                                           DA 06-0332

                     IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2007 MT 188N


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

KODIAK QUESNEL,

              Defendant and Appellant.




APPEAL FROM:           District Court of the Twenty-First Judicial District,
                       In and For the County of Ravalli, Cause No. DC 02-148
                       Honorable Jeffrey H. Langton, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Kodiak Quesnel, pro se, Deer Lodge, Montana

                For Respondent:

                       Honorable Mike McGrath, Attorney General; Tammy Plubell,
                       Assistant Attorney General, Helena, Montana

                       George Corn, County Attorney, Hamilton, Montana



                                                   Submitted on Briefs: May 16, 2007

                                                              Decided: August 6, 2007


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice 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 shall be reported by case title, Supreme Court cause number and result to the

State Reporter Publishing Company and West Group in the quarterly table of noncitable

cases issued by this Court.

¶2        Kodiak Quesnel (Quesnel), pro se, appeals from the order of the Twenty-First

Judicial District Court, Ravalli County, denying his motion to withdraw guilty plea. We

affirm.

¶3        When reviewing a district court’s denial of a motion to withdraw a guilty plea, this

Court reviews the district court’s findings of fact to determine if they are clearly

erroneous and its conclusions of law to determine if they are correct. State v. Leitheiser,

2006 MT 70, ¶ 12, 331 Mont. 464, ¶ 12, 133 P.3d 185, ¶ 12.

¶4        On April 17, 2006, Quesnel, pro se, moved to withdraw his guilty plea in Cause

No. DC 02-148. In that cause, Quesnel pled guilty to sexual intercourse without consent,

a felony, and to sexual assault, a felony, on March 3, 2004. The court accepted Quesnel’s

pleas and filed its written judgment on August 9, 2004, imposing a six-year deferred

sentence upon Quesnel with numerous conditions. Thereafter, three petitions to revoke

were filed, the first two resulting in revocation and re-sentencing. The third, resulting




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from Quesnel’s escape from a Billings pre-release center, was dismissed on motion by

the State to expedite Quesnel’s placement at Montana State Prison on other charges.

¶5     At the time Quesnel entered his guilty pleas, § 46-16-105(2), MCA (2003),

provided:

       At any time before judgment or, except when a claim of innocence is supported
       by evidence of a fundamental miscarriage of justice, within 1 year after judgment
       becomes final, the court may, for good cause shown, permit the plea of guilty or
       nolo contendere to be withdrawn and a plea of not guilty substituted.

¶6     Here, the District Court filed its written judgment on August 9, 2004. Quesnel had

sixty days in which to appeal his conviction, but did not do so. See M. R. App. P. 5(b).

Consequently, Quesnel’s judgment became final on October 9, 2004, and pursuant to

§ 46-16-105(2), MCA (2003), he had one year from that date to file his motion to

withdraw guilty plea. Quesnel filed his motion on April 17, 2006, well after the one-year

statute of limitations under § 46-16-105(2), MCA (2003), had expired.

¶7     Although claiming a miscarriage of justice that would allow filing of his motion

beyond the time set forth in the statute, Quesnel has failed to demonstrate that he is

actually innocent of the crimes to which he pled guilty. Accordingly, we hold that the

District Court properly determined that Quesnel’s motion to withdraw guilty plea was

time-barred under § 46-16-105(2), MCA (2003).

¶8     Having reviewed the record in this matter, it is appropriate to decide this case

pursuant to our Order of February 11, 2003, amending Section I.3 of our 1996 Internal

Operating Rules and providing for memorandum opinions. It is manifest on the face of

the briefs and the record before us that the appeal is without merit because the findings of

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fact are supported by substantial evidence, the legal issues are clearly controlled by

settled Montana law which the District Court correctly interpreted, and there was clearly

no abuse of discretion by the District Court.

¶9     We affirm.

                                                    /S/ JIM RICE



We concur:


/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ JOHN WARNER




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