                                          No. 02-674

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2004 MT 112




JOHN ROGER DAVIS,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Respondent.




APPEAL FROM:         District Court of the Fourth Judicial District,
                     In and For the County of Missoula, Cause No. DC 2000-97,
                     Honorable Douglas G. Harkin, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     John Roger Davis, Pro Se, Missoula, Montana

              For Respondent:

                     Honorable Mike McGrath, Attorney General; Pamela P. Collins, Assistant
                     Attorney General, Helena, Montana

                     Fred Van Valkenburg, County Attorney, Missoula, Montana



                                                  Submitted on Briefs: April 10, 2003

                                                             Decided: April 27, 2004

Filed:

                     __________________________________________
                                       Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Petitioner John Roger Davis (Davis) appeals the August 20, 2002, order and

memorandum of the Fourth Judicial District Court, Missoula County, wherein the court

denied both of Davis’s petitions for postconviction relief. We affirm.

¶2     Davis presents the following issues on appeal:

¶3     1. Did the District Court err in dismissing Davis’s first petition for postconviction

relief on grounds it was time-barred?

¶4     2. Did the District Court err in dismissing Davis’s second petition for postconviction

relief on grounds of ineffective assistance of counsel?

                   FACTUAL AND PROCEDURAL BACKGROUND

¶5     On February 5, 2000, in Lolo, Montana, Davis, then one month away from his

eighteenth birthday, and two older teenaged boys, Wayne Hartung and Brett Sharbono, were

on their way from a party to pick up more orange juice. As they were stopped in Davis’s

truck at a traffic light, one of three younger boys on foot walking across the street in front

of Davis’s truck gave the older boys the finger. The older boys chased the younger boys

down and an altercation ensued. Davis, Hartung and Sharbono forced the younger boys to

sit on the ties of a railroad track “so like if they tried to run they’d be easier to grab.” Davis,

Hartung, and Sharbono then stole what few possessions the younger boys had and proceeded

to hit, punch, and knee them in the face until they bled and rolled down the railroad

embankment. Hartung stated, “[w]e intimidated ’em pretty bad. Just to be tough, I guess.”




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Responding deputies took photographs of the boys’ faces which had split lips, broken noses,

and extensive bruising.

¶6     On February 25, 2000, Davis was charged in District Court by Information with

aggravated kidnapping, a felony, in violation of § 45-5-303, MCA, punishable by ten years

in the Montana State Prison (MSP) and/or $50,000.00 fine. In a hearing on March 13, 2000,

counsel for the State argued that the case should remain in District Court; Davis’s counsel

argued it should be transferred to Youth Court. The District Court found that, since Davis

had turned eighteen on March 3, 2000, and aggravated kidnapping was a serious offense if

convicted, the case would remain in District Court and would not be transferred to Youth

Court. Davis entered a plea of not guilty to the charge alleged in the Information.

¶7     On July 5, 2000, Davis made a motion to withdraw his plea of not guilty and, after

extensive inquiry, the court and the State accepted Davis’s guilty plea to the charge of

aggravated kidnapping.

¶8     The District Court pronounced oral judgment on Davis on November 13, 2000. After

reviewing his Pre-Sentence Investigation Report (PSI), the District Court ordered that

imposition of sentence be deferred for a period of three years, upon standard and special

terms and conditions including, inter alia, neither using nor possessing alcohol, successfully

completing an anger management program, and remaining law abiding in all respects. The

November 13, 2000, oral judgment was reduced to writing and filed on January 12, 2001.

¶9     Approximately three months after entry of Davis’s deferred imposition of sentence,

the State, on April 27, 2001, filed a petition to revoke Davis’s deferred sentence, followed


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by a supplemental petition to revoke on July 20, 2001. These petitions alleged Davis had

violated several conditions of his deferred sentence, namely, drinking intoxicants, possessing

alcoholic beverages, failing to complete anger management counseling, and, on June 4,

2001, pleading guilty in Mineral County to negligent endangerment in violation of § 45-5-

208, MCA.

¶10    On July 31, 2001, Davis, accompanied by defense counsel, appeared in District Court

and admitted to the allegations set forth in the petitions to revoke. At the same time, the

District Court granted a motion by Davis to be screened for the Treasure State Correctional

Training Program (boot camp). On September 20, 2001, the District Court issued an order

revoking Davis’s deferred sentence and imposing a new sentence which committed Davis

to the Department of Corrections for a term of five years for “suitable placement,” including

an appropriate community-based program, facility, or a State correctional institution. The

District Court further recommended placement in boot camp, after Davis served the amount

of time required by MSP. The court stated Davis could petition for an early release upon

successful completion of the boot camp. Davis attended boot camp for a time, but did not

successfully complete the program because of a back injury he sustained in 1998.

Thereafter, he was placed in the Crossroads Correctional Center in Shelby, Montana.

¶11    On May 28, 2002, Davis filed his first petition seeking postconviction relief from the

oral judgment entered November 13, 2000. Then, on July 5, 2002, Davis filed his second

petition seeking postconviction relief from the revocation judgment entered August 28, 2001.




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On August 20, 2002, in consolidated proceedings, the District Court denied both petitions

for postconviction relief.

                                           ISSUE 1

¶12     Did the District Court err in dismissing Davis’s first petition for postconviction
relief on grounds it was time-barred?

                                STANDARD OF REVIEW

¶13    This Court reviews a district court’s denial of a petition for postconviction relief to

determine whether the district court’s findings of fact are clearly erroneous and whether its

conclusions of law are correct. State v. Root, 2003 MT 28, ¶ 7, 314 Mont. 186, ¶ 7, 64 P.3d

1035, ¶ 7. We will affirm a district court’s ruling, even if the court reached the correct result

for the wrong reason. Raugust v. State, 2003 MT 367, ¶ 9, 319 Mont. 97, ¶ 9, 82 P.3d 890,

¶ 9.

                                        DISCUSSION

¶14    Davis asserts the District Court erred in dismissing his first petition for postconviction

relief on the basis it was time-barred. The statute of limitations for postconviction relief is

set forth in § 46-21-102(1), MCA, as follows:

       46-21-102. When petition may be filed. (1) Except as provided in subsection
       (2), a petition for the relief referred to in 46-21-101 may be filed at anytime
       within 1 year of the date that the conviction becomes final. A conviction
       becomes final for purposes of this chapter when:
               (a) the time for appeal to the Montana supreme court expires;
               (b) if an appeal is taken to the Montana supreme court, the time for
       petitioning the United States supreme court for review expires; or
               (c) if review is sought in the United States supreme court, on the date
       that that court issues its final order in the case.



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This Court has previously explained the correct procedure for applying § 46-21-102(1),

MCA, to the question of whether a petition for postconviction relief is timely filed. Root,

¶ 9; State v. Abe, 2001 MT 260, ¶ 7, 307 Mont. 233, ¶ 7, 37 P.3d 77, ¶ 7. First, under

subpart (1)(a), pursuant to Rule 5, M.R.App.P., in criminal cases, an appeal from a judgment

must be taken within sixty days after entry of judgment appealed from. Then, under subpart

(1)(b), pursuant to the Rules of the United States Supreme Court, a petitioner has 90 days

from the entry of the decision in his appeal to the Montana Supreme Court in which to

petition for writ of certiorari in the United States Supreme Court. See Rule 13, Rules of the

Supreme Court of the United States; Abe, ¶ 7. Then, under subpart (1)(c), convictions are

deemed final when the time expires for petitioning the United States Supreme Court.

Finally, under subsection (1), the petitioner has a one-year limitation period thereafter to file

the petition.

¶15    In the instant case, the judgment was filed on January 12, 2001. Davis did not appeal

that judgment to the Montana Supreme Court. Therefore, under § 46-21-102(1)(a), MCA,

the conviction became final sixty days after January 12, 2001, or March 13, 2001. Davis

then had one year from March 13, 2001, to March 13, 2002, to file his petition for

postconviction relief. Davis filed his petition on May 28, 2002, which was seventy-six days

beyond the deadline. Although the District Court erred by calculating the one-year limitation

period from January 13, 2001, to January 13, 2002, it nonetheless reached the correct

conclusion. Because Davis’s petition was filed after March 13, 2002, it was untimely.




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¶16    It must be noted that Davis’s assertion that his deferred sentence does not constitute

a conviction, and therefore, the time bar in § 46-21-102, MCA, does not apply, is without

merit. The District Court properly rejected this assertion, stating that under this Court’s

decision in State v. Rice (1996), 275 Mont. 81, 84, 910 P.2d 245, 246, a “sentence” is a

judicial disposition of a criminal proceeding by plea, verdict, or finding of guilty. See § 46-

1-202(24), MCA. Thus, a deferred imposition of sentence, as in Davis’s case, is final for

purposes of appeal and postconviction relief.

¶17    Davis also asserts that the District Court lacked subject matter jurisdiction over his

original criminal proceeding. The issue of a court’s subject matter jurisdiction may be

presented at any time and is never waived or consented to where there is no basis for the

court to exercise jurisdiction. See State v. Boucher, 2002 MT 114, ¶ 12, 309 Mont. 514,

¶ 12, 48 P.3d 21, ¶ 12. Davis alleges that the District Court lacked subject matter

jurisdiction because the case was not properly transferred from Youth Court to District Court

under § 41-5-206 and § 41-5-208, MCA. A review of the record, however, reveals that the

filing of the Information in District Court was proper.

¶18    The county attorney properly filed the Information in District Court pursuant to § 41-

5-206(2), MCA, which provides: “The county attorney shall file with the district court a

petition for leave to file an information in the district court if the youth was 17 years of age

at the time the youth committed an offense listed under subsection (1).”1 And, § 41-5-

206(4), MCA, further states, “[t]he filing of an information in district court terminates the

       1
       Section 41-5-206(1)(b)(vii), MCA, states: “aggravated
kidnapping as defined in 45-5-303.”

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jurisdiction of the youth court over the youth with respect to the acts alleged in the

information.” Since Davis was seventeen years of age at the time of the offense, and since

the act of filing the Information in District Court terminated the jurisdiction of Youth Court,

no error was committed with respect to the District Court’s application of § 41-5-206 and

§ 41-5-208, MCA.

                                           Issue 2

¶19 Did the District Court err in dismissing Davis’s second petition for postconviction
relief on grounds of ineffective assistance of counsel?

                                STANDARD OF REVIEW

¶20    In considering ineffective assistance of counsel claims in postconviction proceedings,

we apply the two-pronged test set forth by the United States Supreme Court in Strickland v.

Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; Dawson v. State, 2000

MT 219, ¶ 20, 301 Mont. 135, ¶ 20, 10 P.3d 49, ¶ 20; State v. St. John, 2001 MT 1, ¶ 37,

304 Mont. 47, ¶ 37, 15 P.3d 970, ¶ 37 (overruled on other grounds). Under the first prong,

the defendant bears the burden of showing that counsel’s performance was deficient or fell

below an objective standard of reasonableness. St. John, ¶ 37. In so doing, the defendant

must overcome a strong presumption that counsel’s defense strategies and trial tactics fall

within a wide range of reasonable and sound professional decisions. Strickland, 466 U.S.

at 688-89, 104 S.Ct. at 2064-65, 80 L.Ed.2d at 693; State v. Harris, 2001 MT 231, ¶ 18, 306

Mont. 525, ¶ 18, 36 P.3d 372, ¶ 18. The second prong requires the defendant to establish

prejudice by demonstrating that there was a reasonable probability that, but for counsel’s

errors, the result of the proceeding would have been different. Harris, ¶ 19. A defendant

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claiming ineffective assistance of counsel must ground his or her proof on facts within the

record and not on conclusory allegations. St. John, ¶ 38.

                                        DISCUSSION

¶21     In his second petition for postconviction relief, Davis asserts ineffective assistance

of counsel because his attorney allegedly told him “not to tell the [c]ourt about a

compression fracture that he had in his back which would preclude him from doing any sit-

ups or push-ups, as required in the boot camp,” and would, therefore, disqualify him for boot

camp. The District Court, however, noted significant discrepancies in Davis’s allegations

and the affidavit of Davis’s counsel who denied advising Davis to withhold any medical

information in anticipation of his screening for boot camp at his sentencing or any other

time.

¶22     The District Court, in its August 20, 2002, order denying Davis’s petition, noted that

the court file reflected information in the PSI report that was inconsistent with Davis’s

allegations that he withheld medical information based upon the advice of counsel.

Specifically, in a telephone interview with Davis conducted by a State Probation and Parole

Officer, Davis completed a general health screening wherein the following question was

asked and answered:

        Q: Is there any physical or emotional condition, which you believe requires
        accommodation, e.g. lifting restrictions, activity restrictions, and assistance in
        ambulating, etc.? Has reasonable accommodation been made in the past? If
        it has, please explain. Is there anything that would limit your ability to
        participate fully in any correctional setting, i.e. Pre-release, boot camp, MSP,
        etc.

        A: No - crushed vertebrae, February 1998. Always pain.

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Thus, Davis, himself, disclosed that, as of February 1998, he had a crushed vertebra which

resulted in constant pain, but that the condition would not limit his ability to participate fully

in any correctional setting, including boot camp. The court stated that, even assuming,

arguendo, that Davis’s counsel did advise him to remain silent about his back problem,

Davis had already revealed the information of his own accord. The information was

available to the court, and the court was, in fact, aware of Davis’s back problem when it

pronounced sentence on the revocation of the prior deferred sentence. The court concluded,

therefore, that Davis could not show that the alleged deficient performance of his counsel

prejudiced him.

¶23     We agree that Davis has not carried his burden of proving his claim for ineffective

assistance of counsel. First, Davis has not grounded his proof on facts within the record

rather than on conclusory allegations. Davis baldly stated in his petition that his inability to

complete the boot camp program “has led to numerous detrimental consequences. He has

been denied for every possible DOC placement he is eligible for. He has been denied parole

because this has been a condition adopted by the parole board.” As the State correctly notes,

Davis has failed to provide any evidence in support of these assertions, as required under St.

John.

¶24      Furthermore, Davis has not met the second prong of the Strickland test which

requires a reasonable probability that, but for counsel’s deficient performance, Davis would

not have pled guilty and would have insisted on going to trial. Harris, ¶ 19. Davis has failed

to establish that he would not have pled guilty to the violation of his deferred sentence, and


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would have insisted on going to trial, but for his counsel’s alleged advice not to disclose his

back injury.

¶25    Thus, we conclude the District Court properly denied both of Davis’s petitions for

postconviction relief. Affirmed.



                                                                 /S/ JIM RICE

We concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ PATRICIA O. COTTER
/S/ JIM REGNIER




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