No. 03-326
IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 9
GREGORY SANCHEZ,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC 97-305,
Honorable Susan P. Watters, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Gregory J. Sanchez, Pro Se, Shelby, Montana
For Respondent:
Honorable Mike McGrath, Attorney General; Micheal S.
Wellenstein, Assistant Attorney General, Helena, Montana
Dennis Paxinos, County Attorney, Billings, Montana
Submitted on Briefs: December 19, 2003
Decided: January 27, 2004
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Gregory Sanchez (Sanchez) appeals the District Court’s denial of postconviction
relief. We affirm.
¶2 The lone issue on appeal is whether the District Court correctly denied Sanchez’s
petition for postconviction relief.
Factual and Procedural Background
¶3 On August 21, 1997, Sanchez pled guilty to the charge of deliberate homicide. He
had signed an acknowledgment and waiver of rights on August 20, 1997. Sanchez was not
suffering from any mental defect. He was fully advised of his rights and stated that he
understood he waived some rights by pleading guilty. He was represented by the
Yellowstone County Public Defender Office.
¶4 On November 14, 1997, the court sentenced Sanchez to life in prison for the offense
of deliberate homicide. The court also ordered a consecutive ten-year sentence pursuant to
Montana’s weapon enhancement statute. The court issued its written judgment on November
28, 1997. The judgment was filed on December 3, 1997. No direct appeal of this judgment
was filed. On this same date, Sanchez was served with the notice of his right to apply for
sentence review within sixty days from the date the judgment was filed.
¶5 On December 26, 1997, Sanchez filed for sentence review. On February 19, 1998,
Sanchez’s application for sentence review was heard before the Sentence Review Division
of this Court. Sanchez was present and proceeded pro se. At the hearing, Sanchez stated he
did not wish to proceed. The Review Division unanimously decided that his application for
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sentence review should “be held in abeyance until the time” Sanchez finishes the appeal
process. He would then have sixty days to refile for sentence review. Sanchez did not file
an appeal.
¶6 On January 27, 1999, Sanchez again applied for sentence review. Although the
Review Board noted his application for review was late, it nonetheless granted his request
for sentence review. When Sanchez appeared before the Review Board on this occasion, he
was represented by counsel. At the review, Sanchez again stated he did not wish to proceed.
The Review Board continued the application for review until August of 1999 so that Sanchez
could appeal his sentence if he desired. The Review Board did not explain why it allotted
Sanchez additional time to appeal his sentence at this late stage in the proceedings.
Nonetheless, Sanchez did not file an appeal.
¶7 On August 31, 2000, Sanchez filed a petition for postconviction relief. He alleged
ineffective assistance of counsel as well as numerous other claims concerning his sentence.
On December 5, 2002, he filed an amended petition for postconviction relief alleging
ineffective assistance of counsel, denial of access to the courts, denial of due process, and
that he did not enter his guilty plea freely and knowingly. On March 6, 2003, the District
Court denied Sanchez postconviction relief because his petitions were both time-barred by
§ 46-21-102(1), MCA. Sanchez appeals.
Discussion
¶8 We review a denial of a petition for postconviction relief to determine whether a
district court’s findings are clearly erroneous and whether it correctly interpreted the law.
Maier v. State, 2003 MT 144, ¶ 8, 316 Mont. 181, ¶ 8, 69 P.3d 1194, ¶ 8.
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¶9 “To determine whether a petition for postconviction relief is timely, we look to the
statute of limitations in effect at the time the petition is filed, not to the statute in effect at the
time of charge or conviction.” State v. Carson, 2002 MT 234, ¶ 13, 311 Mont. 485, ¶ 13,
56 P.3d 844, ¶ 13. A petition is required to be filed “at any time within 1 year of the date
that the conviction becomes final.” Section 46-21-102(1), MCA. The previous time limit
of five years was amended to the current one-year limit on April 24, 1997. A conviction is
final when the time to appeal to this Court expires. Section 46-21-102(1)(a), MCA. This
time limitation is a jurisdictional limit on litigation. Maier, ¶ 20. A failure to file within the
allotted time defeats a court’s jurisdiction to hear a postconviction claim. Carson, ¶ 14.
¶10 The jurisdictional time limit is not absolute. A statutory exception to the mandatory
time limit exists if a claim “alleges the existence of newly discovered evidence that, if proved
and viewed in light of the evidence as a whole would establish that the petitioner did not
engage in the criminal conduct for which the petitioner was convicted[.]” Section 46-21-
102(2), MCA. This information “may be raised in a petition filed within 1 year of the date
on which the conviction becomes final or the date on which the petitioner discovers, or
reasonably should have discovered, the existence of the evidence, whichever is later.”
Section 46-21-102(2), MCA. We have also stated that the jurisdictional time limit may be
waived in order to prevent a clear miscarriage of justice. State v. Abe, 2001 MT 260, ¶ 15,
307 Mont. 233, ¶ 15, 37 P.3d 77, ¶ 15. A miscarriage of justice exists if a defendant
provides the court with newly-discovered evidence that proves the defendant is actually
innocent. State v. Rosales, 2000 MT 89, ¶ 7, 299 Mont. 226, ¶ 7, 999 P.2d 313, ¶ 7.
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¶11 Rule 5(b), M.R.App.P., states that an appeal from a judgment in criminal cases must
be taken within sixty days. Sanchez’s sentence was imposed on November 14, 1997.
Sanchez had sixty days from this date to file an appeal to this Court. He did not appeal. His
time for appeal expired on January 13, 1998, and his conviction was then final for purposes
of the postconviction hearing statute. On August 31, 2000, Sanchez first filed a petition for
postconviction relief. On this date, § 46-21-102(1), MCA, provided that a petition for
postconviction relief must be taken within one year from the date the conviction becomes
final. Although there was a five-year time period allowed for filing petitions for
postconviction relief when Sanchez committed the deliberate homicide offense, the statute
in effect at the time he filed his petition, as well as when his conviction became final, only
allowed for one year to file such a petition. The one-year time period applies to Sanchez’s
petition. Carson, ¶ 13. Thus, Sanchez’s initial filing for postconviction relief was over one
and one-half years late. His amended petition for postconviction relief was filed on
December 5, 2002, nearly four years past the deadline.
¶12 No exceptions to the statutory time bar apply in this case. Sanchez has not pointed
to any newly-discovered evidence that proves he is innocent. Rosales, ¶ 7; § 46-21-102(2),
MCA. Similarly, he makes no claims that he is actually innocent of the homicide. Rosales,
¶ 7. No miscarriage of justice has occurred. Abe, ¶ 15.
¶13 Sanchez makes numerous allegations in his appeal. These include that his counsel
was ineffective, he was denied access to the courts, he was denied due process of law, and
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he did not enter a plea of guilty freely and knowingly. However, Sanchez does not provide
sufficient factual basis to establish any of these claims.
¶14 The issue that is dispositive of this case is whether his petition for postconviction
relief was timely filed. It was not. Sanchez has failed to establish that any of the exceptions
to the jurisdictional time bar apply. Sanchez has not established that the District Court’s
findings are clearly erroneous or that the court’s interpretations of law are incorrect. Maier,
¶ 8. We affirm.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ JOHN WARNER
/S/ JIM RICE
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