No. 04-009
IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 261N
GEORGE NOEL,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Respondent.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln, Cause No. DV-03-84,
The Honorable Michael C. Prezeau, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
George Noel (pro se), Deer Lodge, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Jim Wheelis,
Assistant Attorney General, Helena, Montana
Bernard G. Cassidy, Lincoln County Attorney, Libby, Montana
Submitted on Briefs: April 20, 2004
Decided: September 21, 2004
Filed:
__________________________________________
Clerk
Justice Jim Regnier 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 Appellant George Noel, appearing pro se, appeals the District Court’s denial of his
Petition for Postconviction relief. We affirm.
¶3 We restate the sole issue on appeal as follows:
¶4 Did the District Court err in denying Noel’s petition for postconviction relief?
¶5 On November 17, 1998, Noel was charged with sexual assault in Lincoln County,
based on an allegation that he had initiated sexual contact with a seven-year old girl. On
March 14, 2000, Noel pled guilty to the offense of sexual assault pursuant to a plea
agreement. The agreement provided for a ten-year suspended sentence contingent on
acceptance into an outpatient sex offender program. While awaiting sentencing, Noel
absconded for a year and a half but was later arrested, extradited and eventually charged with
felony bail jumping on May 15, 2002. Noel was sentenced on September 30, 2002, to a term
of ten years imprisonment with two years suspended for the felony crime of sexual assault.
On the same date, he was sentenced to five years in prison, all suspended, for felony bail
jumping, consecutive to the sentence for the sexual assault charge.
¶6 On July 10, 2003, Noel filed a petition for postconviction relief in the Nineteenth
District Court, Lincoln County, arguing a 1993 award for disability under the Social Security
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Act established he was legally incompetent to enter a plea agreement at the time of his
conviction; the statutorily required sexual offender evaluation performed by a state
sanctioned physician failed to accurately recognize his incompetency for plea agreement
purposes; the State abused its discretion and acted out of malice when it re-filed the bail
jumping charge after earlier dismissing it; and the State violated the terms of the plea
agreement when it failed to recommend a suspension of his sentence after he enrolled in a
substance abuse program. Noel requested relief in the form of appointment of counsel and
an evidentiary hearing. The State disputed all of Noel’s allegations.
¶7 On November 12, 2003, the District Court denied Noel’s petition, concluding all of
his claims were without merit. The District Court found no evidence in the record or from
the state required comprehensive psychosexual evaluation that Noel suffered from a mental
disorder excusing his conduct. Further, the District Court held the State did not abuse its
prosecutorial discretion when it re-filed the bail jumping charge nor that it violated the terms
of the plea agreement. Finally, the District Court considered the applicable criteria when
sentencing Noel and any objection by Noel to this was not timely filed. Therefore, the
District Court did not appoint counsel and denied the petition without a hearing.
¶8 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 (citations
omitted).
¶9 Noel argues the District Court erred when it concluded there was insufficient evidence
to support his contentions in the petition for postconviction relief. He claims the record
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clearly establishes each of his grievances against the State and further, the District Court did
not comply with sentencing guidelines when it failed to enumerate the reasons for his
incarceration.
¶ 10 The State responds the District Court properly determined the petition lacked merit
as a matter of law and all of his claims could have been raised on direct appeal. Therefore,
pursuant to § 46-21-105(2), MCA, Noel cannot now raise these issues in a petition for
postconviction relief.
¶ 11 We agree with the State. All of Noel’s claims could have been presented on direct
appeal. Therefore, he is procedurally barred from raising them in a petition for
postconviction relief. Affirmed.
/S/ JIM REGNIER
We Concur:
/S/ PATRICIA O. COTTER
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ JIM RICE
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