                                          KO.01-622

              IN TKE SUPREME COURT OF T I E S'fATI:. 01' RfONTXN.~\

                                         2002 ?;ZT 321N



STATE OF MOUTASA,

             Plaintiff and Respondent,

     V   .
RAXDALL BOYD TAYLOR,

             Deferidant and Appellant.



APPEAL FROM:        District Court of the Thirteenth Judicial District,
                    In and for the County of Yellowstone,
                    Honorable Gregory R. Todd, .ludge Presiding


COIINSEL OF RECORD

             For Appellant:

                    Chad Wright. I\ppeklate Defender, IIelena, hlontzd~la

             For Respondent:

                    Honorable klike McGrath, t\ttomey General; .fohn Paulson, Assistant
                    Attorney Gecicral. iielcna, Montana

                    Decl~lisPaxinos. Coucity Attorney; Melodee Hancs, Dcpnty County
                    i\1torneyl Billings, Montana



                                                   Submitted on Briefs    May 0, 2002

                                                                Decided   i>ecember i9, 2002
.ii;stice J i m Ricc deii\.ercd thc Opinion oi'tirc C'ourr,
r: 1
I;
        pursuant ti) section     [,   pdiiLr:,ph 3jc'); >dItonti;iia 9,iprerne C'oiirt 1996 hlitcrrai
                                        .-a-S




Operating Rules: the following ciecision shall n o t hc citcci as preccdcnr. 11 shall hc iilcd as

a p~iblic                   Clerk of the Suprcnic C'ourt anii shaii be reported by case titlei
        document with t l ~ c

Supreme Co~irt
             cause number and result to tlie State Reporter Publishing Company and to

West Group in the quarterly table of noncitable cases issued by this Court.

72     Ranila11 Boyd 'Taylor (Taylor) appeals from the District Court's summary ciisrnissal

of his request for postconviction relief. We affirm.

ei 3
,-      raylor raises the follo\viiig issues on appeal:

74      I . Did the District Court err in dismissing l'aylor's request ibr posrco~ivictionrelief

witlrout rccluiring a respotisivc pleading from the State or condccting an c~icien~iary
                                                                                     hearing?

       2. Dici the District Court err by FCliling appoint counsel to rcprcscnt Tayior it1 regard
                                                to

to his postconviction claims:'

                                                Background

76     i'aylor was charged with assault on a police officer, a felony, misdemeanor assault.

and driving under the influence, a misclcrncanor, arising out of events lvhicli occul-red on

Nove~iiberI , 1997. t~ouriselRoberta Ilrclv was :ippoiilted to represent him o n the charges.

O n p r i l 17, 1098. Tayior filed an itcknowledgment of W:river of Kigiits by Aifori! Plcaand.

plirsrrant to a plea agreement, entered guilty pleas to the charges. Prior to seritcncing, Taylor

filed:pro sc; a ~'Ztotion Withdraw Plea and Appoint Effcctivc C'ompeicnt Coancc? [sicl."
                        tct

l'hc District Court appointed counsel David Ilukc to represent Ta)-!or on iiis rnotiitn to

                                                    1
                                                    '"
lwithdr-av;.ihc guilty picas. and conducted a hearing on the motiton on Novcriiber 19; 1918.

*it the Ilearing; Taylor coritcncicd that Drew had riot ciTcciivcly rcprcscnieii him_anihrilar hc

(lid not undcrstal~d nature orthe "Allhrd" guilty pleas hc had eotcred to ihc charges. 7'ke
                    the

Ilistrict Court cntercd an order concluding that Drew had provided effcctivc assistance, that

Ta)-lor's picas were voluntarily, intelligently and knoivirigly made, and that good cause did

not exist to allow 'Taylor to \t.ithdra\x: his guilty pleas.

77      Follo~-ins
                 sentencing? Taylor appealed to this Court. Duke continued to represent

'Taylor on appeal, and filed an appellant's brief raising four issues, including inci'fective

assistance of'co~lnseland the District C'iiurt's derrial of Taylor's n~otionro withdisa. h i s

guilty plcas. On April 1 1 , 2000, this Court issued an onpublished opinion bvhich affirined

Taylor's convictions. Src~tc, T q l o r , 2000 M'T 90X.'
                            v,


78      On March 2 I I 2001, Taylor filed a pleading ~vitlitliis C'ourt styled "Petition fbr

v, -,
 'l~dtionfro111 IJncolistitutional Conviction,"          in Cause Yo. 0 1-20 I . Taylor argued that his

trial counsel was inci'fective because she had essentially forced him to plead guilty. He

further suggested that there had been a conspiracy between the court and his counsel to

deprive him of duc process and he had beel? tricked into pleading guilty. O u r order of April

24. 2001. stated:
                 .   ~
                Ihis Court has already held that Taylor's plea was volnnti~i-y, See
        Torlor.. Yj 8-23. Because the voluntariness of i'ayior's plea was actually
                 ,       ,,


        rcsol~ed direct appcal, thc doctrinc of res juiliriitri bars further ri..iicw of'
                  oil



         '011 issue unrelated to this appeal, tile ('ourt in Sraic, 1.. Y[r,.i~~r.
              an                                                               \acai;.ci s~.n~ciicing
                                                                                                   coiiditioi~s
relating to registration as a violeiir oi'fencler and i)h':\ testing.
           that issue and, accordingly; we dcciinc to adtircss this argcirncnr in thc coirtcxt
           elf Taylor's instant petition. [[itations omitted.]

Wc also deternlincd that the other claims raised in 'I'tiyIcrr's petition ronstitutal it collateral

attack on his convicxions which appropriately shouid hc hmiiyi~rby a petition for

postconviction        relict    and directed the petition to bc forwarifeci to ~ l l e
                                                                                     'I'l~irtcenrh Judicial

L>istrict Court.

q      0     n May 7, 2001: laylor filcd a "Motion to Vacate Sentcnce Exceeding Maximnnl

Penalty under Alford Plea Agreement" in the District Court. The District Court deerned this

petition to be a petition for writ of habeas corpus. and deemed the pctition forwarded from

this Court to be a petition for postcon\-iction relief. On July 20, 2001. the District Court

conducted a status hearing actdressing both of Taylor's filings. Taylor was in attendance.

At the hearing, the District Cour-t sumlnarily dislnisscd Taylor's petition^.^

'110       Taylor then appealcd from the disn~issal his postconviction petition. 'The District
                                                  of

Court yrantcd his request to proceed ir~,/i,nnc~[rirz~[~t'ri.s
                                                        and appointed thc Apptllate 1)cfender

to represent Taylor on the appeal. On December 5, 2001, the .Appellate I>cknder filed a

motion to ~vitlrdrawas counsel of record and submitted a brief pursuant to 121rder.i v.

('ill(fi~rr~icr (1967), 386 iJ.S. 738: 87 S.Ct. 1306, 18 L.Ed.2d 493, referring !ci matters of

record that might argtrably support Taylor's appeal. On December 17. 2001. Taylor filed a

docurnent with this Court indicating he was satisfied with the .4ppellate Dcti-nder3sArzr1ei:s

bricf. O n .lanuary 29; 2002, we entered an ordcr denying the motion to tvithdrtiw, on the


                e ..
           :?I.h, I 11strict(ourt's dcnial ot'l~aylor'spctition for liabea c o i p i t s i b not 1)cti)rethc ('oi~ri

                                                              4
.rounds that faylor wished to rely on the i"ippeilatc i1ckndcr.s brieE ~vhich found had
e~
                                                                             :vc

raised non-fri\o!ous issues on appeal.

                                      Standard of Review

lil 1   We revie\\- a district court's conclusions of law in a dcniai of a pcrition foi.

postconviction rclief to clcternlitic lvhethcr ilie conclusions arc concct. ifni!;.~cjn Srnie,
                                                                                      1.
                                                                                       :


2000 M-i' 210,y 18,301 Mont. 135. ' 18, I0 P.3d 49- 71 18, cerl. clerzieil: 532 U.S. 928, 121
                                  ;

S.C:t. 1372, I49 L..Ed.?d209 (200 I ) . Discretionary rulings inpostccinviction proceedirtgsarc

reviewed for abuse of discretion. Store v. Ncirzson, 1999 MT 22hl q; 0,296 hont. 82. [' 0.988

P.2d 299.    l! 9.
                                           Discussion

71/12   1. Did the llistrict Court err in dismissing Taylor's reijuest for postcoi~victionrilicf

without requiring a responsive pleading fioni the State or conducting an eviiientiary l~caring'!
        -~

"13      taylor contends that the District Court erred b\- dismissing his postconviction filing

~'itho~it
      requiring a response from the Stiiic. Although he concedes that his petition did nor

provide any new evidence, he contends that he offered new information about why his guilty

pleas were not voluntary which had riot been previously considcrcci by either the District

Court or this Court. including contentions that the plea agreement hati becn altered. the

sentcncc \+-as excessive_ and that the District Court had imposed a higher sentcilce in

retaliation for Taylor's attempt to witl-rdraw his guilty pleas. Taylor asserts that thesc claims

tverc not record based, and tlrerefore, pursuant to .Vriitr   I!,   ,';c./iuJi; Zilil l ,M'P   130, 305 ,\faat.
427, 28 p,3d 1)3 which rc\crsed a district court's summary disrnissai c ? f a pciitior! kir.
              !7.

postcon\-ictiun rclict thc District Court crred in summarily dismissing his pcriiiorr,

413    l'hc Stacc argues that tire District Court propcrly dismissed the pctitiori pur;s'uant to

3 46-2 1-201,XlC-1. which provides that adistrict court may disiniss a postconviction pcrition
\vithout a responsive pleading from the State if the petition and case record conelusivciy

demonstrate that the petitioner is not entitled to relief. The State contends that Taylor's

claims that his guilty pleas were not voluntary, that he was subjected to a conspiracy whicli

deprived him of due process, and that his sentence exceeded that which %;asagreed upor1 in

the plea agreement are not new claims. Rather, the State asserts that all of'the clriims are

record based complainrs which allege ineffectiveness ofTaylor's counsel iindalsoallegc that

the circumstances ieading up to the entry of 'Taylor's guilty pieas establish that he entered

involuntary pleas. l'he State argues these lilatters were adclrcsscd, or couicl havc been

addressed, at the hearing on 'Taylor's rnotion to withdraw his pleas.

1      The Statc points out that Taylor's petition refers exclusively to thc transcript of thc

change of plea hearing, and he did not present, or suppor? \vitlr affidavits. any non-record

hctual allegations that would warrant further review. Finally, the State ciistingnishes the

holding in Scj~q~I'l>y
                    explaining that, in .Yclri!ff;we remanded for-rippointmcnt o f iounsci and

an evidcntiary liearingotl the issucs ofineffective assistance ofcounsel and thc vo1unt:irincss

ofthe plea. Here, the District C'oul? appointed new counsel and cc>nductedo hearing on ihosc

issues prior to 'Faylor's sentencing. '('he District Court's denial of Tayfitr's motion to

ulthdra\%his pleas mas tltett eonstdered and affirmed on appeal

                                               6
I: ? 6   Mi: concl~zde the State's argument is well tairen. 'I~ayIor'siengrlhy postci?n:ictici~:
                     that

                                ofhis co~ttcntions his picas wrrc in\ ciiuarary anci based
pctirion is simply a re-argumc~lt                [hat

                                             resolved by this Court in Taytor's first appca!,
on ineffective assistance of cotinsel. issr~es

Pursuant to 8 46-21-lO5(2). ?i.!('rt, 'Paylor cannot litigate titese issues again. F:tirahcr. to the

extent that Taylor conterids that the District Court imposed a 11igher sentence in retaliation

for his attempt to withdraw his pleas. he offers no Facts whatsoe~er support ofthc claim.
                                                                   in

7        The record allous for no other conclus~onthan Taylor's pleas uerc \oluntanly

entered. The District Court properly co~lcludcd Taylor's petition raised no new issues,
                                              tliat

and therefore, a dismissal ~vithour
                                  requiring a rcsportse by the State or an cvicien~.iaryhearing,

pilrsuarrt to   3 40-2 1-201, MC4, \$<as
                                       justified.

"1 X
 ,I      2. Did the District ('ourt err by failing to appoint counsel to represent Taylor in regard

to his postcon\:iction claims?

I        Alternativcly,'l'aylor clai~lis thc District Court violated 4 45-21-201!2). " . i , ;
                                       that                                           \ ! :by
                                                                                            4

not appointing counsel to represent hint at the heitring conducteci by the District Cittirt,

relying on this Court's decision in ,';uvi~~.irlgcwState. 2001 >IT' 10, 304 Mont. 07. i 8 1'.3d
                                                 v.

008,

1\20     Seetior?36-21 -201(2j, MC'A, provides that if a postcotlviction hearing is requirud, the

                                       petitioners. Aithough noting that a cou1-t may not
court slrall appoint co~insc! i~ldigeilt
                            for

need to conduct a hcarii~g consider postconviction clainrs. the Court held vthen it docs so,
                         to

                                                                       77.
it is obligated to appoint counsel for the petitionet-. .S'~vero.iirg~~:i.n. 'I'aylor t!lus argues that
he should have hecn appointed cotrnse! wheri appearing hcibrc tile iiistricr C'ouri on July 20,

200 1

521         Srate argues that Sweclrirzgen did not obligate appoinirncnt ofcoitnscl ibr '1-aylor.
        -1.1~

because the hearin: on July 20. 2001, was, in realityl a status conferc.nccl and not an

cvidenriary hearing. The State notes that the court tooli no testimony or othcr evidence, but

simply a!lo\ved Taylor an opportunity to speak in support of his petition.

722     A transcript of the proceeding, entitled "Hearing on Defendant's Petition . . ." was

prepin-ed. The transcript reveals that the District Court commenced the matter by asking for

a starus report on the two petitions filed by Taylor. ?lo tcstin:ony or evidcncc was taken.

'l'he State offered no argument on tlre merits of the petitions. Follu\ving clarification of'the

nature of Taylor's filings, the District Court observed ihat the issues raised by Taylor

appeared to have been resolved by earlier rulings by this C o u ~ t and pave cipportunit;; for
                                                                    ,

'l'aylor to respond.

t121    We c o n c l ~ ~ that tlie "hearing" herein was condt~cted perfunctory purposes9was
                         de                                       for

not "required" \vithin the meaning of $ 16-21-201(2), MCA, and thus, did not mandate

appointment of co~tnscl Taylor. It was nor ncccssary for 'Paylor, in contrast with the
                      for

petitioner in Sltacri-ingetl, to present evictence 01. examine witnesses. Therefoioi-e3 Districr
                                                                                       the

C:oiirt did not crr by not appointing counsel for this purpose,

t:24    The District Court is affirmed.
