                                           No. 04-377

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2005 MT 206N

DAVID BACON,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Respondent.



APPEAL FROM:         District Court of the Twenty-First Judicial District,
                     In and For the County of Ravalli, Cause No. DC 02–76
                     Honorable Jeffrey H. Langton, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     David Bacon, Pro Se, Shelby, Montana

              For Respondent:

                     Hon. Mike McGrath, Attorney General; Jennifer Anders,
                     Assistant Attorney General, Helena, Montana

                     George Corn, Ravalli County Attorney; T. Geoffrey Mahar,
                     Chief Deputy County Attorney, Hamilton, Montana



                                                   Submitted on Briefs: July 19, 2005

                                                              Decided: August 23, 2005


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. Its case title, Supreme Court cause number and disposition shall be included

in this Court’s quarterly list published in the Pacific Reporter and Montana Reports.

¶2     In November of 2003, David Bacon (Bacon) petitioned for postconviction relief in the

Twenty-First Judicial District Court, Ravalli County. Bacon requested the District Court

allow him to withdraw his guilty pleas entered in the underlying action because he received

ineffective assistance of counsel in that his retained counsel had a conflict of interest. The

District Court denied the petition on the basis that Bacon had failed to establish any facts

supporting his allegation that defense counsel had a conflict of interest. Bacon appeals from

the order denying his postconviction relief petition. We affirm.

¶3     On appeal, Bacon contends the District Court erred in denying his postconviction

relief petition because his counsel in the underlying proceeding was ineffective in failing to

request that Bacon undergo a psychiatric evaluation. He further asserts that a psychiatric

evaluation would have established his lack of mental capacity to understand his actions at

the time he committed the crimes or to enter voluntary and knowing guilty pleas. The State

of Montana (State) responds that we should decline to address Bacon’s arguments on appeal

because he failed to raise them in his petition in the District Court. We agree.




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¶4     We have determined to decide this case pursuant to Section 1, 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. Postconviction claims not raised in the original or an amended petition in the district

court cannot be raised for the first time on appeal and, if raised, we will decline to address

them. State v. Garner, 2001 MT 222, ¶ 45, 306 Mont. 462, ¶ 45, 36 P.3d 346, ¶ 45.

Consequently, we decline to address Bacon’s argument regarding the psychiatric evaluation

because it is raised for the first time on appeal. We hold, therefore, that Bacon has failed to

establish error in the District Court’s denial of his postconviction relief petition.

¶5     Affirmed.



                                                          /S/ KARLA M. GRAY


We concur:


/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
/S/ PATRICIA O. COTTER
/S/ JIM RICE




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