                                                                                           December 19 2012


                                           DA 12-0366

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2012 MT 297N



JAMES E. SCRIVER, JR.,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.


APPEAL FROM:          District Court of the Ninth Judicial District,
                      In and For the County of Teton, Cause No. DDV 11-038
                      Honorable Dirk M. Sandefur, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      James E. Scriver, Jr. (self-represented); Deer Lodge, Montana

               For Appellee:

                      Steve Bullock, Montana Attorney General; Mark W. Mattioli,
                      Assistant Attorney General, Helena, Montana

                      Joe Coble, Teton County Attorney, Choteau, Montana




                                                   Submitted on Briefs: October 24, 2012

                                                               Decided: December 19, 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     James Scriver, Jr. appeals from the District Court’s Order Denying Petition for

Postconviction Relief, filed June 5, 2012. We reverse and remand.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶3     In 1995 the State of Montana charged Scriver with sexual assault, a felony. He

was released from custody on the condition that he appear at all subsequent court

proceedings. He failed to do so and absconded for a period of years. In 2003 he

surrendered to authorities in Idaho. The Idaho authorities subsequently released him,

allegedly because Montana failed to timely extradite him. Six years later in 2009, Scriver

was arrested in Wyoming and returned to Montana to face the sexual assault charge.

Upon his return he was additionally charged with bail jumping for having absconded

from prosecution since 1995.

¶4     Scriver ultimately entered an agreement to plead guilty to sexual assault and bail

jumping. The District Court accepted Scriver’s plea and in September 2010 sentenced

him to 20 years at the Montana State Prison for sexual assault, restricting parole and good

time allowance, and designating him as a Tier 2 sex offender.          The District Court


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sentenced Scriver to five years for bail jumping, to run consecutive to the sentence for

sexual assault.

¶5     Scriver did not appeal, but obtained sentence review, which left his sentence

unchanged. In August 2011, Scriver petitioned pro se for postconviction relief, claiming

that he was provided ineffective assistance of counsel prior to entering guilty pleas to

felony sexual assault and bail jumping. He claimed that his attorney failed to advise him

of his right to a speedy trial as it related to the charge of sexual assault and that his guilty

plea to that offense was therefore not voluntary.

¶6     The District Court reviewed the record in Scriver’s prior criminal proceeding,

including the written plea agreement, the acknowledgment of waiver of rights form, and

the transcript of the change of plea hearing. Based upon this review, the District Court

found that Scriver knowingly, voluntarily and intelligently entered the guilty pleas to

sexual assault and bail jumping. The District Court denied the petition for postconviction

relief and Scriver appeals.

                                STANDARD OF REVIEW

¶7     This Court reviews a district court’s decision on a petition for postconviction relief

to determine whether the findings of fact are clearly erroneous and whether the

conclusions of law are correct. Claims of ineffective assistance of counsel are reviewed

de novo. Robinson v. State, 2010 MT 108, ¶ 10, 356 Mont. 282, 232 P.3d 403.

                                       DISCUSSION

¶8     A defendant who voluntarily enters a guilty plea waives all defenses and non-

jurisdictional defects that occurred in the prosecution of the case against him. State v.

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Pavey, 2010 MT 104, ¶ 11, 356 Mont. 248, 231 P.3d 1104; State v. Gordon, 1999 MT

169, ¶ 23, 295 Mont. 183, 983 P.2d 377. While a claim of violation of the right to a

speedy trial is a non-jurisdictional issue, Pavey, ¶ 11, a defendant may raise a challenge

that his guilty plea was not voluntary. Hardin v. State, 2006 MT 272, ¶ 23, 334 Mont.

204, 146 P.3d 746. The District Court construed Scriver’s petition as a challenge to the

voluntariness of his guilty plea and we do so as well.

¶9     Postconviction relief is a civil remedy available to persons who have been

adjudged guilty of a criminal offense, have no adequate remedy of appeal, and claim that

the sentence was imposed in violation of the Constitution of Montana or the United

States. Section 46-21-101(1), MCA. A petitioner for postconviction relief must file a

verified petition demonstrating by a preponderance of the evidence that he is entitled to

relief. State v. Cobell, 2004 MT 46, ¶ 12, 320 Mont. 122, 86 P.3d 20. A petitioner has

the burden to demonstrate to the District Court that his plea agreement was not voluntary,

Cobell, ¶ 12; Stevens v. State, 2007 MT 137, ¶ 11, 337 Mont. 400, 162 P.3d 82. A

postconviction relief proceeding is a proper forum for raising issues relating to ineffective

assistance of counsel that do not appear on the face of the record. State v. Weaver, 2001

MT 115, ¶ 14, 305 Mont. 315, 28 P.3d 451.

¶10    Speedy trial issues can arise when a person charged with an offense is absent from

the jurisdiction, and a detailed examination of the facts may be required.          State v.

Robbins, 218 Mont. 107, 708 P.2d 227 (1985); State v. Longhorn, 2002 MT 135, 310

Mont. 172, 49 P.3d 48; State v. Lacey, 2010 MT 6, 355 Mont. 31, 224 P.3d 1247; State v.

Houghton, 2010 MT 145, 357 Mont. 9, 234 P.3d 904.

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¶11    This Court has limited ability to review the record in this case because Scriver

failed to transmit the record of his underlying criminal case for purposes of this appeal.

While it is an appellant’s burden to transmit a sufficient record to this Court on appeal,

M. R. App. P. 8(2). Scriver is an incarcerated person appearing pro se who could

reasonably have believed that the record of his underlying criminal case would be

transmitted to this Court with the appeal. Even if the record in the underlying criminal

case had been transmitted as part of this appeal, it is not clear whether it would have been

sufficient to determine whether Scriver’s guilty plea was voluntary in light of the

potential speedy trial issues.

¶12    We remand this case to the District Court for appointment of counsel, § 46-21-

201(2), MCA, to investigate Scriver’s claims and to determine whether to file an

amended petition for postconviction relief or to seek other appropriate relief.




                                                 /S/ MIKE McGRATH


We concur:


/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ BRIAN MORRIS
/S/ JIM RICE




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