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RACZ v. State

Court: Montana Supreme Court
Date filed: 2009-10-27
Citations: 222 P.3d 644
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                                                                                       October 27 2009




                                           DA 09-0204

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2009 MT 357N



PAUL LASZLO RACZ,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

               Respondent and Appellee.


APPEAL FROM:          District Court of the Thirteenth Judicial District,
                      In and For the County of Yellowstone, Cause No. DV 08-1811
                      Honorable Gregory R. Todd, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Paul Laszlo Racz, Pro Se; Shelby, Montana

               For Appellee:

                      Hon. Steve Bullock, Montana Attorney General; John A. Paulson,
                      Assistant Attorney General; Helena, Montana

                      Dennis Paxinos; Yellowstone County Attorney; Billings, Montana



                                                  Submitted on Briefs: September 16, 2009

                                                             Decided: October 27, 2009


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     Paul Laszlo Racz (Racz) was convicted of criminal drug possession and sentenced

to ten years in state prison with five suspended. Racz appeals pro se from the dismissal

of his postconviction relief by the Thirteenth Judicial District Court in Yellowstone

County. We affirm.

¶3     The issue on appeal is whether the District Court properly dismissed Racz’s pro se

petition for postconviction relief. We review a district court’s denial of a petition for

postconviction relief to determine whether the district court’s findings of fact are clearly

erroneous and whether its conclusions of law are correct. Hirt v. State, 2009 MT 116,

¶ 24, 350 Mont. 162, 206 P.3d 908.

¶4     In January 2007, Paul Laszlo Racz was convicted of Criminal Possession of

Dangerous Drugs and sentenced to ten years in prison with five suspended. At trial, Racz

was represented by attorneys Tanya Dvarishkis and Miora D’Alton. Racz appealed to the

Supreme Court and we affirmed Racz’s conviction in September 2007. In December

2008, Racz fild a petition for postconviction relief. In its February 2009 Order, the

District Court denied postconviction relief and dismissed the petition. Racz now appeals


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from the Thirteenth Judicial District Court’s dismissal of his petition for postconviction

relief.

¶5        In June 2005, Racz and his companion, Sheila Velarde, were temporarily detained

by Billings police officers while the officers investigated the ownership of personal

property in the car. Racz was handcuffed and placed in a patrol car. When the officers

found that none of the items had been reported stolen, the officers released Racz. After

removing Racz from the patrol car, an officer checked the back seat and found a baggie

of methamphetamine similar to baggies found in a black purse in Velarde’s possession.

Racz was arrested and tried before a jury.            He was convicted of possessing

methamphetamine. At the sentencing hearing, Racz claimed his trial attorneys were

ineffective by failing to obtain fingerprint evidence from the baggies and failing to obtain

videotapes from the patrol cars. On appeal, Racz claims ineffective assistance of counsel,

mishandling of evidence, and makes broad arguments regarding official misconduct,

fraud, deceit, and prosecutorial misconduct. Racz asserts that the prosecutors, police, and

his attorneys conspired to have him convicted.

¶6        Under § 46-21-104(1)(a), MCA, a district court may dismiss a petition for

postconviction relief as a matter of law for failure to state a claim for relief. Subsection

(c) states that a postconviction relief petition must “identify all facts supporting the

grounds for relief set forth in the petition and have attached affidavits, records, or other

evidence establishing the existence of those facts.” Mere allegations do not constitute the

“evidence” required under the statute. State v. Finley, 2002 MT 288, ¶ 9, 312 Mont. 493,

59 P.3d 1132. The District Court accurately determined that Racz provides no factual


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basis for the allegations raised. Racz claims that Billings police officers framed him, but

his only support is a lost supplemental police report. The fact that the report was lost

does not support Racz’s argument that he was framed.

¶7     Claims of ineffective assistance of counsel must be grounded in facts in the record

and not simply conclusory allegations. Vernon Kills on Top v. State, 279 Mont. 384, 396,

928 P.2d 182, 189 (1996). Trial counsel defended against the possession charge by

arguing that the police officers mishandled the evidence and failed to test for fingerprints.

Racz claims his attorneys conspired with the prosecutors and police to frame and convict

him of a crime he didn’t commit. These conclusory allegation are not sufficient to make

an ineffective assistance of counsel claim.

¶8     We have determined it is appropriate to decide this case pursuant to our Order of

February 11, 2003, amending Section 1.3 of our 1996 Internal Operating Rules and

providing for memorandum opinions.

¶9     Affirmed.

                                                  /S/ W. WILLIAM LEAPHART


We concur:

/S/ MIKE McGRATH
/S/ PATRICIA O. COTTER
/S/ JIM RICE
/S/ BRIAN MORRIS




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