                                                                                                 04/21/2020


                                           DA 19-0089
                                                                                             Case Number: DA 19-0089


              IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2020 MT 97N


BILLY JOE WATTS,

               Petitioner and Appellant,

         v.

STATE OF MONTANA,

               Respondent and Appellee.


APPEAL FROM:           District Court of the First Judicial District,
                       In and For the County of Lewis and Clark, Cause No. CDV 18-171
                       Honorable Kathy Seeley, Presiding Judge

COUNSEL OF RECORD:

                For Appellant:

                       Billy Joe Watts, Self-represented, Shelby, Montana

                For Appellee:

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

                       Leo Gallagher, Lewis and Clark County Attorney, Helena, Montana


                                                     Submitted on Briefs: October 16, 2019

                                                                Decided: April 21, 2020

Filed:

                                 q3,,---,6mal•-.— 4(
                       __________________________________________
                                             Clerk
Justice Dirk Sandefur 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     Billy Joe Watts (Watts) appeals the judgment of the Montana First Judicial District

Court, Lewis and Clark County, denying his petition for postconviction relief. We affirm.

¶3     In March 2018, Watts’ sought postconviction relief regarding two separate cases

involving convictions for Partner or Family Member Assault (PFMA)—a 2012 conviction

and a 2015 conviction. In the 2012 case, he pled guilty to fourth offense PFMA and was

sentenced to a suspended five-year prison term.1 A 2003 conviction was one of the

predicate prior convictions for the felony PFMA. While awaiting disposition on the State’s

revocation petition after admitting to alleged probation violations, Watts moved the District

Court to set aside his original 2012 conviction “due to previous infirm convictions.” After

denying that motion, the District Court revoked his original suspended sentence and

resentenced him to an unsuspended five-year prison term with credit for time served. Watts

later timely appealed the 2015 revocation and resentencing on his original 2012 conviction.




1
  Watts timely appealed the original 2012 conviction, but we later dismissed the appeal on his
unopposed motion in favor of pursuit of a motion to withdraw his guilty plea in district court.
State v. Watts, DA 13-0090, Or. (Mont. July 18, 2013).

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However, by subsequent stipulation signed by client and counsel, he stipulated to the

dismissal of the balance of the appeal “with prejudice” in return for the State’s stipulation

for remand for entry of an amended judgment of conviction reflecting the correct amount

of time served. Pursuant to the parties’ stipulated motion, we remanded for entry of an

amended judgment and dismissed the appeal without qualification.2

¶4       In the second case, Watts pled guilty to a fifth offense PFMA committed while he

was still on probation for his 2012 conviction. With the assistance of counsel, he pled

guilty under a plea agreement in return, inter alia, for the State’s abandonment of its intent

to seek a persistent felony offender enhancement of the maximum penalty based on his

prior PFMA conviction in 2012. However, based on the fact that the pre-2013 versions of

§ 45-5-206, MCA, defined PFMA in terms of proscribed conduct directed at a partner “of

the opposite sex,” Watts asserted at sentencing that his prior PFMA convictions were

constitutionally invalid in violation of the equal protection guarantees of the United States

and Montana Constitutions. State v. Watts (Watts I), 2016 MT 331, ¶¶ 4-6, 386 Mont. 8,

385 P.3d 960. He thus moved for dismissal of the resulting felony based on the alleged

invalid prior convictions, which would thereby leave him guilty of only a misdemeanor

PFMA. Watts I, ¶ 6. However, based on a severability clause in the PFMA statute, the

District Court rejected his constitutional challenge to the prior convictions and sentenced

Watts to an additional five-year prison term on the fifth offense PFMA. Watts I, ¶¶ 6, 10.

On appeal, we affirmed on the ground that Watts waived the right to challenge the


2
    State v. Watts, DA 15-0628, Or. (Mont. Jan. 10, 2017).
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constitutional validity of his prior convictions by failing to preserve the right to appeal in

his plea agreement. Watts I, ¶¶ 10, 14. We held further that the limited exception to the

plea waiver rule under State v. Lenihan, 184 Mont. 338, 343, 602 P.2d 997, 1000 (1979)

(in re sentences illegal or in excess of statutory mandate), did not apply to

non-jurisdictional challenges to the underlying conviction. Watts I, ¶¶ 11-15.

¶5        In March 2018, Watts responded with an assisted pro se petition3 for postconviction

relief asserting that he received ineffective assistance (IAC) from both his trial and

appellate counsel regarding the 2014-2015 proceedings on his 2012 and 2015 PFMA

convictions. In various regards, he asserted that he was deprived of his federal and state

constitutional rights to effective assistance of counsel by the failures of counsel to timely

inform him and preserve his equal protection challenge to the validity of the predicate prior

PFMA convictions for his 2015 felony conviction. As before, Watts asserted that, by

narrowly defining PFMA in terms of conduct directed at a partner “of the opposite sex,”

the pre-2013 versions of § 45-5-206, MCA, disparately applied only to heterosexual

couples, thereby subjecting heterosexual partner abusers (like him) to a criminal penalty to

which it did not subject same-sex partner abusers for the same conduct.

¶6        On various procedural and substantive grounds, the District Court denied Watts’

petition without a hearing. The court first concluded that any record-based IAC claim

regarding the 2014-2015 proceedings on his 2012 PFMA conviction was procedurally



3
    See M. R. Pro. Cond. 1.2(c) (limited representation).

                                                  4
barred by § 46-21-105(2), MCA, due to failure to raise it on direct appeal. The court further

concluded that any non-record-based claim regarding those proceedings were similarly

barred by § 46-21-102(1), MCA, due to failure to timely raise it within one year of the date

when the judgment became final on January 10, 2017. The court finally concluded that

Watts’ IAC claims regarding proceedings on his 2015 conviction were substantively

deficient because the petition did not state sufficient facts or law to establish the requisite

prejudice prong of an IAC claim in light of State v. Theeler, 2016 MT 318, ¶¶ 14-15,

385 Mont. 471, 385 P.3d 551 (rejecting similar equal protection challenge to pre-2013

PFMA statute by heterosexual offender on ground that severance clause saved it even if

assumed to unconstitutionally discriminate between heterosexual and same-sex offenders).

We agree with the District Court.

¶7     An IAC claimant has the burden of demonstrating that the subject performance of

counsel was both deficient (i.e., “below an objective standard of reasonableness” under the

totality of the circumstances) and prejudicial (i.e., that it was reasonably likely that the

outcome would have been different but for the deficient performance). Ariegwe v. State,

2012 MT 166, ¶¶ 15-16; 365 Mont. 505, 285 P.3d 424; Heath v. State, 2009 MT 7, ¶ 17,

348 Mont. 361, 202 P.3d 118; Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984). Upon our review of the petition, the pertinent record, and the subject

judgment in this case, we hold that the District Court correctly denied Watts’ petition for

postconviction relief on the stated procedural and substantive grounds without a hearing




                                              5
pursuant to § 46-21-201(1)(a), MCA (permissible dismissal without hearing if petition

conclusively shows no entitlement to relief). We affirm.

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

Internal Operating Rules, which provides for memorandum opinions. This appeal presents

no constitutional issues, no issues of first impression, and does not establish new precedent

or modify existing precedent.


                                                  /S/ DIRK M. SANDEFUR


We concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ INGRID GUSTAFSON
/S/ JIM RICE




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