                                                                                     November 12 2013


                                            DA 13-0166

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                           2013 MT 340N



MATTHEW DEAN YOUNG,

               Petitioner and Appellant,

         v.

STATE OF MONTANA,

               Respondent and Appellee.


APPEAL FROM:           District Court of the Fourth Judicial District,
                       In and For the County of Missoula, Cause No. DV 11-1138
                       Honorable Karen Townsend, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Julio K. Morales, Matthew S. Sonnichesen, Morales Law Office, PC;
                       Missoula, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein,
                       Assistant Attorney General; Helena, Montana

                       Fred Van Valkenburg, Missoula County Attorney, Suzy Boylan, Deputy
                       County Attorney; Missoula, Montana


                                                   Submitted on Briefs: October 23, 2013
                                                              Decided: November 12, 2013

Filed:

                       __________________________________________
                                         Clerk
Justice Brian Morris delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), 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     Appellant Matthew Dean Young (Young) appeals from the memorandum and order of

the Fourth Judicial District, Missoula County, that denied as time-barred Young’s amended

second petition for post-conviction relief and further determined that Young had failed to

present newly discovered evidence to overcome the time bar. We affirm.

¶3     The State of Montana (State) charged Young with four counts of felony sexual assault

on March 12, 2001. Private counsel represented Young. Young asked the District Court to

appoint a psychiatrist, at the State’s expense, to report on Young’s mental condition as it

related to Young’s ability to form the necessary mental state or element required for each of

the crimes charged. The District Court denied the expenditure due to the fact that the Public

Defender’s Office did not represent Young. Young then entered a guilty plea pursuant to a

plea agreement with the State.

¶4     The District Court sentenced Young on October 24, 2001. The District Court

considered voluminous evidence at the sentencing hearing. Young’s counsel had presented

the District Court with two omnibus hearing memoranda. Young’s counsel raised no issue

with Young’s ability or fitness to proceed in the first memorandum. Young’s counsel



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indicated in the second memorandum that Young intended to pursue the affirmative defense

of mental disease or defect.

¶5     Young also had filed a plea of guilty and a waiver of rights that stated “I am not

suffering from any emotional or mental disability which makes me unsure about what I am

doing by pleading guilty.” The District Court also considered a 2001 psychological

evaluation of Young and follow-up recommendations. The District Court further evaluated

the pre-sentence investigation report and its attendant psychological evaluation. The District

Court lastly heard from Young about his responsibility for the crime, his remorse, and his

desire to seek further treatment.

¶6     The District Court determined that Young had made the conscious choice to abuse his

victims. The District Court sentenced Young to four 75-year sentences to run concurrently.

Young did not appeal his conviction or sentence.

¶7     Young filed a petition for post-conviction relief on December 23, 2002, in which he

alleged ineffective assistance of counsel in light of the plea agreement. Young claimed that

his counsel had led him to believe that the District Court would not impose the lengthy

sentence that the plea agreement suggested. Young further claimed that his counsel had

performed ineffectively by failing to object to the probation officer’s testimony concerning

Young’s prior psychological treatment. The District Court denied Young’s petition. Young

did not appeal that denial.

¶8     Young remained incarcerated at the Montana State Prison. Young’s counsel in 2005

requested that clinical psychologist Dr. George Athey perform a psychological evaluation of
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Young. Dr. Athey evaluated Young in early December 2005. Dr. Athey discussed the

results of the 2005 evaluation with Young’s counsel. Young’s counsel did not request a full

report as a result of that discussion. Young took no further action on the 2005 evaluation at

that time.

¶9     Young filed a second petition for post-conviction relief on September 1, 2011. Young

claimed that he had been incompetent when he entered his guilty plea in 2001, and that the

District Court had violated his right to due process by not ordering a competency evaluation

on its own. Young based his claims on a January 11, 2011, report from Dr. Athey. Dr.

Athey’s 2011 report summarized and aggregated prior clinicians’ evaluations of Young. The

report summarized the 2001 psychosexual evaluation that had been before the District Court

at sentencing. The report further summarized Dr. Athey’s 2005 mental health evaluation,

and a separate 1991 mental health evaluation. Young amended his second petition for post-

conviction relief on January 27, 2012, to include further documentation.

¶10    The District Court concluded that Young’s petition had been filed out of time under §

46-21-101, MCA. The District Court further decided that it had to consider the merits of

Young’s claim because it raised the “quasi-jurisdictional matter” of Young’s competency.

The District Court concluded that Young’s petition failed to unearth any “newly-discovered

evidence” to show more than a “conclusory allegation” that Young might have been

incompetent or unfit to stand trial. The District Court further concluded that Dr. Athey’s

report could not be considered newly discovered evidence when Dr. Athey had based the



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2011 mental health evaluation primarily on the 2005 mental health evaluation. The District

Court denied Young’s petition. Young appeals.

¶11    We review for clear error a district court’s findings of fact in disposition of a petition

for post-conviction relief. State v. Beach (Beach II), 2013 MT 130, ¶ 8, 370 Mont. 163, 302

P.3d 47. We review for correctness a district court’s conclusions of law in disposition of a

petition for post-conviction relief. Beach II, ¶ 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, that provide for memorandum opinions.

¶12    We agree with the District Court that Young’s decision to wait until 2011—six years

after publication—to act upon the 2005 mental health evaluation means that it cannot

constitute newly discovered evidence. The 2005 mental health evaluation alerted Young that

a further evaluation might be needed. Young additionally fails to address how further

evaluation of his mental health in 2011, could have reflected on his entry of guilty pleas in

2001. We agree with the District Court that, in light of what was known to the trial court at

the time, its failure sua sponte to make further inquiry into Young’s competency did not

violate his constitutional rights. It is manifest on the face of the briefs and the record before

us that substantial evidence in the record supports the District Court’s findings and that the

District Court correctly applied the law to these findings.

¶13    Affirmed.

                                                    /S/ BRIAN MORRIS

We Concur:

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/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ JIM RICE




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