April 8 2009
DA 08-0345
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 118N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JASON BRANDON BILBEISI,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC-04-101
Honorable Russell C. Fagg, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Kelly J. Varnes; Hendrickson, Everson, Noenning &
Woodward, P.C., Billings, Montana
For Appellee:
Hon. Steve Bullock, Montana Attorney General; Matthew T.
Cochenour, Assistant Attorney General, Helena, Montana
Dennis Paxinos, Yellowstone County Attorney, Billings, Montana
Submitted on Briefs: March 11, 2009
Decided: April 7, 2009
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), 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 Jason Brandon Bilbeisi appeals from the May 28, 2008 Order and Decision of the
Montana Thirteenth Judicial District Court, Yellowstone County, the Hon. Russell Fagg
presiding, denying his motion to withdraw his guilty plea to one count of sexual intercourse
without consent, a felony. We affirm.
¶3 Bilbeisi was charged in 2004 with two felony counts of sexual intercourse without
consent. In May, 2005, Bilbeisi and the State entered a plea bargain agreement in which he
agreed to plead guilty to one count of sexual intercourse without consent and the State
agreed to dismiss the other count. Bilbeisi was sentenced in October, 2005 in accordance
with the plea agreement. He did not appeal or seek any other form of post-conviction relief.
In September, 2007, Bilbeisi filed a motion to withdraw his guilty plea, contending that his
prior attorney should have pursued a motion to dismiss on speedy trial grounds and that the
guilty plea was not voluntary because of “psychological” issues.
¶4 Bilbeisi’s motion to withdraw his guilty plea is barred by § 46-16-105(2), MCA. That
statute gives a defendant one year after a judgment becomes final in which to move to
withdraw a guilty plea, upon a showing of good cause. The only exception to the one-year
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limitation is “when a claim of innocence is supported by evidence of a fundamental
miscarriage of justice.” Bilbeisi’s motion to withdraw his plea was filed long after the one-
year limitation period; he does not claim innocence; and he has not made any cogent
argument that there was a fundamental miscarriage of justice. Therefore his motion to
withdraw his plea is barred by § 46-16-105(2), MCA.
¶5 The District Court also evaluated Bilbeisi’s motion under the “good cause” standard
and found that he had not established grounds for withdrawing his plea. The District Court
found that the interrogation of Bilbeisi at the time he plead guilty was “quite adequate;” that
Bilbeisi had waited over two years to seek relief; that there was a voluntary plea agreement
that benefitted Bilbeisi by dismissing a felony charge; and. that the speedy trial motion had
been withdrawn as part of the plea agreement. Therefore, there was no demonstration of
good cause under State v. Warclub, 2005 MT 149, 327 Mont. 352, 114 P.3d 254 and State v.
Morgan, 2003 MT 193, 316 Mont. 509, 74 P.3d 1047. Having reviewed the order below and
the record, we find that the District Court properly denied Bilbeisi’s motion to withdraw his
guilty plea.
¶6 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our
1996 Internal Operating Rules, as amended in 2003, which provides for memorandum
opinions. The issues are clearly controlled by settled Montana law.
¶7 Affirmed.
/S/ MIKE McGRATH
We concur:
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/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
/S/ JIM RICE
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