DA 06-0331
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 207
GEORGE HAROLD DAVIS,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Respondent.
APPEAL FROM: District Court of the Fifth Judicial District,
In and For the County of Madison, Cause No. DC-29-03-13
Honorable Loren Tucker, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
William Boggs, Attorney at Law, Missoula, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Pamela P. Collins,
Assistant Attorney General, Helena, Montana
Submitted on Briefs: January 24, 2007
Decided: August 21, 2007
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 George Harold Davis (Davis) appeals from the order of the Fifth Judicial District
Court, Madison County, denying his motion to reconsider the court’s earlier order
denying his motion for appointment of counsel. We affirm.
¶2 The sole issue on appeal is whether the District Court erred in denying Davis’
motion to reconsider.
BACKGROUND
¶3 On March 29, 2004, Davis pled guilty to one count of deliberate homicide and six
counts of attempted deliberate homicide. The District Court sentenced Davis to life
imprisonment in the Montana State Prison without the possibility of parole on each of the
seven counts, with the sentences to run concurrently. The District Court entered its
written judgment on the convictions and sentences on September 9, 2004. Davis did not
appeal from the judgment.
¶4 On September 27, 2005, Davis, acting on his own behalf, moved the District Court
to appoint him counsel “for the purpose of seeking post-conviction relief . . . .” The
District Court denied the motion for appointment of counsel on December 2, 2005. On
March 2, 2006, Davis—acting through counsel appointed to represent him in a separate
proceeding in Missoula County—moved the District Court to vacate its December of
2005 order denying his request for counsel, reconsider his request for appointment of
counsel to pursue postconviction proceedings and declare the statute of limitations
governing the filing of postconviction relief petitions equitably tolled as of September 27,
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2005, the date on which he filed his original motion for appointment of counsel. The
District Court denied this motion, concluding Davis had failed to establish that the court’s
prior order denying his request for counsel was erroneous. Davis appeals.
STANDARD OF REVIEW
¶5 In appealing from the District Court’s order denying his motion to vacate the
court’s prior order concerning denial of appointment of counsel, Davis challenges various
of the District Court’s conclusions of law, including its interpretation and application of
several statutes. We review a district court’s conclusions of law to determine whether
those conclusions are correct. State v. Brockway, 2005 MT 179, ¶ 8, 328 Mont. 5, ¶ 8,
116 P.3d 788, ¶ 8.
DISCUSSION
¶6 Did the District Court err in denying Davis’ motion to reconsider?
¶7 Davis appeals from the District Court’s order denying his motion that the court
reconsider its December 2, 2005, order denying Davis’ motion for appointment of
counsel to pursue postconviction relief. The District Court denied Davis’ motion to
reconsider based on its conclusion that Davis failed to establish that the court’s rationale
in denying his original motion for appointment of counsel was incorrect. Thus, in
reviewing whether the District Court erred in denying Davis’ motion to reconsider, we
must review the District Court’s underlying determinations in its December of 2005 order
denying appointment of counsel.
¶8 In its December 2, 2005, order, the District Court first determined that Davis was
required to file any postconviction relief petition by September 7, 2005. Therefore,
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according to the court, by the time Davis filed his motion for appointment of counsel on
September 27, 2005, the time in which to file for postconviction relief had expired and
“[a]bsent an opportunity to apply for post conviction relief, there is no merit in
appointing counsel.” Davis contends that the District Court erred in determining that the
time in which to file a postconviction relief petition expired on September 7, 2005, and
we agree.
¶9 A petition for postconviction relief may be filed at any time within one year of the
date on which a defendant’s conviction becomes final. Section 46-21-102(1), MCA.
Where a defendant does not appeal from his or her conviction, the conviction becomes
final when the time for such an appeal to this Court expires. Section 46-21-102(1)(a),
MCA. The time for appeal to this Court expires 60 days from the date of entry of
judgment. M. R. App. P. 5(b). The written judgment on Davis’ convictions and
sentences in this case was filed on September 9, 2004; therefore, the time within which to
appeal to this Court expired on November 8, 2004. Consequently, Davis had until
November 8, 2005, in which to file for postconviction relief. As a result, when Davis
filed his motion for appointment of counsel on September 27, 2005, there were still 42
days left in which he could timely file for postconviction relief and the District Court’s
conclusion to the contrary was erroneous.
¶10 The District Court, however, provided an alternative rationale for its refusal to
appoint counsel in its 2005 order. The District Court determined it could appoint counsel
only in the event Davis had requested relief by filing a petition which appeared to
demonstrate good cause and entitlement to postconviction relief. The District Court
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further observed that Davis’ motion for appointment of counsel was not technically
sufficient to constitute a postconviction relief petition and Davis had filed no other
document purporting to be a postconviction relief petition. On that basis, the District
Court concluded that it could not appoint counsel for Davis under the circumstances.
Again, Davis asserts error.
¶11 Davis concedes that his motion for appointment of counsel did not constitute a
petition for postconviction relief and he filed no other document which would constitute
such a petition. He asserts, however, that the District Court erred in concluding that
Davis was required to file a petition prior to being appointed counsel to pursue
postconviction relief. He points out that, in his motion, he requested counsel be
appointed pursuant to § 46-8-104, MCA, and that this statute does not require that a
formal postconviction relief petition be filed before counsel may be appointed. Rather,
according to Davis, the language of the statute clearly provides that counsel may be
appointed at any time subsequent to a conviction when a defendant is considering
pursuing a postconviction action. On this point, however, we disagree.
¶12 Section 46-8-104, MCA, provides that a court of record may assign counsel “to
defend any defendant, petitioner, or appellant in any postconviction criminal action or
proceeding if [he] desires counsel and is unable to employ counsel.” In construing this
statute, we must apply the plain meaning of the words used by the Montana Legislature,
without omitting or inserting language. See § 1-2-101, MCA. The statute clearly states
that counsel may be assigned “in any postconviction criminal action or proceeding . . . .”
The word “in” is defined, insofar as is applicable here, as “[d]uring the act or process of .
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. . .” American Heritage Dictionary 883 (4th ed., Houghton Mifflin Co. 2000). Applying
this definition, § 46-8-104, MCA, provides that counsel may be assigned during the act or
process of “any postconviction criminal action or proceeding . . . .” Thus, contrary to
Davis’ assertion, we conclude the plain language of this statute requires that an action or
proceeding for postconviction relief be commenced—in other words, that a proceeding
exist—prior to consideration of a motion for appointed counsel in the proceeding.
¶13 The statute specifically addressing appointment of counsel in postconviction
proceedings also clearly indicates the Legislature’s intent in this regard. Section 46-21-
201(2), MCA, provides that, “[i]f the death sentence has not been imposed and a hearing
is required or if the interests of justice require, the court shall order the office of the state
public defender . . . to assign counsel for a petitioner [for postconviction relief] who
qualifies for the assignment of counsel under Title 46, chapter 8, part 1 . . . .” Before a
trial court can determine whether a hearing is required or the interests of justice require
appointment of counsel, it must be presented with a postconviction relief petition setting
forth the claims asserted and the facts and evidence supporting those claims. See § 46-
21-104, MCA.
¶14 We conclude that the District Court did not err in determining that Davis was
required to file a petition for postconviction relief before the court could consider his
motion to appoint counsel in the postconviction proceeding, and in denying appointment
of counsel because Davis had not filed a valid petition. We further conclude, therefore,
that the District Court did not err in denying Davis’ motion to reconsider its December of
2005 order on that basis.
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¶15 Davis also argues that the District Court erred in denying his request to equitably
toll the statute of limitations for filing a postconviction relief petition as of September 27,
2005, the date on which he filed his motion for appointment of counsel. Davis first
argues that “[a]s a reasonable lay person, Mr. Davis would have supposed he was not
required—or even allowed—to do anything further about a petition, until the court ruled
on his request for counsel.” He further contends that the District Court’s actions—in
failing to rule on his motion for appointment of counsel until after the statute of
limitations for filing for postconviction relief had run, treating his motion as a
postconviction relief petition and denying it on the basis it was not technically sufficient
as such, and determining the statute of limitations for postconviction relief had run at the
time he filed his motion for appointment of counsel—violated his right to procedural due
process under Article II, Section 17 of the Montana Constitution and requires equitable
relief.
¶16 We observe at the outset that the District Court did not indicate to Davis in any
way that the time in which to file a postconviction relief petition would be tolled during
the period in which it considered his motion for appointment of counsel, and Davis points
to no other basis supporting his assumption that he could wait for the District Court’s
ruling before filing his petition. Although Davis filed a motion for appointment of
counsel, he filed no other document meeting the time and content requirements for a
postconviction relief petition contained in §§ 46-21-102 and -104, MCA. He simply took
no action to preserve his ability to petition for postconviction relief.
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¶17 Furthermore, Davis did not argue in the District Court that an alleged violation of
his constitutional procedural due process right required equitable tolling of the statute of
limitations. We do not address new arguments and changes of legal theory on appeal
because it is fundamentally unfair to fault a district court on an issue it was never given
an opportunity to address. See, e.g., State v. Gomez, 2007 MT 111, ¶ 21, 337 Mont. 219,
¶ 21, 158 P.3d 442, ¶ 21; State v. Long, 2005 MT 130, ¶ 35, 327 Mont. 238, ¶ 35, 113
P.3d 290, ¶ 35. Consequently, we decline to address Davis’ constitutional due process
argument.
¶18 We hold that the District Court did not err in denying Davis’ motion to reconsider.
¶19 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ BRIAN MORRIS
/S/ JOHN WARNER
/S/ JIM RICE
Justice W. William Leaphart dissenting.
¶20 I dissent. There is merit to Davis’s argument that the statute of limitations should
be equitably tolled under the circumstances of this case.
¶21 As the Court notes, Davis had until November 8, 2005, to file a petition for
postconviction relief. Some forty-two days prior to that deadline, he filed a request for
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appointment of counsel. On December 2, 2005, the District Court, erroneously believing
that Davis’s time to file had already expired, belatedly denied his request as untimely. As
this Court notes, the District Court also gave an alternative rationale for denying the
request—that is, it could only appoint counsel if Davis had filed a petition demonstrating
entitlement to postconviction relief. In latching onto that procedural rationale, the Court
is demanding a degree of sophistication beyond the ken of a pro se litigant.
¶22 Davis requested appointment of counsel so that counsel could prepare the
appropriate postconviction pleadings for him. It would be counter-intuitive for Davis to
realize, as this Court would require, that, even though his request for counsel was still
pending, he had to take the initiative and file the very pleadings he wanted counsel to
draft in the first instance. A reasonable person, lay or professional, would assume that if
one’s motion for counsel is deficient or without merit, the court would say so in a timely
fashion so that one could then correct the deficiency or file pro se within the applicable
time period. Here, the court, by not acting in a timely fashion, lulled Davis into thinking
that his motion for counsel was still viable.
¶23 Notably, the reason the District Court did not rule on Davis’s motion before
November 2005 is that the court mistakenly thought the statute of limitations had already
expired. Curiously, this Court forgives the District Court’s error and then faults Davis for
not having previously argued equitable tolling because “it is fundamentally unfair to fault
a district court on an issue it was never given an opportunity to address.” The question,
however, is not whether the District Court has been treated fairly, but whether the system
has been fair and equitable to the defendant. I suggest that it is fundamentally unfair to
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fault a lay person for not filing pro se when that person has a pending request for counsel
for the purpose of preparing the very papers that the Court now says should have been
filed earlier. In effect, the court system is telling Davis, “Sorry for the delay in ruling on
your motion for counsel; it is hereby denied. And by the way, it’s now too late for you to
proceed without counsel.” Captain Yossarian is no doubt smiling.
/S/ W. WILLIAM LEAPHART
Justice Patricia Cotter and Justice James C. Nelson join in the dissenting opinion of
Justice Leaphart.
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
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