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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