                                                                                            August 11 2015


                                           DA 15-0020
                                                                                           Case Number: DA 15-0020

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2015 MT 237N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

ANTHEL LAVAN BROWN,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Eighteenth Judicial District,
                        In and For the County of Gallatin, Cause No. 2744A
                        Honorable Holly Brown, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Anthel Lavan Brown (Self-Represented), Deer Lodge, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant
                        Attorney General, Helena, Montana

                        Marty Lambert, Gallatin County Attorney, Bozeman, Montana



                                                     Submitted on Briefs: July 22, 2015
                                                                Decided: August 11, 2015


Filed:

                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath 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 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     Anthel Brown appeals from the District Court’s order denying Brown’s motion to

compel discovery from the State of Montana. We affirm.

¶3     In 1976 Brown pled guilty to the felony offenses of robbery, deliberate homicide,

aggravated assault and sexual intercourse without consent. The District Court sentenced

Brown to a term of 194 years that he is currently serving. Brown did not appeal but has

filed several collateral attacks upon his conviction in the intervening decades. In 1980

the District Court held an evidentiary hearing on Brown’s motion to withdraw his guilty

plea on the ground that it was not entered knowingly and voluntarily. Brown did not

introduce any evidence at that hearing and did not cross-examine any witnesses called by

the State. The District Court examined the factual record, determined that Brown’s

argument “lacks merit,” and denied the motion to withdraw the pleas.           This Court

affirmed. In re Brown, 185 Mont. 200, 605 P.2d 185 (1980). Brown filed a petition for a

writ of habeas corpus in Federal District Court upon similar grounds and the federal court

denied relief. Brown v. Crist, 492 F. Supp. 965 (D. Mont. 1980), aff’d 654 F.2d 728 (9th

Cir. 1981), cert. denied 454 U.S. 1087, 102 S. Ct. 648 (1981). In 1993 Brown filed a


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petition for postconviction relief in state court contending that his guilty pleas were not

voluntary and that he had received ineffective assistance of counsel. The District Court

denied relief on the grounds that the record showed that Brown was not entitled to any

relief, and that the petition was barred by the time limitation in § 46-21-102, MCA. This

Court affirmed. State v. Brown, Cause No. 93-555, decided October 4, 1994.

¶4     Brown filed the present proceeding in March 2014 as a “Motion for Discovery” in

his original criminal case from the 1970s. He sought copies of “all forensic reports”

developed in connection with the prosecution against him, including ballistic testing,

blood typing, police reports, witness statements and lab reports. He contends generally

that there are “many constitutional violations” that must be addressed regarding his

original guilty pleas and that he needs the information in order to file a petition for

postconviction relief.

¶5     The District Court denied Brown’s motion for discovery, concluding that Brown’s

anticipated petition for postconviction relief was governed by the five-year statute of

limitations in § 46-21-102, MCA, and was therefore time-barred. The District Court

further concluded that since Brown admits that the material he seeks existed at the time

of his guilty plea, it is not newly discovered evidence for purposes of avoiding the

statutory time limit. In addition, the District Court determined that Brown had been

afforded ample opportunity in prior proceedings to raise any issues concerning his pleas

and conviction.

¶6     On appeal Brown states that he intends to file a petition for postconviction relief

contending that his guilty pleas were not voluntary and that the evidence that the

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prosecution could have used against him was subject to impeachment. He contends that

the evidence he needs to support these arguments is contained in two sealed envelopes

that are part of the original District Court file from the prosecution in the 1970s.

¶7     The Court opened those sealed envelopes and examined the contents, which do not

contain the documents that Brown speculates they would contain. Neither envelope

showed any sign that it had been opened since being sealed 40 years ago. One envelope

contained a copy of the State’s notice that it intended to seek that Brown be treated as a

persistent felony offender. The second envelope contained a letter from a psychologist to

the District Court in October 1976 opining that Brown was “legally sane” at the time of

the offenses. This letter was specifically mentioned in this Court’s 1980 Opinion on

Brown’s motion to withdraw his guilty plea.1 Brown, 185 Mont. at 203, 605 P.2d at 186.

¶8     It is also clear that Brown’s issues regarding whether his guilty pleas were

knowing and voluntary were determined or could have been determined in the state court

proceeding in 1980 in which he sought to withdraw his guilty plea. Brown is bound by

that determination that his pleas were voluntary and he cannot continue to raise those

issues in subsequent petitions and proceedings. Section 46-21-105, MCA; State v. Perry,

232 Mont. 455, 463-64, 758 P.2d 268, 273-74 (1988); Gollehon v. State, 1999 MT 210,

¶ 51, 296 Mont. 6, 986 P.2d 395.

¶9     We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. In the opinion



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           We direct that the Clerk of this Court send a copy of each of those documents to Brown.
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of the Court, this case presents a question controlled by settled law or by the clear

application of applicable standards of review.

¶10    Affirmed.


                                                 /S/ MIKE McGRATH

We Concur:

/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ JIM RICE




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