No. 05-506
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 96N
ERIC R. SMITH,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Respondent.
APPEAL FROM: The District Court of the Fourth Judicial District,
In and For the County Missoula, Cause No. DV-2004-879,
Honorable Edward P. McLean, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Eric R. Smith, pro se, Missoula, Montana
For Respondent:
Honorable Mike McGrath, Attorney General; Pamela Collins,
Assistant Attorney General; Helena, Montana
Judith L. Wang, Assistant City Attorney, Missoula, Montana
Submitted on Briefs: March 29, 2006
Decided: May 9, 2006
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and its case title, Supreme Court cause number and disposition shall be included in
this Court’s quarterly list of noncitable cases published in the Pacific Reporter and
Montana Reports.
¶2 A Missoula Municipal Court jury convicted Eric R. Smith of indecent exposure, a
misdemeanor, based on the allegation that he had masturbated in front of his four-year-
old daughter. Smith appealed as a pro se litigant, and the Fourth Judicial District Court
affirmed the Municipal Court’s decision, concluding that Smith’s arguments lacked
merit. Smith filed an appeal with this Court, which we dismissed because Smith’s appeal
was not timely.
¶3 Smith then filed the present postconviction relief proceeding in the District Court.
The court denied the petition, noting that most of the issues raised were “nothing more
than a rehash” of the legal issues ruled on by the District Court in its detailed opinion and
order, with the exception of a few appealable issues that Smith could have raised in his
direct appeal of the criminal action.
¶4 This Court reviews a district court’s denial of postconviction relief to determine
whether the court’s findings of fact are clearly erroneous and whether its conclusions of
law are correct. Hendricks v. State, 2006 MT 22, ¶ 10, 331 Mont. 47, ¶ 10, 128 P.3d
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1017, ¶ 10. “Res judicata bars relitigation, in a petition for postconviction relief, of
issues already determined on direct appeal . . . .” Smith v. State, 2000 MT 327, ¶ 27, 303
Mont. 47, ¶ 27, 15 P.3d 395, ¶ 27. Pursuant to § 46-21-105(2), MCA, a petitioner “who
has been afforded a direct appeal of his conviction [even if dismissed for a failure to
timely file] may not raise in a post-conviction petition grounds for relief that he could
reasonably have raised in his direct appeal. . . . [T]he procedural bar also applies to issues
which were not properly preserved at the trial level for appeal.” State v. Baker (1995),
272 Mont. 273, 281, 901 P.2d 54, 58. In light of the above law, we conclude that the
District Court correctly denied Smith’s petition for postconviction relief.
¶5 In addition, Smith maintains that Judge Edward McLean should have removed
himself from the case because he presided over Smith’s marital dissolution. We have
previously held that “the substitution of district judges is unavailable to a postconviction
relief petitioner” under § 46-21-101(2), MCA. Harris v. State, 2003 MT 258, ¶¶ 17-18,
317 Mont. 406, ¶¶ 17-18, 77 P.3d 272, ¶¶ 17-18.
¶6 We have determined to decide this case pursuant to Section 1, Paragraph 3(d) of
our 1996 Internal Operating Rules, as amended in 2003, which provides for
memorandum opinions. It is manifest on the face of the briefs and the record before us
that the appeal is without merit because the findings of fact are supported by substantial
evidence, the legal issues are clearly controlled by settled Montana law which the District
Court correctly interpreted, and there was clearly no abuse of discretion by the District
Court.
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¶7 We affirm the judgment of the District Court.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JIM RICE
/S/ BRIAN MORRIS
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Smith v. State
Combined Opinion