                                                                                           October 9 2012



                                            DA 12-0256

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                           2012 MT 224N



LEONARD ROBERTS,

               Petitioner and Appellant,

         v.

STATE OF MONTANA,

               Respondent and Appellee.


APPEAL FROM:           District Court of the Twenty-First Judicial District,
                       In and For the County of Ravalli, Cause No. DV-11-727
                       Honorable Jeffrey H. Langton, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Leonard Roberts, (self-represented litigant); Shelby, Montana

                For Appellee:

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

                       William Fulbright, Ravalli County Attorney, Hamilton, Montana



                                                    Submitted on Briefs: September 19, 2012

                                                                Decided: October 9, 2012


Filed:

                       __________________________________________
                                         Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(d)(v), 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     Leonard Roberts appeals from an order from the District Court for the Twenty-

First Judicial District, Ravalli County, denying his petition for postconviction relief. The

issue on appeal is whether Roberts’ petition was procedurally barred by § 46-21-102,

MCA. We affirm.

¶3     In March of 2006, Roberts pled guilty to felony DUI (his eleventh DUI offense),

felony criminal endangerment, driving a vehicle with an expired registration, and driving

with a suspended or revoked license.       At the time of the offenses Roberts was on

probation from his tenth DUI conviction, a felony. The District Court sentenced him to

the Department of Corrections for five years suspended on the DUI charge; ten years

suspended on the criminal endangerment charge to run consecutively to the sentence for

the DUI; a $500 fine for the expired registration, suspended; and six months suspended

on the driving with a suspended license charge to run concurrently with the other

sentences. Those sentences were consecutive to Roberts’ then-outstanding sentence on

his tenth DUI conviction. Roberts completed the sentence from his tenth DUI and began

serving his fifteen-year suspended sentence on December 17, 2008.


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¶4    In April of 2009, the State filed a petition for revocation of Roberts’ suspended

sentence. The District Court conducted an evidentiary hearing on the petition to revoke

in June of that year and found that Roberts had violated the terms of his probation. The

District Court revoked Roberts’ probation after a dispositional hearing and committed

him to the Department of Corrections for fifteen years, with no time suspended. Roberts

appealed and we affirmed. State v. Roberts, 2010 MT 110, 356 Mont. 290, 233 P.3d 324.

¶5    In November of 2010, Roberts mailed a petition for postconviction relief to

Montana’s Attorney General and the Ravalli County Attorney. Roberts also mailed a

copy of his petition to the District Court judge in September of 2011. He did not file his

petition with the Ravalli County Clerk of Court, however, until December 8, 2011.

¶6    The District Court held that Roberts’ petition for postconviction relief was

procedurally barred by § 46-21-102, MCA, because he did not file his petition with the

clerk of court within one year of his conviction becoming final. Because the court found

that Roberts had made a good-faith attempt to raise his postconviction claims, however, it

nonetheless reviewed Roberts’ claims and found them to be without merit.

¶7    We have reviewed the record and hold that the District Court correctly determined

that Roberts’ petition for postconviction relief was procedurally barred by § 46-21-102,

MCA. Section 46-21-103, MCA, provides that proceedings for postconviction relief are

commenced by filing a petition with the clerk of the appropriate district court. Section

46-21-102, MCA, provides that the petition commencing postconviction proceedings

must be filed within one year of the conviction becoming final. Roberts’ conviction

became final on September 21, 2010, meaning he had until September 21, 2011 to file his

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petition with the Ravalli County Clerk. Although he apparently mailed copies of his

petition to various State officials before the deadline, Roberts did not file his petition with

the clerk of court until December 8, 2011, more than two months too late. Additionally,

even though Roberts’ petition is procedurally barred, we have reviewed the District

Court’s consideration of Roberts’ petition on the merits and agree with the court’s

analysis.

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

our 1996 Internal Operating Rules, as amended in 2006, which provides for

memorandum opinions.        There clearly is sufficient evidence to support the District

Court’s findings of fact and conclusions of law.

¶9     Affirmed.


                                                   /S/ MIKE McGRATH


We concur:


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




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