                                                                                              June 2 2015


                                          DA 14-0184
                                                                                         Case Number: DA 14-0184

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2015 MT 156N



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

RAYMOND CARPENTER, JR.

              Defendant and Appellant.


APPEAL FROM:           District Court of the Thirteenth Judicial District,
                       In and For the County of Yellowstone, Cause No. DC-12-120
                       Honorable G. Todd Baugh, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Raymond Carpenter, Jr., self-represented, Shelby, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
                       Attorney General Helena, Montana

                       Scott Twito, Yellowstone County Attorney, Julie Pierce, Deputy County
                       Attorney, Billings, Montana



                                                   Submitted on Briefs: May 6, 2015
                                                              Decided: June 2, 2015


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice 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Rules, this case is decided by unpublished opinion and shall not be cited and does not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     Raymond Carpenter, Jr. (Carpenter) appeals from an order of the Thirteenth

Judicial District Court, Yellowstone County, denying his motion to withdraw his guilty

plea. We affirm. The dispositive issue on appeal is whether Carpenter’s motion to

withdraw his guilty plea was time-barred.

¶3     On May 21, 2012, Carpenter entered into a plea agreement with the State in which

he agreed to plead guilty to tampering with witnesses and informants. The District Court

sentenced Carpenter to the Montana State Prison for a term of 10 years with 2 years

suspended.    The court designated Carpenter as a Persistent Felony Offender for

sentencing under § 46-18-501 and § 46-18-502, MCA. On August 27, 2012, the court

entered its final judgment. On February 6, 2014, Carpenter filed a motion to withdraw

his guilty plea. The District Court denied Carpenter’s motion, concluding the motion was

untimely. The court noted “the Defendant is not claiming he is innocent but he does

think his sentence was excessive.”

¶4     On appeal, Carpenter does not address the court’s conclusion that his motion was

untimely. Instead, Carpenter challenges, for the first time on appeal, the constitutionality

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of the Persistent Felony Offender Statute, § 46-18-501, MCA.         It is a well settled

principle of law that the “appellant carries the burden of establishing error by the trial

court.” State v. Carter, 285 Mont. 449, 461, 948 P.2d 1173, 1180 (1997); accord Small v.

Good, 284 Mont. 159, 163, 943 P.2d 1258, 1260 (1997). It is also “well established that

we do not consider new arguments or legal theories for the first time on appeal.”

Pilgeram v. Greenpoint Mortg. Funding, Inc., 2013 MT 354, ¶ 20, 373 Mont. 1, 313 P.3d

839.

¶5     Section 46-16-105(2), MCA, limits the time that a court may permit withdrawal of

a guilty plea to “within 1 year after judgment becomes final,” unless a “claim of

innocence is supported by evidence of a fundamental miscarriage of justice . . . .” For

purposes of § 46-16-105(2), MCA, a judgment becomes final “when the time for appeal

to the Montana supreme court expires[.]” Section 46-16-105(2)(a), MCA. In a criminal

case, an appeal to this Court must be made within 60 days of entry of the final judgment.

M. R. App. P. 4(5)(b).

¶6     Carpenter did not allege a claim of innocence before the District Court, nor does

he attempt to raise such a claim on appeal. Therefore, pursuant to § 46-16-105(2), MCA,

Carpenter had until October 26, 2013, to file a motion to withdraw his plea. Accordingly,

the District Court did not err by concluding the motion was time-barred.

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

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

the Court, the case presents a question controlled by settled law.

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¶8   Affirmed.



                              /S/ JIM RICE

We concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER




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