January 12 2010
DA 09-0292
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 5N
BOBBY JOE PRICE,
Petitioner and Appellant,
v.
MIKE MAHONEY, Warden,
and STATE OF MONTANA,
Respondents and Appellees.
APPEAL FROM: District Court of the Third Judicial District,
In and For the County of Powell, Cause No. DV 08-117
Honorable Ray J. Dayton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Patrick F. Flaherty, Attorney at Law; Great Falls, Montana
For Appellees:
Hon. Steve Bullock, Montana Attorney General; Mark W. Mattioli,
Assistant Attorney General; Helena, Montana
Dennis Paxinos, Yellowstone County Attorney; Billings, Montana
Lewis Smith, Powell County Attorney
Submitted on Briefs: November 25, 2009
Decided: January 12, 2010
Filed:
__________________________________________
Clerk
Justice W. William Leaphart 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 2006, 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 We consider on appeal whether the Third Judicial District Court properly
dismissed the claims of Appellant, Bobby Joe Price.
¶3 On November 1, 1994, following an entry of an Alford plea to Attempted
Deliberate Homicide, Price was convicted and sentenced to 110 years in prison, subject
to a 25-year parole restriction. Price executed an Acknowledgement of Waiver of Rights
stating he was satisfied with the services and advice of his attorney and that his plea of
guilty was entered freely and voluntarily. He appealed to the Montana Supreme Court
and we dismissed the appeal.
¶4 Fourteen years later, on December 24, 2008, Price filed a “Petition for Writ of
Habeas Corpus, Or in The Alternative, For Post-Conviction Relief” in Powell County.
The District Court dismissed the petition, concluding that Price’s claims for Post-
Conviction Relief were “unfounded, procedurally barred, time barred and filed in the
wrong county and court.” Price now appeals the District Court’s ruling. We affirm.
¶5 Section 46-21-102, MCA, provides for a one-year time limit on petitions for relief.
Price’s claims are barred by both the one-year and the former 5-year post-conviction time
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bar. Price does not present a colorable claim of actual innocence based on newly-
discovered evidence for the purposes of § 46-21-102(2), MCA. Section 46-21-105(2),
MCA, provides that “grounds for relief that were or could reasonably have been raised on
direct appeal may not be raised, considered, or decided” in post-conviction proceedings.
Price’s record-based claims are therefore barred. These claims include his ineffective
assistance of counsel claims, his claim that the sentence is facially invalid, his claims
regarding the validity of the Alford plea, his deficient State proof claims, and his claim
that the court did not engage in a sufficient plea colloquy.
¶6 Lastly, absent cases involving a claim of innocence supported by evidence of a
“fundamental miscarriage of justice,” the legislature requires that a motion to withdraw a
guilty plea be filed within one year. Section 46-16-105(2), MCA. Prior to the
codification of the one-year standard, we generally considered motions untimely if they
were not filed within a year, absent “exceptional circumstances.” See e.g. State v.
Morgan, 2003 MT 193, ¶ 17, 316 Mont. 509, 515, 74 P.3d 1047, 1051. Under the
traditional and now statutory one-year requirement, Price’s 14-year-later withdrawal does
not constitute a timely motion to withdraw his plea.
¶7 We have determined to decide this case pursuant to Section I, Paragraph 3(d)(v) of
our 1996 Internal Operating Rules, as amended in 2006, which provides for
memorandum opinions.
¶8 Affirmed.
/S/ W. WILLIAM LEAPHART
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We concur:
/S/ PATRICIA O. COTTER
/S/ JAMES C. NELSON
/S/ JIM RICE
/S/ BRIAN MORRIS
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