10/11/2016
DA 15-0790
Case Number: DA 15-0790
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 259N
WALTER M. LARSON, JR.
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Seventh Judicial District,
In and For the County of Dawson, Cause No. DV 15-078
Honorable Richard A. Simonton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Walter M. Larson, Jr., Self-Represented, Shelby, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein,
Brant S. Light, Assistant Attorneys General, Helena, Montana
Olivia Norlin-Rieger, Dawson County Attorney, Glendive, Montana
Submitted on Briefs: August 17, 2016
Decided: October 11, 2016
Filed:
__________________________________________
Clerk
Justice Patricia Cotter delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by unpublished opinion and shall not be cited and does not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 Walter M. Larson, Jr., appearing pro se, appeals from a December 2015 order of
the Seventh Judicial District Court, Dawson County, denying his Petition for
Post-Conviction Relief. We affirm.
¶3 In 2013, Larson was convicted of deliberate homicide and tampering with
evidence. He appealed and we affirmed his convictions.1 In October 2015, Larson filed
a petition for post-conviction relief alleging he had received ineffective assistance of
counsel during his original trial, supported by an affidavit from him restating the
allegations contained in the petition. The District Court found that the petition, files, and
records of the case conclusively established that the petitioner was not entitled to relief,
and therefore dismissed the petition for failure to state a claim for relief in accordance
with § 46-21-201(1)(a), MCA. On appeal, Larson argues the District Court erred by
failing to hold an evidentiary hearing prior to dismissing his petition for post-conviction
relief, and by failing to appoint counsel to assist him during the post-conviction
proceeding.
1
State v. Larson, 2015 MT 271, ¶¶ 1, 42, 381 Mont. 94, 356 P.3d 488.
2
¶4 “We review a district court’s denial of a petition for post-conviction relief to
determine whether the court’s findings of fact are clearly erroneous and whether its
conclusions of law are correct.” Beach v. State, 2009 MT 398, ¶ 14, 353 Mont. 411, 220
P.3d 667. “We review discretionary rulings in post-conviction relief proceedings,
including rulings related to whether to hold an evidentiary hearing, for an abuse of
discretion.” Beach, ¶ 14.
¶5 A district court may “dismiss a PCR petition without ordering a response if the
petition and records conclusively show that the petitioner is not entitled to relief.”
Marble v. State, 2015 MT 242, ¶ 38, 380 Mont. 366, 355 P.3d 742 (internal quotations
omitted). Further, a court may “dismiss a petition without holding a hearing if the
petition fails to satisfy the procedural threshold set forth in § 46-21-104(1)(c), MCA.”
Marble, ¶ 38. A post-conviction 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.” Section 46-21-104(1)(c), MCA. “Mere
conclusory allegations are insufficient to support the petition.” Beach, ¶ 16. This Court
has consistently held that while a certain amount of latitude may be given to pro se
litigants, it is nonetheless reasonable to expect such litigants to adhere to procedural
rules. Greenup v. Russell, 2000 MT 154, ¶ 15, 300 Mont. 136, 3 P.3d 124.
¶6 After reviewing the petition, affidavits, and record in this case, we determine that
the District Court did not abuse its discretion in refusing to hold an evidentiary hearing
and dismissing the petition for failure to state a claim upon which relief may be granted.
3
¶7 As noted, Petitioner argues that the District Court erred in not appointing counsel
to assist him in the post-conviction proceeding. The right to counsel expires following
the conclusion of a direct appeal. Section 46-8-103(1), MCA. A district court’s
assignment of counsel after the conclusion of a direct appeal is discretionary and
governed by § 46-8-104, MCA. Further, § 46-21-201(2), MCA, dealing with
proceedings on a post-conviction petition, provides that
If the death sentence has not been imposed and a hearing is required or if
the interests of justice require, the court shall order the office of state public
defender, provided for in 47-1-201, to assign counsel for a petitioner who
qualifies for the assignment of counsel under Title 46, chapter 8, part 1, and
the Montana Public Defender Act, Title 47, chapter 1.
Because the District Court determined that a hearing was not required and that the
petition failed to state a claim upon which relief could be granted, the District Court was
not required to appoint counsel to assist the Petitioner.
¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for unpublished opinions. In the opinion of
this Court, this case presents a question controlled by settled law.
¶9 Affirmed.
/S/ PATRICIA COTTER
We Concur:
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE
4
W. Larson Jr. v. State
Combined Opinion