                                                                                         August 6 2013


                                            DA 12-0572

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                           2013 MT 218N



STEPHEN R. MOCKO,

               Petitioner and Appellant,

         v.

STATE OF MONTANA,

               Respondent and Appellee.


APPEAL FROM:           District Court of the Nineteenth Judicial District,
                       In and For the County of Lincoln, Cause No. DV 12-20
                       Honorable James B. Wheelis, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Stephen R. Mocko, self-represented; Eureka, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General; C. Mark Fowler, Assistant
                       Attorney General; Helena, Montana

                       Bernard G. Cassidy, Lincoln County Attorney; Libby, Montana



                                                   Submitted on Briefs: July 17, 2013

                                                              Decided: August 6, 2013


Filed:

                       __________________________________________
                                         Clerk
Justice Beth Baker 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     Stephen Mocko appeals the Nineteenth Judicial District Court’s August 27, 2012

denial of his motion to amend his petition for postconviction relief. Mocko argues that

the Lincoln County Justice Court lacked jurisdiction over the criminal case against him,

that the criminal court failed to establish a factual basis for his guilty plea, and that he

received ineffective assistance of counsel during the criminal proceedings. He argues

that the District Court abused its discretion when it summarily denied his petition and

refused to allow him to amend it. We affirm.

¶3     In October 2009, Mocko was charged in Lincoln County Justice Court with

misdemeanor Driving Under the Influence of Alcohol, second offense. The citation,

written by a Lincoln County Sheriff’s Deputy, indicates that Mocko had a broken taillight

and was swerving on “Hwy 37 – River Dr.” Mocko eventually entered into a written plea

agreement with the State, pursuant to which he agreed to plead nolo contendere to

Reckless Driving in exchange for the State’s dismissal of the DUI charge. Mocko was

represented by counsel at the time the plea agreement was signed, though he also
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appeared pro se at times during the pendency of the case. While he had filed several

pretrial motions, Mocko did not reserve his right to appeal any of the Justice Court’s

adverse rulings. His written plea agreement stated his acknowledgment that “there is a

factual basis to believe that I am guilty of each offense, and that the violations occurred

within Lincoln County.” In addition, the plea agreement expressly waived “the right to

object to and move for the suppression of any evidence that may have been obtained in

violation of the law or constitution.”

¶4     On February 2, 2011, as agreed, Mocko entered his nolo contendere plea to

Reckless Driving and the State moved to dismiss the DUI charge. The court imposed

judgment the same day; in accordance with the plea agreement, it sentenced Mocko to

ninety days in the county detention facility, all of which was suspended, fined him $300

plus surcharges, and ordered Mocko to complete a chemical dependency assessment. No

appeal was taken.

¶5     On February 2, 2012, Mocko filed a petition for postconviction relief, along with a

seventy-page supporting memorandum and a motion to vacate the judgment. Mocko

claimed that the Justice Court lacked jurisdiction to adjudicate the charge against him

because the charging instrument was invalid and the State never filed a new document

charging him with Reckless Driving; that the Justice of the Peace acted outside her

jurisdiction by failing to disqualify herself after Mocko filed an affidavit of prejudice;

that the State violated his constitutional rights by failing to provide him with evidence in

its possession; that there was insufficient colloquy at the change of plea hearing to
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establish a factual basis for the charge of Reckless Driving; and that Mocko was denied

effective assistance of counsel. The District Court denied Mocko’s original petition on

April 2, 2012, without a hearing. His subsequent motion to alter or amend was deemed

denied.

¶6     Mocko sought leave to amend his petition to raise another claim of ineffective

assistance on the ground that his counsel failed to inform him that the plea agreement

could reserve the right to appeal the pretrial rulings against him. The District Court

denied the motion, ruling it untimely and without merit. Mocko’s appeal reiterates the

claims raised in his original petition and argues that the District Court abused its

discretion by denying him leave to amend.

¶7     We review a district court’s denial of a petition for postconviction relief to

determine whether its findings of fact are clearly erroneous and whether its legal

conclusions are correct. Rukes v. State, 2013 MT 56, ¶ 8, 369 Mont. 215, 297 P.3d 1195.

To prevail on a claim of ineffective assistance of counsel, a petitioner must show that

counsel’s performance was deficient and that the deficient performance prejudiced the

defense. Rogers v. State, 2011 MT 105, ¶ 15, 360 Mont. 334, 253 P.3d 889 (citing

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052 (1984)). In the context of a

claim of a plea of guilty, the petitioner “must establish prejudice by showing ‘there is a

reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and

would have insisted on going to trial.’” Hardin v. State, 2006 MT 272, ¶ 18, 334 Mont.

204, 146 P.3d 746 (citations omitted). A court’s determination of its jurisdiction is a
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conclusion of law that this Court reviews to determine whether the interpretation of law is

correct. City of Dillon v. Warner, 2012 MT 17, ¶ 5, 363 Mont. 383, 272 P.3d 41.

¶8     The record demonstrates that the Justice Court had jurisdiction. The original

citation was adequate to confer jurisdiction on the court and to “reasonably apprise the

accused of the charges against him, so that he may have the opportunity to prepare and

present his defense.” State v. Wilson, 2007 MT 327, ¶ 19, 340 Mont. 191, 172 P.3d 1264

(citation omitted); § 46-11-401, MCA. Mocko thereafter agreed that the facts would

show the offense occurred in Lincoln County. Once the parties entered into a formal plea

agreement, the court had authority to accept the plea agreement and to impose sentence

on the Reckless Driving offense. See § 46-12-211, MCA. Having entered a plea of nolo

contendere, Mocko waived all non-jurisdictional defects or defenses, including claims of

constitutional violations that occurred before the plea. Ellenburg v. Chase, 2004 MT 66,

¶ 21, 320 Mont. 315, 87 P.3d 473. Mocko’s filings demonstrate that he had raised many

of his concerns prior to the entry of his plea. In response to one filing, the Justice Court

advised him that his remedy if he disagreed with its rulings was to conclude the case in

that court and, if convicted, to appeal for a trial de novo in District Court. Mocko elected

to plead instead.

¶9     Finally, Mocko has not demonstrated error in the District Court’s denial of his

motion to amend his petition for postconviction relief.           Mocko argues that the

postconviction court improperly ruled his motion untimely because the court failed, in

violation of the postconviction statutes, to set a deadline for amendment of the petition.
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On the merits, he claims that his counsel was ineffective by failing to advise him that he

could reserve his right to appeal the court’s unfavorable pretrial rulings and states that he

only recently became aware that this possibility existed. Thus, he argues that he should

have been allowed to amend his petition to prove his claim of ineffective assistance. As

the District Court observed, however, even if Mocko could demonstrate that the State

would have agreed to, and the court would have approved, the reservation of issues for

appeal, he has not shown prejudice as required by Strickland. Mocko’s motion to amend

stated that but for counsel’s failure to inform him of the opportunity, Mocko “would have

reserved these issues.” He has not shown that he would have insisted on going to trial.

Moreover, he has not established a likelihood that those claims would have succeeded on

appeal. The District Court aptly noted that Mocko could not demonstrate how he was

prejudiced by his lawyer’s success in getting a second offense DUI charge dismissed in

exchange for a plea to Reckless Driving. Mocko’s plea agreement indicates he fully

understood the benefit of his bargain when he entered his plea.

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

our Internal Operating Rules, which provides for noncitable memorandum opinions.

Mocko entered a knowing and voluntary plea in exchange for a substantial benefit. He

has not met his burden on appeal to demonstrate error in the District Court’s conclusion

that his challenges have been waived or lack merit. The District Court correctly applied

the law and did not abuse its discretion in denying Mocko’s petition for postconviction

relief and motion to amend.
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¶11   Affirmed.



                          /S/ BETH BAKER


We concur:

/S/ MIKE McGRATH
/S/ JIM RICE
/S/ LAURIE McKINNON
/S/ BRIAN MORRIS




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