State v. Gollehon

No. 95-316
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995

APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Powell,
The Honorable Ed McLean, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Michael Donahoe, Assistant Federal Defender, Helena,
Montana

For Respondent:
Joseph P. Mazurek, Attorney General, Jennifer
Anders, Pamela Collins, Assistant Attorneys General,
Helena, Montana; Christopher Miller, Powell County
Attorney, Deer Lodge, Montana

Submitted on Briefs: November 16, 1995
Decided: November 30, 1995
Filed:
Justice James C. Nelson delivered the Opinion of the Court.

William Gollehon (Gollehon) was convicted of deliberate
homicide by accountability and sentenced to death. He appeals from
an order of the District Court denying his motion for a new trial
and request for discovery. We affirm the trial court's denial of
Gollehon's motion for new trial; we do not address the trial
court's ruling on his request for discovery.
Gollehon raises on appeal the issue of whether the State
failed to timely disclose information that he could have used as
mitigating evidence at his sentencing hearing and whether that
failure justifies reversal of the death sentence that was imposed
in his case.
We restate the issue as whether Gollehon's raising this issue
in the context of an untimely motion for new trial bars our
consideration of the merits of his claim. We hold that it does.
BACKGROUND
In October 1991, Gollehon was convicted of deliberate homicide
by accountability and sentenced to death for his participation in
the beating death of fellow prison inmate, Gerald Pileggi. This
Court upheld that conviction and sentence in State v. Gollehon
(1993) I 262 Mont. 1, 864 P.2d 249.
On March 11, 1994, Gollehon petitioned the United States

Supreme Court for certiorari. That Court declined to accept
Gollehon's case for review in an order published October 3, 1994.
Gollehon v. Montana (19941, _ U.S. _, 115 S.Ct. 95, 130 L.Ed.Zd
45.
2
 The State then moved the District Court for a hearing to reset
Gollehon's execution date since the previous execution date had
expired during the direct appeal process. At the March 24, 1995
hearing, Gollehon moved the District Court for an order requiring
the State to produce any pretrial or posttrial promises or
agreements with two eyewitnesses who testified at Gollehon's trial.
Gollehon argued that this information, had it been disclosed, could
have been used as impeachment evidence at trial.
The District Court granted Gollehon's request for discovery of
pretrial agreements between the State and the eyewitnesses and
ordered further briefing on the issue of whether Gollehon was
entitled to any posttrial agreements. The District Court reset
Gollehon's execution for June 11, 1995.
On March 29, 1995, Gollehon moved for a new trial and a stay
of execution. The State responded that the motion for new trial
was untimely and should be summarily dismissed on that basis.
The District Court held a hearing on Gollehon's motions on
June 7, 1995, just four days prior to Gollehon's scheduled
execution date. At the hearing, the court determined that
Gollehon's motion for a new trial was untimely. In addition, the
court denied Gollehon's request for discovery of the State's post-
trial arrangements with the witnesses, finding that any evidence
regarding posttrial agreements would be irrelevant at sentencing as
it was not the court's function to reweigh the jury's determination
of witness credibility in a capital sentencing proceeding.
Gollehon appeals the order of the District Court denying his

3
motion for a new trial and his request for discovery. Because of
the proximity of Gollehon's execution date, the District Court
issued a stay of execution pending Gollehon's appeal.
DISCUSSION
Gollehon maintains that his appeal "concerns the State's duty
to disclose material information that would have aided [him] in
convincing this Court that the balance of aggravating and
mitigating factors demanded the imposition of a non-death
sentence." Gollehon argues that the State violated its obligations
under Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10
L.Ed.2d 215, and under 46-15-322(l) (e), MCA, in failing to disclose
the 1992 commutation of the sentence of State's witness Armstrong
and his 1993 parole. Armstrong was one of the eyewitnesses who
testified against Gollehon at his homicide trial.
We decline to reach the merits of Gollehon's Brady claim,
however, in the procedural context in which the claim is raised.
Specifically, Gollehon is appealing from the District Court's
denial of his out-of-time motion for new trial. While Gollehon
focuses on his substantive Bradv claim, our initial inquiry is
whether his claim, brought in the context of an untimely motion for
new trial, should even be entertained. We conclude that it should
not.
Section 46-16-702(2), MCA, provides that a motion for a new
trial "must be filed by the defendant within 30 days following a
verdict or finding of guilty. . . .II There is no provision in the
statute for extending that time period. Gollehon's time for filing

4
his new trial motion expired November 7, 1991, 30 days from entry

of the verdict on October 7, 1991. Accordingly, his new trial
motion, filed some three and one-half years after the entry of the

verdict, is clearly untimely.

While Gollehon relies on past decisions of this Court (two of
which were written by the author of this opinion) to avoid the

plain and unambiguous requirements of the statute and to reach the

merits, we are now persuaded that we originally started down this

shaky staircase in error and that our judicially created exceptions
to the statute are fast becoming the rule. With that premise in

mind, it is appropriate to re-examine our prior decisions.

State v. Best (1972), 161 Mont. 20, 503 P.2d 997, is cited as

the seminal authority for the argument that evidence newly

discovered posttrial provides an exception to the 30-day filing

requirement for a new trial motion under our present statutory

scheme. In that case the defendant filed in this Court his new

trial motion during the pendency of his direct appeal. We noted

that the motion was both untimely and filed in the wrong court

under 5 95-2101, RCM (1947), the predecessor to 5 46-16-702, MCA.

Best 503 P.2d at 1000.
-I In that conclusion we were correct, and we
should have simply refused to entertain the defendant's motion on

that basis. We needlessly went further, however.

In dicta, citing State v. Nicks (1957), 131 Mont. 567, 312

P.2d 519, we stated that,

[i]f the grounds for seeking a new trial do not arise
until after expiration of the 30 day period or until
after the appeal is filed, the proper procedure is to
stay the appeal, remand the case to the district court,

5
 file the motion, secure the district court's decision
thereon, and continue with the appeal.
Best
-I 503 P.2d at 1001.
Unfortunately, under 5 95-2101, RCM (1947) -- the new trial

statute in effect when we decided Best -- Nicks was not authority

either for the referred to "procedure" or for an exception to the

30-day filing requirement. Rather, Nicks involved 5 94-7604, RCM

(1947), which was repealed in 1967 and 5 95-2101, RCM (1947), was

adopted. Section 94-7604, RCM (1947), allowed a new trial motion
to be filed "within thirty days after the discovery of the facts

upon which the party relies in support of his motion Land1 in all

other cases . . . within ten days after the rendition of the
verdict." Section 94-7604, RCM (1947); Nicks 312 P.2d at 520.
-,
While we reached the right result in Best, we erred in stating

that we lacked jurisdiction to entertain the new trial motion at

issue there because of the defendant's "failure to follow [the

Nicks] procedure." Best
-I 503 P.2d at 1001. While that procedure

may have been available to Nicks under the statute governing his

case, it was not available to Best under the different statute

applicable in that case. The result in Best was correct because

the defendant's motion for new trial was not timely filed -- not

for the reason we articulated.

In State v. Perry (1988), 232 Mont. 455, 758 P.2d 268, the

defendant filed a motion for new trial following the recantation of

the State's eyewitness some 15 years after Perry's murder

conviction. Perrv, 758 P.2d at 269-70. We rejected the State's

argument that the motion, though denoted a motion for new trial,
6
was actually a petition for post-conviction relief which was
procedurally barred pursuant to the five year statute of
limitations imposed by 5 46-21-102, MCA. Perry, 750 P.2d at 272.
Moreover, we declined to treat Perry's motion as a petition for
writ of habeas corpus, although we noted that his claim,
nevertheless, sounded in the nature of that relief. 7
Perry,
5 8
P.2d at 273. With no statutory posttrial remedies available, we
finally concluded that we must, nevertheless, reach the merits of
Perry's claim because he had no other avenue of relief and that to
deprive him of a method of redress regardless of his diligence or
the justness of his claim would be inconsistent with the intent of
the legislature and with Art. II, sec. 17, of Montana's 1972
Constitution. Perry, 758 P.2d at 272-73.
Perry is unique on its facts. That case does not stand for
the general proposition that a motion for new trial may be
entertained beyond the 30-day filing requirement of § 46-16-702,
MCA, and it is a misapplication of our decision in that case to
argue that its analysis should be extended beyond other cases with
like facts.
State v. Redcrow (1990), 242 Mont. 254, 790 P.2d 449, involved
the defendant's motion for new trial filed approximately two months
following her conviction of deliberate homicide. Redcrow, 790 P.2d
at 451. The district court, while noting the untimeliness of

Redcrow's motion in its order, nevertheless ruled on the merits of
her motion because it was filed "within a reasonable period of
time" after the verdict and "because of the serious nature of the

7
offense." RedCrOW, 790 P.2d at 452. Citing BestI we
- acknowledged
the 30-day time limit imposed by the statute and noted that the
factors considered by the trial court did not require that it
entertain Redcrow's motion. Nonetheless, we addressed the merits
of Redcrow's claim because "of the extensive consideration of the
motion by the District Court." Redcrow, 790 P.2d at 452.
Similarly, in State v. Moore (1994), 268 Mont. 20, 885 P.2d
457, in an opinion written by the author of this opinion, we cited
Redcrow as precedent and followed its rationale -- i.e., motion
filed within a reasonable time after verdict; extensive
consideration of the out-of-time motion for new trial by the
district court; and seriousness of the case -- in reaching the
merits of Moore's motion for new trial, filed approximately two
months following his conviction of deliberate homicide. Moore, 885
P.2d at 464, 479, 480-81.
In Redcrow we improperly reached the merits of the defendant's
untimely motion for new trial notwithstanding that the trial court
gave "extensive consideration" to the motion. There are no
"reasonable time" or "serious case" exceptions to the 30-day filing
requirement under § 46-16-702, MCA, and, as we pointed out in both
Redcrow and Moore, those factors do not require the district court
to entertain an out-of-time motion for new trial. Redcrow, 790
P.2d at 452; Moore, 885 P.2d at 480-81; § 46-16-702, MCA.
Unfortunately, in Redcrow, by judicial fiat, we created those
exceptions from whole cloth for the purpose of reaching the merits.
Moreover, as pointed out above, lest was not properly cited as

8
authority for an exception to the 30-day filing requirement because
the statement in that case supporting that argument was dicta, and
flawed dicta, at that. Finally, neither the problem addressed in
Perry nor that addressed in State v. Barrack (1994), 267 Mont. 154,
882 P.2d 1028, (discussed below), were at issue in Redcrow.
Likewise, Moore suffers from the same deficits, and we were
wrong to rely on Redcrow as precedent for reaching the merits of
the new trial issue. Moore's untimely motion for new trial should
have simply been denied on the basis of the procedural bar.
Finally, it is necessary to discuss our resolution of the out-
of-time motion for new trial issue in Barrack, the other decision
written by the author of this opinion. Like Perry, the
circumstances of that case are unique. Barrack, 882 P.2d at 1032.
In Barrack, the defendant was convicted of aggravated assault on
June 30, 1992, and his first motion for new trial was heard and
sentence was pronounced on August 5, 1992. Final judgment was
filed August 21, 1992. Barrack, 882 P.2d at 1030. Barrack filed
a second motion for new trial on August 26, 1992. Barrack, 882
P.2d at 1031. At a posttrial hearing on October 14, 1992, the
trial court determined to treat Barrack's out-of-time motion as a
petition for post-conviction relief under a writ of coram nobis
pursuant to § 46-21-101(l), MCA. Ultimately, after a hearing in
December 1992, the district court denied the defendant's motion
(petition) on the merits. Barrack, 882 P.2d at 1031.
Citing § 46-16-702, MCA, the State argued that Barrack's
motion was untimely and that it was improper for the trial court to

9
treat the motion as one for post-conviction relief. We agreed.
Barrack, 882 P.2d at 1031-32. Nevertheless, we noted that Barrack
had a right to appeal his conviction and that his appeal time had
expired on October 21, 1992. Importantly, we concluded that the
trial court erred when, on October 14, 1992, it determined to treat
Barrack's untimely motion for new trial as one for post-conviction
relief, with the result that the court "may have effectively
curtailed any attempt Barrack may have made to appeal within the
remaining statutory time . . [And, thus1 possibly lulled the
defendant into a position where he did not timely pursue his appeal
rights. . . .'I Barrack, 882 P.2d at 1032.
It was for that reason only that we determined to address the
district court's decision on the merits of Barrack's untimely
motion. Notwithstanding, as we noted in concluding our analysis:
[Wle wish to emphasize, however, that our decision here
is not in any way to be read as enlarging the scope of
post-conviction relief oz as diminishing a defendant'&
obligation to timely file a motion for a new trial and a
petition for post-conviction relief or appeal in
accordance with the applicable statutes. [Emphasis
added.]
Barrack, 882 P.2d at 1032.

Given the above case analyses, we hold that neither BestI
-
Redcrow nor Moore, should henceforth be cited as authority for the
proposition that either this Court or the district court may
entertain a motion for new trial not timely filed in accordance
with § 46-16-702, MCA. Furthermore, as to the new trial issue, we
remain convinced that Perrv and Barrack were correctly decided
given their unique facts and procedural circumstances, and we

10
reaffirm our decisions in those cases. We leave those cases --
limited to their facts -- standing as two judicially created
exceptions to § 46-16-702, MCA, solely because the constitutional
due process implications in each transcend the otherwise clear and
unambiguous requirements of the statute.
With that frame of reference in mind, we hold that Gollehon's
motion for new trial, filed three and one-half years post-verdict,
is barred as being not timely filed and that neither the Perry nor
the Barrack exceptions are applicable in the instant case. Unlike
Barrack, Gollehon has had a direct appeal of his case, and he has
not been lulled into the waiver of any posttrial remedy through
error of the trial court. Unlike Perry, Gollehon has the vehicle
to raise his post-verdict claims through a petition for post-
conviction relief. He may still timely file such a petition under
§ 46-21-101, MCA; to date, he has simply chosen not to do so.
Accordingly, while we affirm the District Court's denial of
Gollehon's motion for new trial as being time-barred, we decline to
address the merits of the defe
context of his untimely new tri

We Concur

11
 November 30, 1995

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:

Michael Donahoe (ha.nd -)
Assistant Federal Defender
Box 258
Helena MT 59624-0258

Hon. Joseph P. Mazurek, Attorney General
Jennifer Anders, Pamela Collins, Assistants
215 N. Sanders
Helena MT 59620

Christopher Miller
Powell County Attorney
409 Missouri Avenue
Deer Lodge MT 59122

ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA