                                                                                         April 24 2012


                                          DA 11-0345

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2012 MT 92N



LEWIS GALE THORP,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.


APPEAL FROM:          District Court of the Sixteenth Judicial District,
                      In and For the County of Custer, Cause No. DV 2011-17
                      Honorable Gary L. Day, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Lewis Gale Thorp, (self-represented litigant); Shelby, Montana

               For Appellee:

                      Steve Bullock, Montana Attorney General; Matthew T. Cochenour,
                      Assistant Attorney General, Helena, Montana

                      Wyatt Glade, Custer County Attorney, Miles City, Montana



                                                   Submitted on Briefs: March 21, 2012

                                                              Decided: April 24, 2012


Filed:

                      __________________________________________
                                        Clerk
Chief Justice Mike McGrath 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     In January 2009, Louis Gale Thorp (Thorp) was convicted by jury of one count of

sexual intercourse without consent in the Sixteenth Judicial District Court, Custer

County, for the rape of a fifteen-year-old girl. The District Court sentenced Thorp to life

in the Montana State Prison without the possibility of parole. On February 6, 2009,

Thorp filed a motion for a new trial pursuant to § 46-16-702, MCA, arguing that the State

improperly vouched for the victim’s credibility. He also argued that the court used an

improper jury instruction for “without consent” and improperly admitted other acts

evidence. The District Court denied Thorp’s motion, and this Court affirmed. State v.

Thorp, 2010 MT 92, 356 Mont. 150, 231 P.3d 1096 (hereinafter Thorp I).

¶3     In Thorp I, we held that the witness law enforcement officer’s response that the

victim’s story “seemed credible” did not warrant plain error review. Thorp I, ¶ 25.

Rather, a cautionary instruction was sufficient under the circumstances to remedy any

alleged infringement on Thorp’s right to a fair trial. Thorp I, ¶¶ 29-30. It was not an

abuse of discretion to allow testimony regarding Thorp’s admission of an alleged oral sex

act on him by the victim, because Thorp’s own counsel participated in the line of

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questioning that gave rise to the unexpected testimony. Thorp I, ¶ 40. Finally, we held

that the court’s jury instructions fully and fairly instructed the jury, and that Thorp’s

sentence fell within the statutory guidelines for his offense. Thorp I, ¶¶ 37, 43.

¶4     Thorp then filed for post-conviction relief, alleging ineffective assistance of

counsel (IAC), that the State had impermissibly vouched for the victim’s credibility, and

that the testimony regarding oral sex constituted material evidence improperly withheld

by the prosecution. On April 21, 2011, the District Court denied Thorp’s petition,

concluding that all claims had either been addressed on appeal or were record based and

should have been raised on direct appeal. The District Court later denied another motion

to reinstate the petition, finding that Thorp was simply rearguing issues that had been

decided.   He now appeals from the orders of the District Court alleging several

constitutional violations in addition to re-raising the issues that he did in his petition for

post-conviction relief.

¶5     Thorp makes a single allegation in support of his IAC claim. He alleges that his

attorneys did not believe in his innocence as evidenced by statements they made to

prosecutors that two State’s witnesses could be incriminating themselves based upon

their proposed testimony. The District Court found that these claims were record based

and should have been brought on direct appeal. We agree. When a petitioner has been

afforded the opportunity for a direct appeal of a conviction, grounds for relief that were

or could reasonably have been raised on direct appeal may not be raised in a petition for

post-conviction relief. Section 46-21-105(2), MCA; see also Ellenburg v. Chase, 2004

MT 66, ¶ 19, 320 Mont. 315, 87 P.3d 473.

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¶6     As for the claim that the State impermissibly vouched for the credibility of the

victim during trial, the District Court correctly determined that this argument was

previously addressed on direct appeal.      See Thorp I, ¶¶ 22-30.       Likewise, we also

conclusively resolved the issue of whether the trial court impermissibly admitted other

acts evidence under M. R. Evid. 404(b) when it allowed witnesses to testify regarding

Thorp’s admission of alleged oral sex by the victim at some point during 2006. Thorp I,

¶ 40. Accordingly, these issues may not be raised in a petition for post-conviction relief.

¶7     In reference to the other acts evidence discussed above, Thorp makes the new

allegation that he learned of this evidence for the first time on the second day of trial. He

alleges that this constitutes material evidence withheld by the State in violation of the

principles set forth in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). This

argument is misplaced because the evidence in question was not suppressed—it arose for

the first time on the second day of trial during a line of questioning of prosecution

witnesses in which Thorp’s counsel actively participated. Moreover, this testimony was

unknown to the State before it surfaced at trial, thus making pretrial disclosure

impossible. See Thorp I, ¶¶ 27- 28.

¶8     Finally, Thorp makes the argument that several of his rights under the United

States Constitution and the Montana State Constitution were violated at trial. He makes

no supporting argument or allegations as to how these violations occurred, but instead

simply lists the provisions and alleges violations.      We generally refuse to consider

arguments raised for the first time on appeal, let alone on second appeal. See e.g. City of

Missoula v. Moore, 2011 MT 61, ¶ 13, 360 Mont. 22, 251 P.3d 679. This includes new

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arguments and changes in legal theory. State v. Ferguson, 2005 MT 343, ¶ 38, 330

Mont. 103, 126 P.3d 463. Moreover, as we stated above, grounds for relief that were or

could reasonably have been raised on direct appeal may not be raised in a petition for

post-conviction relief. Section 46-21-105(2), MCA.

¶9     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

issues in this case are legal and are controlled by settled Montana law, which the District

Court correctly interpreted.

¶10    Affirmed.


                                                 /S/ MIKE McGRATH


We concur:


/S/ PATRICIA COTTER
/S/ JIM RICE
/S/ BETH BAKER
/S/ JAMES C. NELSON




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