                                                                                       September 15 2015


                                           DA 15-0242
                                                                                        Case Number: DA 15-0242

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2015 MT 277N



CHARLES EDWARD CLARY,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.



APPEAL FROM:           District Court of the Eighth Judicial District,
                       In and For the County of Cascade, Cause No. BDV-12-0617
                       Honorable Julie Macek, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Charles Edward Clary, self-represented, Shelby, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss,
                       Assistant Attorney General, Helena, Montana

                       John Parker, Cascade County Attorney, Joshua A. Racki, Deputy County
                       Attorney, Great Falls, Montana



                                                   Submitted on Briefs: August 19, 2015
                                                              Decided: September 15, 2015


Filed:

                       __________________________________________
                                         Clerk
Justice Laurie McKinnon 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     Charles Clary (Clary) appeals pro se from an order of the Eighth Judicial District

Court, Cascade County, dismissing the claims in his amended petition for postconviction

relief. The District Court found Clary’s claims procedurally barred because they could

have been, but were not, raised on direct appeal. We affirm.

¶3     The issue on appeal is whether the District Court properly dismissed Clary’s

amended petition for postconviction relief.

¶4     Clary was convicted of felony aggravated burglary and assault with a weapon after

he entered the home of an acquaintance and had an altercation. Clary struck Nathan

Rolfs (Rolfs) and his wife, Nichole Neuhaus (Neuhaus), with the handle of an axe or

hammer.    Both Rolfs and Neuhaus sustained injuries in the altercation.        Clary was

represented by a public defender pretrial but decided to waive counsel and represent

himself at trial. His public defender was present as standby counsel. The Appellate

Defender Office represented Clary in his criminal appeal.         Clary’s conviction was

affirmed in State v. Clary, 2012 MT 26, 364 Mont. 53, 270 P.3d 88. We determined,

however, that Clary’s ineffective assistance of counsel claim was not record-based

stating, “Without a fully developed record of what Olson actually did to prepare Clary’s


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case for trial, the issue cannot be resolved and we therefore decline to address it on direct

appeal.” Clary, ¶ 31.

¶5     Clary filed a pro se petition for postconviction relief on August 14, 2012. After

the State responded, Clary moved for appointment of counsel to file an amended petition

for relief. The District Court denied his request for appointment of counsel and, after

Clary moved for disposition of his Amended Petition, the court dismissed the petition

without a hearing and without ordering a response from the State.

¶6     We note here that Clary has had numerous problems with appointed counsel both

during these proceedings as well as during the underlying criminal case. Clary’s most

recent appointed counsel filed a notice not to move to amend Clary’s pro se motion as

well as a motion to withdraw stating that she was unable to find any non-frivolous or

meritorious issues and was ethically bound to refrain from filing an amended petition.

The District Court noted that Clary

       has a history of requesting any counsel assigned to him to be removed and
       replaced . . . . It is obvious to this Court that the Petitioner will never be
       satisfied with any counsel appointed to represent him. Appointment of
       counsel in a postconviction proceeding is not a matter of right, but occurs in
       only limited circumstances required by the interests of justice, in the
       discretion of the Court. The Court will not appoint counsel yet again for the
       Petitioner, nor will the Court entertain any additional motions for counsel
       filed by the Petitioner.

Clary is, therefore, self-represented in this matter.

¶7     A postconviction relief proceeding is a civil remedy established by statute.

Dillard v. State, 2006 MT 328, ¶ 13, 335 Mont. 87,153 P.3d 575.                 Codified at

§§ 46-21-101 to 203, MCA, this process is not a substitute for direct appeal review. It is



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a means to provide review of only those collateral claims or grounds for relief that could

not reasonably have been raised on direct appeal. If the claim could have been raised on

direct appeal, the claim is procedurally barred. Section 46-21-105(2), MCA. A district

court may dismiss a petition as a matter of law for failure to state a claim upon which

relief can be granted if the petition and the files and records of the case conclusively

show that the petitioner is not entitled to relief. Section 46-21-201(1)(a), MCA.

¶8     When a district court dismisses a petition for post-conviction relief as a matter of

law, we review that legal conclusion for correctness. Kelly v. State, 2013 MT 21, ¶ 7,

368 Mont. 309, 300 P.3d 120.

¶9     On appeal Clary asserts several claims upon which he claims he is entitled to

relief. The District Court summarized three of those claims as:

       (1) Illegal arrest. The Petitioner asserts that he was illegally arrested for
           aggravated burglary and two counts of assault with a weapon because he
           was also charged in a separate case as a fugitive from justice. The
           Petitioner contends he was not a fugitive from justice at the time he was
           arrested on suspicion of having committed aggravated burglary and two
           counts of assault with a weapon. The Petitioner contends that the
           charges against him should be dismissed on this basis.

       (2) Structural defect resulting from assignment of judge pro tempore. The
           Petitioner contends that he should be given a new trial because he was
           brought before a judge pro tempore for his initial appearance. The
           Petitioner contends this was an illegal act that should nullify his
           conviction because a judge pro tempore may not legally read defendants
           the charges against them when an arrest is made on probable cause to
           believe a crime has been committed in accordance with § 46-6-311(1),
           MCA.

       (3) Structural defect resulting from the same judge that determined probable
           cause to charge also overseeing Petitioner’s trial.




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          The Petitioner asserts a structural defect requiring a new trial occurred
          when [the District Court] determined sufficient probable cause existed
          to charge him with aggravated burglary and two counts of assault with a
          weapon because this Court also presided over trial of those charges.
          The Petitioner contends this created substantial judicial bias at his trial
          because this Court had already concluded his guilt when it determined
          sufficient probable cause to charge.

¶10    Clary has been afforded the opportunity for a direct appeal of his conviction and

he has availed himself of this opportunity. He did not raise these grounds for relief

during that proceeding where they could have been raised. Pursuant to § 46-21-105(2),

MCA, these claims are, therefore, statutorily barred.

¶11    The remaining claims before us cannot be considered on their merits as they have

not been preserved for review. Clary’s assertions of malicious prosecution and “judicial

mental illness” of the District Court judge in the postconviction proceedings are raised

for the first time on appeal. Clary also asserts ineffective assistance of counsel claim

which, while raised in his original postconviction relief petition, was not argued in his

amended petition. The statement in Clary’s amended petition that he “reserves all rights”

to his ineffective assistance claims is insufficient to plead a claim for postconviction

relief. Section 46-21-104(1)(c). Just like an amended complaint, an amended petition

supersedes the prior petition. Ben Kress Nursery Co. v. Oregon Nursery Co., 45 Mont.

494, 496, 124 P. 475 (1912) (“By filing the amended complaint, the original complaint

was superseded and became functus officio.”).        These additional claims were never

considered by the District Court. A postconviction claim that is not raised in an original

or amended original petition cannot be raised for the first time on appeal. Section




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46-21-105(1)(a), MCA, Sanders v. State, 2004 MT 374, ¶ 16, 325 Mont. 59,103 P.3d

1053.

¶12     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

of the Court, the case presents a question controlled by settled law or by the clear

application of applicable standards of review. The District Court’s interpretation and

application of the law were correct. The court properly dismissed Clary’s postconviction

claims because they were procedurally barred and there existed no relief that the District

Court could lawfully grant. We also must decline to review Clary’s new arguments or

legal theories for the first time on appeal.

¶13     Affirmed.



                                                   /S/ LAURIE McKINNON

We concur:
/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ MICHAEL E WHEAT




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