No. 04-414
IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 380N
JOSEPH A. HOWELL,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Respondent.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and for the County of Ravalli, Cause No. CR 91-18-81
The Honorable Jeffrey H. Langton, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Joseph A. Howell, pro se, Deer Lodge, Montana
For Respondent:
Honorable Mike McGrath, Montana Attorney General, Jennifer Anders,
Assistant Attorney General, Helena, Montana; George Corn, Ravalli County
Attorney, Hamilton, Montana
Submitted on Briefs: November 9, 2004
Decided: December 28, 2004
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent. It shall be filed as
a public document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.
¶2 Joseph A. Howell, appearing pro se, appeals the District Court’s denial of his Petition
for Postconviction Relief. We affirm.
¶3 In May 1991, a Ravalli County jury convicted Howell of sexual assault, sexual
intercourse without consent, and indecent exposure. Howell was sentenced to a total of 60
years’ incarceration, without the possibility of parole.
¶4 Howell chose not to apply for sentence review, but instead appealed his conviction,
which this Court affirmed in State v. Howell (1992), 254 Mont. 438, 839 P.2d 87. On May
24, 2004, Howell filed a Petition for Postconviction Relief in the Twenty-First Judicial
District Court, Ravalli County. The District Court did not order a responsive pleading from
the State, but rather entered a handwritten notation on the pleading, stating that it was
dismissed as untimely under the five-year statute of limitations for postconviction relief
which was in effect at the time of Howell’s conviction. From this denial, Howell appeals.
¶5 Howell argues that it was error for the District Court to dismiss his Petition for
Postconviction Relief without ordering a responsive pleading, because the State could have
chosen to waive the time bar, and it was denied the opportunity to do so. He further claims
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that the issue which he raises--that his sentence violates the Eighth Amendment to the United
States Constitution as cruel and unusual punishment--is an issue which might arise at any
time during a prisoner’s sentence and thus cannot be time-barred. Howell asserts that his
sentence of 60 years without the possibility of parole is essentially a life sentence and that,
because he will likely die in prison, we deem his sentence to be tantamount to the death
penalty and apply such case law here.
¶6 The State responds that the District Court did not err when it dismissed Howell’s
Petition for Postconviction Relief as untimely. It claims that a district court has the statutory
authority to do so pursuant to § 46-21-201(1), MCA, which under both the current and 1989
versions of the statute provides that a district court has the authority to dismiss a petition for
postconviction relief for failing to conclusively show that the petitioner is entitled to relief.
¶7 We review a district court’s denial of a petition for postconviction relief to determine
whether the court’s findings of fact are clearly erroneous, and whether its conclusions of law
are correct. State v. Root, 2003 MT 28, ¶ 7, 314 Mont. 186, ¶ 7, 64 P.3d 1035, ¶ 7 (citation
omitted).
¶8 We have determined to decide this case pursuant to our Order dated February 11,
2003, amending Section 1.3 of our 1996 Internal Operating Rules and providing for
memorandum opinions.
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¶9 Howell’s judgment and sentence were filed on September 9, 1991. Under the
postconviction relief statutes in effect at that time, he had five years to file a petition for
postconviction relief. See § 46-21-102, MCA (1989). Howell did not file such a petition
until May 2004, well outside the statutory time period. It is clearly untimely and thus barred.
¶10 On the face of the briefs and the record on appeal, it is manifest that the appeal is
without merit as the issues are clearly controlled by settled Montana law. Therefore, we
affirm the judgment of the District Court.
/S/ PATRICIA O. COTTER
We Concur:
/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
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