No. 04-875
IN THE SUPREME COURT OF THE STATE OF MONTANA
2005 MT 165N
STATE OF MONTANA,
Plaintiff and Respondent,
v.
DARRYL L. FROST,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone, Cause No. DV 04-1012
The Honorable Gregory R. Todd, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Darryl L. Frost, pro se, Shelby, Montana
For Respondent:
Honorable Mike McGrath, Montana Attorney General, Jennifer Anders,
Assistant Attorney General, Helena, Montana; Dennis Paxinos, Yellowstone
County Attorney, Ira Eakin, Deputy County Attorney, Billings, Montana
Submitted on Briefs: June 8, 2005
Decided: June 28, 2005
Filed:
__________________________________________
Clerk
Justice James C. Nelson 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 but 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 Darryl Frost appeals an order of the District Court for the Thirteenth Judicial District,
Yellowstone County, dismissing his Petition for Postconviction Relief as time barred. We
affirm.
BACKGROUND
¶3 In November 2000, Frost was charged by Information with one count of deliberate
homicide. The Information was later amended to a charge of mitigated deliberate homicide
after Frost negotiated a plea agreement with the State. In the plea agreement, Frost agreed
to enter an Alford plea to the charge of mitigated deliberate homicide in exchange for the
State recommending a sentence of 40 years plus 10 years for the use of a weapon, for a total
of 50 years. Frost recommended, on the other hand, that the court sentence him to 30 years
for the homicide and that the 10 consecutive years for the use of a weapon should be
suspended, for a total of 40 years with 10 suspended.
¶4 On April 3, 2002, the District Court issued its Judgment and Commitment wherein
the court accepted Frost’s Alford plea and imposed a sentence that combined both sentencing
recommendations. The court followed the State’s recommendation by sentencing Frost to
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40 years plus a 10-year consecutive term for the use of a weapon. And, the court followed
Frost’s recommendation by suspending that 10-year term. Hence, the court sentenced Frost
to a total of 50 years with 10 suspended. Frost did not appeal.
¶5 On September 29, 2004, almost two and one-half years after judgment, Frost filed a
pro se Petition for Postconviction Relief in the District Court claiming that the 10-year
sentence he received for the use of a weapon in the commission of the offense of mitigated
deliberate homicide was unlawful. Two weeks later, Frost filed an Amended Petition for
Postconviction Relief wherein he argued that his conviction was invalid because, having
entered an Alford plea, he never admitted to the enhancing act as required by § 46-1-
401(1)(d), MCA.
¶6 By Order dated October 29, 2004, the District Court dismissed Frost’s petition,
without a responsive pleading from the State, concluding that the petition was time barred
under § 46-21-102, MCA, and that Frost failed to allege newly discovered evidence of his
actual innocence that would excuse his delay. The court also noted that Frost could have
raised the issues on direct appeal and that his failure to do so meant that the issues were
procedurally barred as well. Frost appeals the District Court’s Order dismissing his Petition
for Postconviction Relief.
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DISCUSSION
¶7 The District Court entered judgment on Frost’s case on April 3, 2002. Under Rule 5,
M.R.App.P., Frost had 60 days from that date to file an appeal with this Court. He failed to
do so and his conviction became final on June 3, 2002, when the time for taking an appeal
to this Court expired. Section 46-21-102(1)(a), MCA. Frost filed his Petition for
Postconviction Relief on September 29, 2004, more than two years after his conviction
became final. However, § 46-21-102(1), MCA, provides that a petition for postconviction
relief may be filed “at any time within 1 year of the date that the conviction becomes final.
[Emphasis added.]”
¶8 Moreover, § 46-21-102, MCA, provides for only one exception to the one-year time
bar--where the petitioner alleges a claim 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. Frost did not allege in his petition that there is any newly discovered evidence that
he is innocent of the offenses for which he was convicted. Instead, he challenges the
sentencing court’s authority to impose a sentence under the weapon enhancement statute.
Hence, the District Court concluded, and we agree, that the exception to the one-year time
bar in § 46-21-102(2), MCA, may not be applied to Frost.
¶9 Accordingly, we hold that the District Court did not err in dismissing Frost’s Petition
for Postconviction Relief.
¶10 Affirmed.
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/S/ JAMES C. NELSON
We Concur:
/S/ KARLA M. GRAY
/S/ PATRICIA O. COTTER
/S/ JIM RICE
/S/ BRIAN MORRIS
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