August 23 2011
DA 11-0184
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 207N
ERIC R. SMITH,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DV-10-1686
Honorable Edward P. McLean, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Eric R. Smith (Self-Represented), Missoula, Montana
For Appellee:
Steve Bullock, Montana Attorney General; C. Mark Fowler, Assistant
Attorney General, Helena, Montana
Fred Van Valkenburg, Missoula County Attorney, Susan E. Boylan,
Deputy County Attorney, Missoula, Montana
Submitted on Briefs: August 3, 2011
Decided: August 23, 2011
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal
Operating Rules, this case is decided by memorandum opinion and shall not be cited
and does not serve as precedent. Its case title, 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 Eric Smith appeals the Fourth Judicial District Court’s denial of his petition for
postconviction relief. We affirm.
ISSUE
¶3 The dispositive issue on appeal is whether the District Court erred when it
denied Smith’s petition for postconviction relief on the grounds that it was not timely
filed.
STANDARD OF REVIEW
¶4 We review a district court’s findings of fact for clear error in postconviction
relief proceedings and its conclusions of law for correctness. Rogers v. State, 2011 MT
105, ¶ 12, 360 Mont. 334, 253 P.3d 889.
DISCUSSION
¶5 In December 2002, Smith, a self-represented litigant, was tried and convicted by
a jury in the Missoula Municipal Court of misdemeanor indecent exposure for allegedly
masturbating in front of his then four-year-old daughter. Smith appealed and in
September 2003 the Fourth Judicial District Court affirmed the Municipal Court’s
decision. Smith appealed the District Court’s decision and this Court dismissed his
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appeal as untimely. Smith’s conviction became final upon the expiration of the time for
petitioning the United States Supreme Court for review of our decision, which occurred
in 2004. Section 46-21-102(1)(b), MCA.
¶6 Smith filed a postconviction relief (PCR) petition in the District Court. The
District Court denied the petition without a hearing. This Court affirmed the District
Court’s ruling. Smith filed a second PCR, and again the District Court denied it
without a hearing. In May 2006, this Court affirmed the District Court’s denial. On
December 16, 2010, Smith filed his third PCR claiming “newly discovered evidence.”
The District Court dismissed the PCR because it was not filed within one year of the
date his conviction became final. It is from this ruling that Smith now appeals.
¶7 As noted by the District Court, a petition for postconviction relief must be filed
within one year of the date on which a defendant’s conviction becomes final. Section
46-21-102(1), MCA. However, under § 46-21-102(2), MCA, a defendant may file a
later PCR petition if he or she is alleging the discovery of new evidence that would
establish the defendant did not engage in the criminal activity for which he or she was
convicted. Such a PCR petition must be filed within one year of the discovery of the
new evidence. Smith’s claim of newly discovered evidence is unpersuasive. The
District Court therefore correctly denied Smith’s PCR as untimely.
¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our Internal Operating Rules, which provides for noncitable memorandum opinions.
The issue in this case is legal and is controlled by settled Montana law which the
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District Court correctly interpreted. We affirm the District Court as to the remaining
issue.
/S/ PATRICIA COTTER
We concur:
/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
/S/ JIM RICE
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