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                                                                 No. 99-198

                           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                              1999 MT 267N




JOSEPH C. MORRISON, JR.,

Petitioner and Appellant,

v.

STATE OF MONTANA,

Respondent and Respondent.




                                                           APPEAL FROM: District Court of the Sixteenth Judicial
                                                           District,

In and for the County of Rosebud,

Honorable Gary L. Day, Judge Presiding.




COUNSEL OF RECORD:

For Appellant:

Joseph C. Morrison, Jr., Pro Se, Deer Lodge, Montana

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For Respondent:

Honorable Joseph P. Mazurek, Attorney General; Pamela P.

Collins, Assistant Attorney General; Helena, Montana

Lee R. Kerr, County Attorney, Forsyth, Montana




Submitted on Briefs: October 22, 1999

Decided: November 2, 1999

Filed:




__________________________________________

Clerk

Chief Justice J. A. Turnage delivered the Opinion of the Court.



¶ Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent but shall be
filed as a public document with the Clerk of the Supreme Court and shall be
reported by case title, Supreme Court cause number and result to the State Reporter
Publishing Company and to West Group in the quarterly table of noncitable cases
issued by this Court.

¶ The Sixteenth Judicial District Court, Rosebud County, dismissed a petition for
postconviction relief filed by Joseph C. Morrison, Jr., on procedural grounds.
Morrison appeals. We affirm.

¶ The issue is whether the postconviction petition was properly denied.

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¶ Morrison pled guilty in January 1996 to misdemeanor assault and felony criminal
endangerment. In October 1998, Morrison filed his pro se petition for postconviction
relief. His petition asserted that he received ineffective assistance of counsel in his
criminal defense and that the prosecution engaged in misconduct by failing to
disclose evidence favorable to him. The District Court, after reading and reviewing
the petition, determined that it addressed issues that were clear on the record and
could have been addressed by direct appeal. The court dismissed the petition for
postconviction relief based upon the procedural bar of § 46-21-105, MCA.

¶ Section 46-21-105, MCA, provides, in pertinent part:

                   (2) When a petitioner has been afforded the opportunity for a direct appeal of
                   the petitioner's conviction, grounds for relief that were or could reasonably
                   have been raised on direct appeal may not be raised, considered, or decided in
                   a proceeding brought under this chapter.

Morrison's petition for postconviction relief alleged that his attorney rendered him
ineffective assistance by insisting that he enter a guilty plea rather than go to trial, failing
to follow up on his requests to obtain statements from potential character witnesses, failing
to obtain unspecified information from the prosecution that would disclose evidence
favorable to him, and failing to supply him with copies of motions and other court
documents. The petition further avers that Morrison was informed by another inmate, prior
to entering his guilty plea, that the victim of his crime may have had previous injuries
which would explain his condition after Morrison's attack on him. This is the basis for
Morrison's claims of prosecutorial failure to disclose evidence favorable to the defendant
and prosecutorial misconduct.

¶ All of Morrison's claims relate to matters known to him before expiration of the
time allowed for filing an appeal from his criminal conviction, sixty days after
judgment was entered against him. See Rule 5(b), M.R.App.P. Morrison admits that
he knew he had the right to appeal the judgment. He has also admitted, in his
memorandum to the District Court in support of his petition for postconviction
relief, that his retained counsel told him just prior to sentencing that in his
professional judgment, an appeal would be a waste of time. Although Morrison now
attempts to argue on appeal that his counsel told him he would file an appeal, he did
not make that argument to the District Court. A petitioner may not alter or expand
his argument on appeal; Morrison has therefore waived the argument that his

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counsel told him he would file an appeal. See State v. Woods (1997), 283 Mont. 359,
372, 942 P.2d 88, 96-97.

¶ Morrison did not take steps to have another attorney appointed to represent him
on appeal or to file a notice of appeal pro se. As such, we conclude that Morrison
waived his right to appeal, and all claims he reasonably could have raised on appeal
are procedurally barred in postconviction proceedings.

¶ We affirm the judgment of the District Court.

/S/ J. A. TURNAGE




We concur:

/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

/S/ JIM REGNIER




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