NO. 95-292
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA,
Plaintiff and Respondent, iJE.\Ec 19 1995
v.
DEAN GARY CHRISTENSEN,
Defendant and Appellant.
APPEAL FROM: District Court of the Fifteenth Judicial District,
In and for the County of Sheridan,
The Honorable Richard G. Phillips, Judge presiding.
COUNSEL OF RECORD:
For Appellant: .\
Laura Christoffersen, Christoffersen &Knierim, Wolf
Point, Montana
For Respondent:
Joseph P. Mazurek, Attorney General, Pamela P.
Collins, Assistant Attorney General, Helena,
Montana; Steven Howard, Sheridan County Attorney,
Plentywood, Montana
Submitted on Briefs: November 30, 1995
Decided: December 19, 1995
Filed:
Justice William E. Hunt, Sr. delivered the Opinion of the Court.
Appellant Dean Gary Christensen appeals from the order of the
Fifteenth Judicial District Court, Sheridan County, dismissing his
petition for post-conviction relief.
We affirm.
The dispositive issue on appeal is whether Christensen's
petition for post-conviction relief is procedurally barred by § 46-
21-105(2), MCA.
In May of 1991, Christensen was arrested and charged with
reckless driving and operation of a motor vehicle by a habitual
traffic offender. After a bench trial on December 23, 1991, the
District Court found Christensen guilty of both charges, and
Christensen did not appeal his conviction.
In his petition for post-conviction relief, Christensen
contended that he had never waived his constitutional right to a
jury trial. He further contended that he did not appeal this issue
within the statutorily mandated period because both his attorney
and the judge wrongly told him that no appeal could be taken from
a city court bench trial.
Christensen filed a petition for post-conviction relief after
the time allotted for direct appeal had elapsed. His petition for
post-conviction relief initially was dismissed on different
procedural grounds. Christensen appealed that dismissal to this
Court, and we remanded the matter to the District Court for further
proceedings. See State v. Christensen (1994), 265 Mont. 374, 877
P.2d 468.
2
After an April 5, 1995 hearing, the District Court found that
Christensen had knowingly waived his right to a trial by jury. The
court further found that Christensen had been properly advised of
his right to appeal the issue but chose not to do so. The District
Court therefore dismissed Christensen's petition, and Christensen
appeals.
A convicted defendant who believes he received a sentence
which is invalid for jurisdictional, constitutional, or other legal
reasons may file a petition for post-conviction relief. Section
46-21-101, MCA. However, § 46-21-105(2), MCA, provides:
When a petitioner has been afforded a direct appeal of
the petitioner's conviction, grounds for relief that
could reasonably have been raised on direct appeal may
not be raised in the original or amended petition [for
post-conviction relief].
Citing this statute, the State contends that Christensen may not
petition for post-conviction relief based on his allegation that he
had not waived his right to a jury trial, because this issue could
have been raised by a direct appeal.
Christensen contends that he did not address the issue in a
direct appeal because both his lawyer and the presiding judge told
him that he had no right to appeal a city court bench trial.
Christensen asserts that by the time he found out he had a right to
appeal his city court conviction, the time allotted for an appeal
had passed. The State denied that Christensen was ever told by
either his attorney or the judge that he had no right to appeal.
The standard of review of a district court's denial of a
petition for post-conviction relief is whether substantial evidence
3
supports the court's findings and conclusions. State v. Baker
(Mont. 1995), 901 P.2d 54, 58, 52 St.Rep. 735, 737; State v. Coates
(1990), 241 Mont. 331, 336, 786 P.2d 1182, 1185. Because the
statements of the appellant, his attorney and the presiding judge
at the city court where he was convicted are in direct conflict,
the District Court was required to determine the credibility of the
witnesses and to rule accordingly. We have noted that "[iIf the
evidence conflicts, it is within the province of the trier of fact
to determine which shall prevail." State v. Medina (19901, 245
Mont. 25, 361, 798 P.2d 1032, 1038 (citing State v. Brown (1989),
239 Mont. 453, 781 P.2d 281). Further, the determination of the
trier of fact regarding the credibility of witnesses will not be
disturbed on appeal. State v. Moreno (1990), 241 Mont. 359, 361,
787 P.2d 334, 336.
At the hearing on the post-conviction petition, the District
Court heard testimony from Christensen, the attorney, and the city
court judge. The District Court found the testimony of the attorney
and the judge to be more credible than Christensen's, and further
found that Christensen had been properly advised of his right to
appeal. Christensen points to no evidence which would indicate
that the District Court's determination regarding credibility was
erroneous. We see no error in the District Court's findings.
Since Christensen could have raised this issue in a direct appeal,
he is prohibited by 5 46-21-105(2), MCA, from raising it in a post-
conviction petition.
4
Christensen further argues that the procedural bar of § 46-21-
105(2), MCA, is not absolute. He contends that arguments in favor
of its imposition are "technical" and "esoteric," and that this
Court should refuse to impose the bar if a constitutional right is
potentially at risk.
The procedural bar set out in § 4621-105(2), MCA, serves to
prevent abuses of the post-conviction process and to preserve the
integrity of the trial and the direct appeal procedure. In re
Petition of Manula (19931, 263 Mont. 166, 866 P.2d 1127. Because
the procedural bar is mandated by statute, it is not something we
may impose or decline to impose at will. However, this Court may
refuse to apply the procedural bar if a petitioner "can demonstrate
a fundamental miscarriage of justice." Baker, 901 P.2d at 59.
Christensen must demonstrate a fundamental miscarriage of
justice; it is not enough merely to allege one. In this case, the
District Court found that Christensen knew of his right to appeal
but chose not to do so. Christensen points to no evidence which
indicates that this factual finding of the District Court was
erroneous. He has not shown that application of the procedural bar
has or would result in a fundamental miscarriage of justice.
Accordingly, the dismissal of his petition for post-conviction
relief is affirmed.
Justice