Smith v. State

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No. 00-121
IN THE SUPREME COURT OF THE STATE OF MONTANA

2000 MT 327

303 Mont. 47

15 P. 3d 395

RONALD ALLEN SMITH,

Petitioner and Appellant,

v.

STATE OF MONTANA,

Respondent and Respondent.

APPEAL FROM: District Court of the Eleventh Judicial District,

In and for the County of Flathead,

The Honorable Katherine R. Curtis, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Don Vernay, Attorney at Law, Kalispell, Montana

Gregory A. Jackson, Attorney at Law, Helena, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; C. Mark Fowler,

Assistant Attorney General, Helena, Montana

Thomas J. Esch, Flathead County Attorney, Kalispell, Montana

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Submitted on Briefs: August 3, 2000
Decided: December 14, 2000

Filed:

__________________________________________

Clerk

Justice Karla M. Gray delivered the Opinion of the Court.

¶1 Ronald Allen Smith appeals from the dismissal of his petition for postconviction relief
by the Eleventh Judicial District Court, Flathead County. We affirm.

¶2 We restate the issues as follows:

¶3 1. Did the District Court err in ruling that Smith is procedurally barred from raising the
issue of the constitutionality of Montana's statutory scheme of selecting substitute judges
as applied to his case?

¶4 2. Did the District Court err in failing to grant Smith a hearing so he could present
evidence that Judge Larson's post-sentencing actions show bias toward him and his
counsel?

Background

¶5 Ronald Allen Smith pled guilty on February 24, 1983, to two counts of aggravated
kidnaping and two counts of deliberate homicide for his participation in the kidnaping and
deaths of Thomas Running Rabbit, Jr., and Harvey Mad Man, Jr. The facts of the crimes
are summarized in State v. Smith (1985), 217 Mont. 461, 705 P.2d 1087 (Smith I). The
death penalty was imposed in 1983, consistent with Smith's request. This Court affirmed
the death sentence in Smith I.

¶6 After the initial sentence was imposed, Smith petitioned for a writ of habeas corpus in
federal court. His petition was conditionally granted in Smith v. McCormick (9th Cir.
1990), 914 F.2d 1153. The Ninth Circuit ordered the Montana court to resentence Smith

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and granted him an evidentiary hearing in federal court on his claims of ineffective
assistance of counsel.

¶7 On re-sentencing, the original judge in Montana's Eleventh Judicial District Court
disqualified himself and asked another district judge, the Honorable Leif B. Erickson, to
assume jurisdiction. When Judge Erickson accepted a position on the federal bench shortly
thereafter, he recused himself and the Honorable Douglas G. Harkin of the Fourth Judicial
District Court assumed jurisdiction. Following a second sentencing hearing, Smith moved
to disqualify Judge Harkin on the basis of bias. That motion was denied and Judge Harkin
imposed the death penalty. On appeal, this Court vacated that sentence and remanded for
re-sentencing. State v. Smith (1993), 261 Mont. 419, 863 P.2d 1000 (Smith II).

¶8 On remand, the case was assigned to the Honorable John W. Larson of Montana's
Fourth Judicial District Court. Judge Larson presided over a sentencing hearing in May of
1995, and in September of that year issued an 82-page decision sentencing Smith to death.

¶9 While appeal of the third sentence was pending in this Court, Judge Larson issued an
"Order on Attorney's Fees" which reduced Smith's counsel's attorney fees and travel
monies and imposed other restrictions on how counsel could work on Smith's case. In
response to that order, Smith's counsel filed an application for writ of supervisory control
with this Court. We granted supervisory control, striking the District Court's disallowance
of expenses for counsel's travel time related to preparing an appeal and instead allowing
"actual and necessary travel expenses relating to preparation of the defense" on appeal.

¶10 Also during the pendency of the appeal, Smith filed with this Court a "Motion to
Remand to District Court or in the Alternative to Allow Supplementation of Record on
Appeal," in which he alleged that Judge Larson was possibly biased and influenced by the
media. Smith attached to his motion copies of seven newspaper articles concerning his
case. We denied the motion, stating that Smith had not established that anything in the
articles had influenced Judge Larson in sentencing him, and that the articles had not been
shown to be appropriate or relevant for consideration on appellate review.

¶11 We ultimately affirmed the death sentence as imposed in September 1995, and the
United States Supreme Court denied Smith's petition for writ of certiorari. State v. Smith
(1996), 280 Mont. 158, 931 P.2d 1272, cert. denied, 522 U.S. 965, 118 S.Ct. 410, 139 L.
Ed.2d 314 (1997) (Smith III).

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¶12 In November 1998, Smith petitioned the District Court for postconviction relief. In
attacking his third death sentence, he set forth four claims for relief:

1. Montana's statutory procedure for selecting district judges to preside in cases in
which the original judge has been disqualified is unconstitutional as applied to
Smith under the due process clauses of the state and federal constitutions.

2. The sentencing court considered prior death sentences and Dr. William Stratford's
testimony from a prior sentencing proceeding in violation of Smith's rights under the
Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution
and Article II, Sections 17, 24, and 25 of the Montana Constitution.

3. The State's 16-year incarceration of Smith and repetitive sentencing where the
judge who imposed the original death sentence selected the successor sentencing
judge and where the successor sentencing judge was aware of and was influenced by
the prior death sentences violates Smith's rights under the Sixth, Eighth, and
Fourteenth Amendments to the United State Constitution and Article II, Sections 17,
22, 24, and 28 of the Montana Constitution.

4. The State's 16-year incarceration and repetitive sentencing of Smith violates his
rights under the Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution and Article II, Sections 17, 22, 24, and 28 of the Montana Constitution
because he has been "forced to undergo the pain, suffering and uncertainty of being
incarcerated and living under a possibility of sentence of death for over sixteen
years."

Judge Larson directed that the petition for postconviction relief be filed as a separate civil
proceeding and invited the Honorable Katherine R. Curtis to assume jurisdiction over it,
while he retained jurisdiction over the criminal proceedings.

¶13 With its response to the petition, the State filed a motion to dismiss on procedural and
res judicata grounds. Following briefing, Judge Curtis granted that motion. Smith appeals.

Standard of Review

¶14 A district court may dismiss a petition for postconviction relief as a matter of law for
failure to state a claim for relief. Section 46-21-201(1)(a), MCA. Postconviction relief is

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not available upon claims for relief that could have been raised on direct appeal. Section
46-21-105(2), MCA. Our standard of review of a district court's denial of a petition for
postconviction relief is whether the court's findings of fact are clearly erroneous and
whether its conclusions of law are correct. State v. Hanson, 1999 MT 226, ¶ 9, 296 Mont.
82, ¶ 9, 988 P.2d 299, ¶ 9.

Issue 1

¶15 Did the court err in ruling that Smith is procedurally barred from raising the issue of
the constitutionality of Montana's statutory scheme for selecting substitute judges as
applied to his case?

¶16 This issue relates to the dismissal of Smith's first claim for relief. The District Court
dismissed this claim under the procedural bar set forth at § 46-21-105(2), MCA: "When a
petitioner has been afforded the opportunity for a direct appeal of the petitioner's
conviction, grounds for relief that were or could reasonably have been raised on direct
appeal may not be raised, considered or decided in a proceeding brought under this
chapter."

¶17 The specific statutory provision to which Smith objects is now found at § 3-1-804(1)
(b), MCA: "The first district judge who has been substituted or disqualified for cause shall
have the duty of calling in all subsequent district judges." The provision has been in effect
in substantially the same form since at least 1981, prior to the crimes of which Smith was
convicted. Smith could have challenged the constitutionality of this provision as early as
in his second sentencing proceeding which began in 1991, at which time the statutory
procedure was used to select a new judge for Smith's resentencing. Smith ignored another
opportunity to raise this claim following his January 14, 1992 sentencing hearing, when he
filed an affidavit to disqualify the then-presiding judge, Judge Harkin, pursuant to § 3-1-
805, MCA. The original sentencing judge again called in a replacement. Nothing in the
record shows that Smith's attorney was precluded from raising this issue at that time, nor
was this issue precluded on the appeal of Smith's second sentence. Finally, Smith had
additional opportunities to contest this statutory proceeding during his third sentencing
and the appeal from that sentencing.

¶18 We conclude that the procedural bar providing that postconviction relief is not
available upon claims for relief that could have been raised on direct appeal clearly applies
to Smith's first claim, which could have been raised on several direct appeals. We affirm

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the District Court's dismissal of Smith's petition for postconviction relief as to that claim.

Issue 2

¶19 Did the District Court err in failing to grant Smith a hearing so that he could present
evidence that Judge Larson's post-sentencing actions show bias toward him and his
counsel?

¶20 Smith contends that facts showing that Judge Larson was biased occurred after the
record was transmitted for purposes of his appeal in Smith III, thereby precluding him
from discussing them on appeal. On that basis, he asserts entitlement, at the least, to an
evidentiary hearing on his third postconviction claim, pertaining to the selection of a judge
by the original sentencing judge.

¶21 Specifically, Smith desires an evidentiary hearing to allow him to present and develop
evidence relative to comments made by Judge Larson to the media following his
sentencing hearing, but before sentence was imposed. According to Smith, Judge Larson's
comments demonstrated bias. Smith also claims entitlement to an evidentiary hearing on
whether Judge Larson demonstrated bias by imposing restrictions on defense counsel fees
and travel expenses during preparation of the appeal in Smith III.

¶22 In support of his argument, Smith cites State v. Bromgard (1995), 273 Mont. 20, 901
P.2d 611. Our decision in Bromgard hinged on statutory language relating to supplemental
petitions for postconviction relief: if "the court on hearing a subsequent petition finds
grounds for relief that could not reasonably have been raised . . . ." Section 46-21-105(1),
MCA (1993) (emphasis added). We implied that, by the use of the words "on hearing," the
statute required an evidentiary hearing to determine whether grounds raised in a
subsequent petition for postconviction relief could have been raised in the original
petition. Bromgard, 273 Mont. at 24, 901 P.2d at 614. That (since-repealed) statutory
provision relating to subsequent petitions for postconviction relief has no application to a
case such as this one, however, which involves an appeal from the dismissal of an original
petition for postconviction relief.

¶23 Smith also cites language from this Court's opinion in Hagen v. State, 1999 MT 8, 293
Mont. 60, 973 P.2d 233, where we stated:

Raising record-based ineffective assistance of counsel claims on direct appeal does

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not foreclose raising non record-based claims via petition for postconviction relief.
Indeed, only those ineffective assistance claims which are essentially record-based
can be raised on direct appeal; where allegations of ineffective assistance cannot be
documented from the record in the underlying case, such claims can only be raised
in a postconviction proceeding.

Hagen, ¶ 15 (citations omitted). He claims entitlement to an evidentiary hearing on the question of
Judge Larson's bias under Hagen because he only became aware of some facts indicating Judge
Larson's bias following the sentencing hearing and his efforts to make those facts a part of the record on
appeal before this Court were thwarted. Consequently, Smith posits, the issue of bias which was based
on those facts could not have been raised on appeal.

¶24 The State points out, however, that most of the newspaper articles Smith cited in his
"Motion to Remand to District Court or in the Alternative to Allow Supplementation of
Record on Appeal" were published before his sentencing by Judge Larson. In fact, in his
direct appeal, Smith urged that Judge Larson's media contacts, including his post-
sentencing comments to media, showed he was influenced by passion, prejudice, or
another arbitrary factor. This Court fully considered, but rejected, that contention. Smith
III, 280 Mont. at 181-83, 931 P.2d at 1286-87. To that extent, the issue of Judge Larson's
alleged bias was raised on direct appeal and is procedurally barred under § 46-21-105(2),
MCA.

¶25 Smith's further contention that Judge Larson's bias was established by the imposition
of limitations on attorney fees and expenses incurred in preparing the appeal for Smith III
is negated to a large degree by this Court's limited acceptance of supervisory control as to
the imposition of those limitations. In our 1996 order accepting supervisory control, we
merely deleted a condition that Judge Larson had imposed denying the payment of counsel
expenses for travel time, without commenting upon or interfering with other limitations
which Judge Larson imposed. Nor did we deem it necessary to grant Smith's request for
"such other relief as is meet and proper in the premises."

¶26 At any rate, Smith does not contend that Judge Larson's post-sentencing actions,
standing alone, constitute grounds for postconviction relief. Instead, Smith's
postconviction claim of bias by Judge Larson as the sentencing judge is essentially the
same claim raised on direct appeal, to which is added Smith's hope of establishing
additional facts showing bias at an evidentiary hearing. Arguably, under Smith's theory,
every claim raised on appeal could be transformed into a different claim with the
accumulation of additional facts over time. Nothing in the law permits such an approach.

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¶27 Res judicata bars relitigation, in a petition for postconviction relief, of issues already
determined on direct appeal if: (1) the same ground presented in the subsequent
application was determined adversely to the applicant in a prior action; (2) the prior
determination was on the merits; and (3) the ends of justice would not be served by
reaching the merits of the subsequent application. State v. Baker (1995), 272 Mont. 273,
282, 901 P.2d 54, 59 (citing Sanders v. United States (1963), 373 U.S. 1, 15, 83 S.Ct.
1068, 1077, 10 L.Ed.2d 148, 161). The res judicata bar also applies to issues considered in
an earlier application for supervisory control. State v. Smith (1986), 220 Mont. 364, 372,
715 P.2d 1301, 1306.

¶28 We are hard-pressed to find any allegations by Smith in the present case which have
not previously been considered in one form or another by this Court. As the State points
out, Smith's request for a hearing on his "new evidence" is really nothing more than a
request for a fishing expedition. Postconviction relief proceedings are not a discovery
device in which a petitioner, through broad allegations in a verified pleading, may
establish the right to an evidentiary hearing.

¶29 In his reply brief, Smith argues that because this is a death penalty case, the interests
of justice require that his claims be determined on their merits. The State has moved to
have this portion of the reply brief stricken as new material impermissibly raised at that
time. See Rule 23(c), M.R.App.P., and, e.g., Kinsey-Cartwright v. Brower, 2000 MT 198,
¶ 9, ___ Mont. ___, ¶ 9, 5 P.3d 1026, ¶ 9. Because this argument was first raised in the
reply brief, we have not considered it.

¶30 We conclude that Smith has raised nothing in support of his third claim for relief
which is not procedurally barred by § 46-21-105(2), MCA, or the doctrine of res judicata.
We hold, therefore, that the District Court did not err in failing to grant Smith an
evidentiary hearing on his allegations that Judge Larson's post-sentencing actions show
bias toward him and his counsel.

¶31 Having considered and rejected Smith's arguments on appeal, we affirm the District
Court's dismissal of his petition for postconviction relief.

/S/ KARLA M. GRAY

We concur:

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/S/ J. A. TURNAGE

/S/ JIM REGNIER

/S/ W. WILLIAM LEAPHART

Justice Terry N. Trieweiler concurring.

¶32 I concur with the result of the majority opinion, although I do not agree with all that is
said therein.

/S/ TERRY N. TRIEWEILER

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