No. 80-371
IN THE SURPEME COURT OF THE STATE OF MONTANA
1980
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
JACK G. STANDLEY,
Defendant and Appellant.
Appeal from: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable Arnold Olsen, Judge presiding.
Counsel of Record:
For Appellant:
Joseph C. Engel, 111, Butte, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
John G. Winston, County Attorney, Butte, Montana
Submitted on Briefs: October 23, 1980
Decided: April 1, 1981
Filed: -RPR 1 1981
Mr. Justice John C. Sheehy delivered the Opinion of
the Court.
Jack G. Standley appeals from a decision of the
District Court, Second Judicial District, Silver Bow County,
dismissing his petition for post-conviction relief.
Standley filed his petition for post-conviction relief
in the Silver Bow District Court on January 4, 1980,
relating to his 1956 rape conviction. At the tims, he was
and still is, an inmate at the Montana State Prison, serving
a sentence imposed on him for felony theft on December 2,
1978, in the Thirteenth Judicial District Court, Yellowstone
County. The sentence imposed was the maximum permissible
sentence. Standley appealed that conviction to this Court.
We affirmed his conviction, State v. Standley (1978), -
Mont . , 586 P.2d 1075, 35 St.Rep. 1361.
In his petition for post-conviction relief, Standley
requested the Second Judicial District Court, Silver Bow
County, to review its 1956 judgment of conviction against
him for rape. Standley contends that his plea of guilty to
the 1956 rape charge was made without the effective assis-
tance of counsel. Upon his plea of guilty to the rape
charge, he was sentenced to ten years in the Montana State
Prison. He fully served his sentence for that crime and was
released.
The rape conviction was considered by the Thirteenth
Judicial District Court, Yellowstone County, when that court
sentenced the defendant to the maximum sentence for felony
theft in 1978.
The District Court, Silver Bow County, dismissed
Standley's petition for post-conviction relief, concluding
that the issue is moot and that proper venue for the petition
should have been the Thirteenth Judicial District Court.
-2-
On those two grounds, the District Court was in error.
Section 46-21-101, MCA, expressly allows the petition for
post-conviction relief to be presented to ". . . the court
which imposed the sentence . . ." Therefore, venue of the
petition for post-conviction relief was proper in the Silver
Bow County District Court.
The Silver Bow County District Court found that the
petition for post-conviction relief was moot because the
ten-year sentence had been served. The United States Supreme
Court has held that a criminal case is not moot if there is
a possibility that any collateral legal consequence will be
imposed on the basis of the challenged conviction. Pollard
v. United States (1957), 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.
2d 393; St. Pierre v. United States (1943), 319 U.S. 41, 63
S.Ct. 910, 87 L.Ed. 1199. We held to the same effect in
Town of White Sulphur Springs v. Voise (1959), 136 Mont. 1,
343 P.2d 855. Here, the petition for post-conviction relief
is not moot sinply because the sentence has been served.
Section 46-21-102, MCA, provides that a petition for
post-conviction relief may be filed at any time after con-
viction. We held in In Re KcNair (1980), - Mont . -, 615
P.2d 916, 37 St.Rep. 1487, that section 46-21-102, meant
that no statute of limitations, no res judicata, and no
doctrine of laches is applicable. (615 P.2d at 917.) Yet
we are faced with much the same situation that this Court
faced McNair, in that there has been a long delay before the
petition for post-conviction relief has been filed. In the
McNair case, it was 8 1/2 years; in this case, 25 years have
elapsed since the conviction on the rape charge.
In McNair, we held that despite the inapplicability of
res judicata, laches, and any statute of limitations, the
long delay in filing the petition for post-conviction relief
raised the question of the good faith and credibility of the
applicant. We find that the same situation exists here. In
effect, the petition for post-conviction relief, if granted,
would require that defendant's plea of guilty entered to the
rape charge in 1956 be allowed to be withdrawn and the rape
charge tried on the merits, presuming a plea of not guilty
from the petitioner. The impracticality of such a pos-
sibility is manifest. We repeat the quotation from United
States v. Bostic (D.D.C. 1962), 206 F.Supp. 855, 856-57,
found in our McNair case:
"Obviously, the burden of proof on a motion
to vacate a sentence under 28 U.S.C. § 2255
is on the moving party, because there is
a presumption of regularity of the conviction.
The burden is particularly heavy if the issue
is one of fact and a long time has elapsed since
the trial of the case. While neither the statute
of limitations nor laches can bar the assertion
of a constitutional right, nevertheless, the
passage of time may make it impracticable to retry
a case if the motion is granted and a new trial
is ordered. No doubt, at times such a motion
is a product of an afterthought. Long delay
may raise a question of good faith."
The petitioner's record while serving his sentence for
rape speaks against his present contention about counsel.
After serving three years on the rape charge, he was paroled.
While on parole, he had a party at which five girls under
the age of 18 were in attendance. During the party, it was
charged that he sexually assaulted one of the juvenile
girls. Shortly after the incident, he left the State of
Montana and a warrant was issued for his arrest. He was
arrested in the State of Washington, and returned to Montana
as a parole violator, where he finished out his sentence.
He was released in 1968.
It might be considered unfair that the District Court
in Yellowstone County, in assessing the maximum penalty for
the felony theft charge, could consider the past record of
the petitioner, including his conviction for the rape charge
which he now attacks when the way is not osen for defendant
to secure post-conviction relief. The unfairness, if it
exists, is not of the State's making. The long delay in
petitioning for post-conviction relief over a 25-year period
can be attributed only to the petitioner. He must bear the
consequences.
The appeal is dismissed.
Justice
We Concur:
Chief Justice
0 Justice
This cause was submitted prior to January 5, 1981.
Mr. Justice Daniel J. Shea dissenting:
The result of the majority opinion is clear: petitioner
is thrown out of court without a hearing on the merits. I
fail, however, to make any sense of the opinion; it is illogical
and unfair.
The essence of the majority position is that a trial court
may sentence a man to a longer prison sentence because of a
conviction that occurred 22 years before the second sentence,
but that the defendant cannot challenge the legality of the
first conviction which has resulted in a longer prison sentence
after a second conviction 22 years later. If the State can use
a record 22 years ago to increase a prison sentence, fundamental
fairness requires that a defendant should also be able to
challenge the legality of that first conviction. But the majority
holds in effect that laches is a one-way street: it operates
against the defendant but does not operate against the State.
It is, furthermore, bad law to rule, without an evidentiary
record before this Court, that petitioner is guilty of bad faith
in waiting so long to file his petition for post-conviction
relief. Only after an evidentiary hearing and a ruling by the
trial court, should we as an appellate court be in a position
to review the evidence and ruling of the trial court on the
question of good versus bad faith. This decision again demonstrates
that this Court is abandoning its rule as an appellate court
and assuming the role of a trial court and appellate court rolled
into one.
The bad faith ruling of the majority, on closer analysis,
seems to be grounded on a belief that petitioner is guilty of
laches--a ground expressly acknowledged by the majority as not
being able to defeat a petition for post-conviction relief. At
one point, the opinion states: "In the McNair case, it was 8 1/2
years; in this case, 25 years have elapsed since the conviction
on the rape charge." At another point, the majority continues:
"The long delay in petitioning for post-conviction relief over
a 25-year period can be attributed only to the petitioner. He
must bear the consequences." This language is the language
of laches. I fail to see how the lapse of years by itself
establishes bad faith in filing a petition for post-conviction
relief. But that is the essence of the majority opinion.
Although the majority claimto follow In Re McNair (1980),
Mont . , 615 P.2d 916, 37 St.Rep. 1487, the opposite is
true--McNair is misread and misapplied. McNair holds in part,
that a petition for post-conviction relief cannot be defeated
by a claim of statute - limitations, res judicata, or laches.
of
(McNair, 615 P.2d at 917.) Because the majority acknowledges
this to be the law, I fail to see how petitioner can be thrown
out of court without a hearing on the merits. McNair, applied
here, means that petitioner cannot be thrown out of court as
a matter of law on grounds of a statute of limitations, of res
judicata, or of laches. Rather, he is entitled to a hearing
on the merits. Good faith or bad faith in filing the petition
is merely a factor to consider along with all the other factors
in determining whether a petitioner is entitled to relief. But
here the majority, without an evidentiary record, declares that
petitioner is guilty of bad faith, and throws him out of court
without a hearing. The majority ignores the fact that in McNair,
we ruled on the merits of petitioner's claim for post-conviction
relief.
If McNair is to be followed, it cannot be used as authority
to throw petitioner out of court without a hearing. Procedurally,
the situation in McNair at the time of our ruling on the merits,
is wholly unlike this case.
In McNair, the petitioner filed an original petition for
post-conviction relief before this Court rather than before
the District Court. Contrary to the implications of the
majority opinion here, we did not dismiss the McNair petition
because petitioner was guilty of bad faith. Rather, based on
-
the full record that was before us, we ruled - - merits -
on the of
his claim. We ruled that he was competent to enter a voluntary
and intelligent guilty plea, and we ruled that he had effective
assistance of counsel. (615 P.2d 919-920.)
In declining to remand the case to District Court for an
evidentiary hearing, we concluded that the record before us
was as complete as it could be, and therefore that it would
be a useless act to require an evidentiary hearing. (615 P.2d
919-920.) McNair, therefore, was a decision on the merits of
the petition. In contrast, petitioner here is denied a hearing
and ruling on the merits.
Petitioner's case did not come to this Court with a full
evidentiary development of his claimed constitutional violation.
In contrast to McNair, petitioner filed his petition in District
Court rather than before this Court, but he was thrown out on
the grounds of mootness and improper venue before there was ever
a hearing on the merits. The question before this Court is
simply whether he was properly thrown out of court on either the
mootness ground (which would preclude a further petition) or
on the venue ground (which would not preclude another petition
in the proper court). In response, this Court enters a strange
ruling: we rule that the District Court was wrong on both
rulings, but nonetheless, we decide, without a record, that
petitioner is guilty of bad faith and therefore throw him out
of court. This decision ignores the proper role of an appellate
court.
Nor does the majority accurately assess the legal
situation in concluding that the 25-year delay in filing
the petition "can be attributed only to the petitioner."
The majority ignores the fact that for at least 13 of those
years, petitioner had no legal standing to challenge the
1956 conviction, and that he acquired this standing only when
the Yellowstone County District Court used the 1956 conviction
as one of the reasons to impose the maximum sentence for the
1978 theft conviction. Proper application of the holding in
Town of White Sulphur Springs v. Voise (1959), 136 Mont. 1,
343 P.2d 855, leads to this conclusion.
In Voise, cited but ignored by the majority, this Court
held that where a collateral consequence will befall one as a
result of a previous conviction, he has standing to challenge
the legality of that conviction. We have not yet, however,
adopted the more liberal rule that allows a person at any time
to challenge a previous conviction, even if the sentence has
been fully served. This rule is based on the enlightened belief
that the desire to clear one's name provides sufficient standing.
See, 9 A.L.R.3d 462.
By the rationale of the Voise case (still ostensibly the
law in this state), petitioner could not challenge his conviction
between 1968 and minimally 1978. He was released from prison
in 1968 after serving the full sentence, and was not convicted
of theft until 1978. It was not until he was sentenced in 1978
that petitioner had standing to challenge the 1956 conviction,
because that conviction was used as a factor in the imposition
of the maximum 10-year sentence for theft.
Further, petitioner could not realistically challenge his
conviction until this Court finally ruled on the merits of his
1978 theft conviction. His main contention on appeal was that
accomplice testimony was insufficiently corroborated. If
he prevailed, it would require a reversal and dismissal. In
such event, under the Voise rationale, he could not challenge
the 1956 conviction. We upheld the theft conviction on
November 8, 1978, and denied the petition for rehearing on
December 14, 1978. State v. Standley (1978), - Mont .- I
586 P.2d 1075, 35 St.Rep. 1631. If petitioner had filed a
petition for post-conviction relief before his appeal was
decided, doubtless a district court or this Court would have
ruled that he must first await the outcome of his appeal. A
favorable ruling on his appeal would render his petition moot.
Therefore, if we eliminate the years that, under the
Voise rationale, cannot be held against petitioner in filing
his petition (1968-1980), 12 years remain (1956-1968) in which
petitioner could have filed a petition to overturn his 1956
conviction. I am unwilling to declare that he is guilty of
bad faith in not doing so in that 12-year period, and this is
especially so where there has been no evidentiary hearing.
It appears, however, that the majority adopts a policy
declaring that a long delay in filing a petition for post-
conviction relief automatically amounts to bad faith and bars
the right to a hearing on the merits. Such a policy is actually
based on laches. But whatever the case, an explanation is
particularly called for when, under the Voise rationale, only 12
of the 25 years can be assessed to the petitioner in determining
the good faith versus bad faith issue. But the majority has
ignored the logical application of Voise to petitioner's case.
Two other matters need to be mentioned. The majority refers
to petitioner's problems on parole and his parole revocation
for the apparent purpose of implying at least that he had
effective counsel in 1956 when he entered his guilty plea. But
there is no connection between a parole revocation sometime
after 1959 and a claim of ineffective assistance of counsel
arising in 1956. How can a parole revocation sometime after
1959 have any legitimate bearing on a claim that one was denied
effective assistance in 1956? Another apparent reason for
raising petitioner's parole problems and revocation, is to
declare in effect that petitioner must be a bad person and
therefore must have committed the rape in 1956 if he was charged
with sexual assault while out on parole. But petitioner was
never convicted of the sexual assault charge and we have no
basis in the record before us to determine that his parole
revocation was effectively an admission that he committed the
sexual assault. Aside from its irrelevance to the issue of
incompetent counsel in 1956, this is again getting into the
realm of fact-finding that is better left to the trial courts.
In quoting from McNair, which in turn quotes from United
States v. Bostic (D.D.C. 1962), 206 F.Supp. 855, the majority
fears that the prosecution will incur insurmountable difficulties
in presenting another case if petitioner succeeded in getting
his 1956 conviction set aside. I must agree that the difficulties
could well be insurmountable, but that is not an important factor
in this case. Petitioner has already served a full sentence
for that crime, and should he succeed in getting the 1956 con-
viction set aside, I doubt that any prosecutor would be interested
in taking the case to trial. What would be gained?
In concluding this dissent, I again, admit my inability
to analyze the majority decision. I fear, however, that under
the guise of bad faith, it has adopted a per-se laches rule
that will automatically bar post-conviction relief in situations
where an appreciable time has elapsed between the conviction
and the petition. If that is the holding, it will work a great
injustice in the long run.
I would reverse the District Court order and require
a full evidentiary hearing on the merits, with good faith
versus bad faith in the delay in bringing the petition, to be
considered as only one of the many factors that can be properly
considered.
I join in the foregoing dissent.
------------
Justice