December 27 2012
DA 12-0291
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 315N
GORDON SEES THE GROUND, JR.,
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 12-0444
Honorable Gregory R. Todd, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Gordon Sees The Ground, Jr. (self-represented), Shelby, Montana
For Appellee:
Steve Bullock, Montana Attorney General; Mark Mattioli, Assistant Attorney
General, Helena, Montana
Scott Twito, Yellowstone County Attorney, Billings, Montana
Submitted on Briefs: December 4, 2012
Decided: December 27, 2012
Filed:
__________________________________________
Clerk
Justice Michael E Wheat 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 Gordon Sees The Ground, Jr., (“Gordon”) appeals from the District Court’s Order
dated April 13, 2012, denying his petition for post-conviction relief. We affirm.
¶3 Gordon’s most recent motion for post-conviction relief stems from his February 18,
2010, conviction for perjury. Gordon’s conviction for perjury itself stems from his earlier
conviction for Felony DUI and Driving with a Suspended or Revoked License (“DWS”) on
December 12, 2008, a decision which we affirmed in State v. Sees The Ground, 2009 MT
375N, 2009 Mont. LEXIS 520. In that case, Billings police officers found Gordon asleep
behind the wheel of a car with the key in the ignition in the “on” position and beer cans on
the floor. Contrary to this physical evidence, Gordon testified at trial that Orrie Plainbull
(“Orrie”) had been the driver of the car, asserting that they had been riding around together
from approximately 9:00 a.m. until shortly before Gordon was found asleep at 3:30 p.m.
Despite this testimony, Gordon was convicted of DUI and DWS on December 12, 2008. The
State subsequently charged Gordon with perjury based on his testimony that Orrie had been
the driver of the car.
¶4 At Gordon’s trial for perjury, Michael Domke testified that he had called 911 at
approximately 1:30 p.m. on February 1, 2008, after seeing a man fall and hit his head after
exiting a vehicle. The injured man was apparently Orrie, and staff from the Billings Medical
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Clinic testified that Orrie received treatment from around 1:30 p.m. until roughly 4:30 p.m.
on the day of Gordon’s arrest. This testimony contradicted Gordon’s prior claim that Orrie
had been driving the car shortly before Gordon was found. Gordon was subsequently
convicted of perjury on February 18, 2010, and was sentenced on May 11, 2010, to ten years
in state prison. Gordon appealed his conviction, but the appeal was later withdrawn.
¶5 Gordon thereafter filed a Motion for Post-Conviction Relief on March 21, 2012.
Section 46-21-102(1), MCA, requires that a petition for post-conviction relief must be filed
within one year of the date that the conviction became final. For the purposes of § 46-21-
102(1), MCA, a conviction becomes final when the time for appeal to this Court expires, or
if an appeal to this Court was taken, when the time for petitioning the United States Supreme
Court for review expires, or the date that the U.S. Supreme Court issues its final order in the
case. The District Court determined that Gordon’s petition was time barred, and we agree.
¶6 While Gordon’s March 21, 2012, petition for post-conviction relief was presumably
aimed at his February 18, 2010, conviction for perjury, the grounds for relief Gordon
asserted in the petition dealt entirely with his December 12, 2008, conviction for DUI and
DWS. Specifically, the petition alleges that Gordon’s DUI/DWS trial counsel provided
ineffective assistance by suborning his own perjury while further claiming that a newly
discovered witness could establish that Orrie was the driver of the vehicle immediately prior
to Gordon’s arrest. Gordon claims he discovered the new evidence in May of 2010, but §
46-21-102(2), MCA, states that newly discovered evidence may only be raised within one
year of either the date on which the conviction became final or the date on which the
petitioner discovered the evidence. Similarly, Gordon’s claim concerning his DUI trial
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counsel references a conviction that became final on February 3, 2011. The allegations in
Gordon’s petition most clearly reference his DUI conviction, and that conviction, and the
newly discovered evidence Gordon claims relates to it, occurred more than one year before
the date the petition was filed. Therefore, the District Court properly denied Gordon’s
petition pursuant to § 46-21-102, MCA.
¶7 The issues in this case are legal and are controlled by settled Montana law, which the
District Court correctly interpreted.
¶8 Affirmed.
/S/ MICHAEL E WHEAT
We Concur:
/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
/S/ BETH BAKER
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