the restriction that
appellant be ineligible for parole or a supervised release program.
Section 46-18-202(2), MCA, provides that:
Whenever the district court imposes a sentence of
imprisonment in the state prison for a term exceeding
1 year, the court may also impose the restriction that
the defendant be ineligible for parole and participation
in the supervised release program while serving his term.
If such a restriction is to be imposed, the court shall
state the reasons for it in writing. If the court finds
that the restriction is necessary for the protection of
society, it shall impose the restriction as part of the
sentence and the judgment shall contain a statement of
the reasons for the restriction.
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&%?a.ko State v. Evans (1991), 247 Mont. 218, 806 P.2d 512: State v.
Stumpf (1980), 18'7 Mont. 225, 609 P.2d 298. Here, the court
provided specific reasons for imposing the restriction:
appellant's extensive history of criminal behavior: his
demonstrated inability to conform to the law while under parole or
probation supervision; and the need to protect society.
In sum, we hold that the District Court's imposition of this
sentencing condition is not cruel and unusual punishment.
We affirm.
Justice
We concur: