                                          DA 06-0618

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                      2007 MT 193N



BRIAN LOPEZ,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Respondent.



APPEAL FROM:          District Court of the Seventh Judicial District,
                      In and For the County of Dawson, Cause No. DC 98-008
                      Honorable Richard A. Simonton, Presiding Judge

COUNSEL OF RECORD:

               For Appellant:

                      Brian E. Lopez, Pro Se; Shelby, Montana

               For Respondent:

                      The Honorable Mike McGrath, Attorney General; Mark W.
                      Mattioli; Helena, Montana

                      Scott Herring, Dawson County Attorney, Glendive, Montana



                                                 Submitted on Briefs: July 3, 2007

                                                            Decided: August 14, 2007


Filed:

                      __________________________________________
                                       Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.



¶1    Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and its case title, Supreme Court 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    Brian Lopez (Lopez) appeals from the order entered by the Seventh Judicial

District Court, Dawson County, denying his motion for appointment of counsel to pursue

postconviction relief. We affirm. The sole issue raised is whether the District Court

abused its discretion in denying Lopez’s motion for appointment of counsel.

¶3    In February of 1999, the District Court sentenced Lopez to an eight-year term in

the Montana State Prison (MSP), with two years suspended, for the felony offense of

sexual intercourse without consent. The District Court simultaneously sentenced Lopez

under a separate cause number to a 14-year term in the MSP, with eight years suspended,

for an additional charge of felony sexual intercourse without consent. On January 5,

2005, Lopez was discharged from the MSP and began serving the suspended portions of

his sentences. The District Court subsequently revoked Lopez’s suspended sentences

because he violated several of the terms and conditions of his probation. The court

sentenced Lopez to serve the entirety of the previously suspended terms in the MSP with

the sentences to be served concurrently. On July 18, 2006, Lopez moved the District

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Court to appoint him counsel to assist him in researching and preparing a petition for

postconviction relief. The District Court denied the motion, concluding that Lopez had

failed to identify any basis supporting a claim for postconviction relief and that any

postconviction petition raising claims related to Lopez’s underlying convictions would be

untimely. Lopez appeals.

¶4     Section 46-8-104, MCA, provides that “[a]ny court of record may order the office

of state public defender . . . to assign counsel . . . to defend any defendant, petitioner, or

appellant in any postconviction criminal action or proceeding if the defendant, petitioner,

or appellant desires counsel and is unable to employ counsel.” As Lopez properly

recognizes, a court’s determination to appoint or not appoint counsel pursuant to this

statute is completely discretionary. See Dillard v. State, 2006 MT 328, ¶ 12, 335 Mont.

87, ¶ 12, 153 P.3d 575, ¶ 12.

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

our 1996 Internal Operating Rules, as amended in 2003, which provides for

memorandum opinions. It is manifest on the face of the briefs and the record that the

appeal is without merit because the issue raised is one of judicial discretion and Lopez

has failed to establish that the District Court abused its discretion in denying his motion

for appointment of counsel.

¶6     Affirmed.


                                                  /S/ KARLA M. GRAY




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We concur:

/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ JIM RICE




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