                                                                                        October 13 2015


                                           DA 15-0159
                                                                                       Case Number: DA 15-0159

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2015 MT 295N



CHUCK DEVLIN,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.



APPEAL FROM:           District Court of the Twentieth Judicial District,
                       In and For the County of Lake, Cause No. DC-06-92
                       Honorable Deborah Kim Christopher, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Charles Devlin, Self-Represented, Deer Lodge, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant
                       Attorney General, Helena, Montana

                       Bob Long, Lake County Attorney, Polson, Montana



                                                   Submitted on Briefs: September 16, 2015
                                                              Decided: October 13, 2015


Filed:

                       __________________________________________
                                         Clerk
Justice Patricia Cotter delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), 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     Charles Devlin appeals from the Twentieth Judicial District Court’s denial of his

second petition for post-conviction relief. We affirm.

¶3     Devlin has been before this Court multiple times since his April 2007 conviction

of kidnapping an intoxicated 18-year-old female and obstructing a peace officer. Devlin

claimed he was a “good Samaritan” attempting to assist this young woman by reuniting

her with her friends who had abandoned her, nearly naked, in Devlin’s truck. State v.

Devlin, 2009 MT 18, 349 Mont. 67, 201 P.3d 791; State v. Devlin, 2009 MT 55N; Devlin

v. State, 2011 MT 120N. These previous cases provide factual details and procedural

background that will not be repeated here. Devlin is a designated persistent felony

offender and is serving a 50-year sentence with no time suspended.

¶4     Devlin’s petition claimed the he had new evidence of his legal innocence in the

form of a newspaper article, an anonymous letter concerning a law enforcement officer,

and his discovery of the “control (mens rea) statutes” we addressed in State v. Beach,

2013 MT 130, ¶ 8, 370 Mont. 163, 302 P.3d 47, overruled in part by Marble v. State,

2015 MT 242, ¶ 32, 380 Mont. 366, 355 P.3d 742. We review de novo an actual




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innocence claim brought in a post-conviction proceeding. Such a claim is a mixed

question of law and fact. Beach, ¶ 8.

¶5     The District Court denied Devlin’s petition on the ground that it was procedurally

barred under multiple criminal procedure statutes applicable to post-conviction

proceedings, including §§ 46-21-102, -104, and -105, MCA. While noting that Devlin’s

petition and accompanying material “was unclear, repetitive, and did not provide the

[c]ourt with adequate support,” the District Court nonetheless carefully read and

reviewed the petition and addressed the issues raised.

¶6     Devlin’s “evidence of actual innocence” consisted of an August 14, 2010 letter

penned by an anonymous “concerned Lake County citizen” and sent to Devlin in prison.

The letter claimed that Devlin’s 2006 arresting officer is a habitual liar and that the staff

of the Lake County Sheriff’s Office and the judge presiding over Devlin’s proceedings

knew this. Devlin contends that he deserves a new trial based upon this letter. Devlin

also presented a news article published in a Missoula, Montana newspaper dated

December 11, 2010, addressing a young Missoula man who pled guilty to felony criminal

endangerment after abandoning an intoxicated minor to whom he had provided alcohol.

Lastly, Devlin claims that his “new evidence” of actual innocence is his discovery of

“control state statutes” this Court discussed in Beach.

¶7     Section 46-21-102(2), MCA, states:

              A claim that alleges the existence of newly discovered evidence that,
       if proved and viewed in light of the evidence as a whole would establish
       that the petitioner did not engage in the criminal conduct for which the
       petitioner was convicted, may be raised in a petition filed within 1 year of
       the date on which the conviction becomes final or the date on which the


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       petitioner discovers, or reasonably should have discovered, the existence of
       the evidence, whichever is later.

¶8     Without addressing whether the evidence presented by Devlin could satisfy the

“actual innocence” standard, it clearly does not meet the timeliness standard. Devlin

received the anonymously-written letter around August 14, 2010, and the news article

was published in December 2010. Additionally, our case in Beach was published on May

14, 2013. Devlin did not file his petition until September 29, 2014, well past the one-year

deadline set forth in the statute. The District Court did not err in concluding that his

petition was untimely.

¶9     Moreover, as noted by the District Court, his petition did not meet the requisites of

§ 46-21-104(1)(c), MCA, which provides that a petition for post-conviction relief must

“identify all facts supporting the grounds for relief set forth in the petition and have

attached affidavits, records, or other evidence establishing the existence of those facts.”

¶10    The purpose of our rules of criminal procedure is “to provide for the just

determination of every criminal proceeding . . . [and] to secure simplicity in procedure,

fairness in administration, and elimination of unjustifiable expense and delay.” Section

46-1-103, MCA. While our courts will grant pro se litigants a certain amount of latitude,

it is reasonable to expect pro se litigants to adhere to applicable procedural rules. Neil

Consultants, Inc. v. Lindeman, 2006 MT 80, ¶ 8, 331 Mont. 514, 134 P.3d 43. The

District Court correctly concluded that Devlin’s petition fails to comply with multiple

procedural rules.




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

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

the opinion of the Court, this case presents a question clearly controlled by settled law.

¶12    Affirmed.



                                                  /S/ PATRICIA COTTER

We concur:


/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE




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