                                                                                       June 10 2014


                                           DA 13-0440

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2014 MT 154N



ROBERT A. SHEPHERD,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.



APPEAL FROM:           District Court of the Twelfth Judicial District,
                       In and For the County of Hill, Cause No. DC-09-166
                       Honorable Robert G. Olson, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Robert A. Shepherd, self-represented, Deer Lodge, Montana

                For Appellee:

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

                       Gina Dahl, Hill County Attorney, Havre, Montana



                                                   Submitted on Briefs: May 21, 2014
                                                              Decided: June 10, 2014


Filed:

                       __________________________________________
                                         Clerk
Justice Laurie McKinnon 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 the

Montana Reports.

¶2     On September 9, 2009, Robert Shepherd was involved in a single-vehicle crash in

Havre. Shepherd was seriously injured, and his passenger, Joel Bell, died from injuries

sustained in the crash. Shepherd’s blood alcohol content at the time of the crash was later

determined to be .14 percent. When questioned by the police at the hospital as to where

Shepherd was sitting in the vehicle, Shepherd responded, “I was driving.” Pursuant to a

written plea agreement, Shepherd appeared with counsel before the Twelfth Judicial

District Court, Hill County, on October 15, 2010, and entered a no contest plea to the

charge of vehicular homicide while under the influence. Shepherd maintained he had no

memory of the crash, but never claimed that he was not the one driving the vehicle.

Additionally, circumstantial evidence supported that Shepherd was driving.              At

sentencing, the District Court noted Shepherd’s extensive history of prior DUIs, and

concluded that Shepherd “need[ed] to be supervised for as long as possible” and that the

only way to protect the public and deter future offenses was to incarcerate Shepherd. On

November 19, 2010, Shepherd was sentenced to thirty years in Montana State Prison with

credit for 177 days previously served. Shepherd did not file a direct appeal.




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¶3    On April 12, 2013, Shepherd filed a motion to withdraw his no contest plea.

Shepherd stated in his motion that he regained his memory of the night of the accident,

and now recalled that he was not driving.       He argued that this “newly discovered

evidence” supports a claim of innocence, which would overcome the time-bar on filing a

motion to withdraw guilty plea pursuant to § 46-16-105(2), MCA. He also maintained

that his plea was not voluntary, because he was mentally unstable and under the influence

of multiple medications that were prescribed to him after the accident. The District Court

denied Shepherd’s motion on the basis that it was time-barred pursuant to § 46-16-105,

MCA. Shepherd now appeals the District Court’s denial of his motion to withdraw.

¶4    A motion to withdraw a guilty plea must be filed within one year after the

judgment becomes final.     Section 46-16-105(2), MCA.       One way that a judgment

becomes final is “when the time for appeal to the Montana supreme court expires.”

Section 46-16-105(2)(a), MCA. A narrow exception to this deadline applies when a

convicted person raises a claim of innocence supported by evidence of a fundamental

miscarriage of justice. Section 46-16-105(2), MCA.

¶5    The written judgment of Shepherd’s conviction was issued on November 19,

2010. Shepherd did not file a direct appeal of his conviction or sentence. Shepherd’s

judgment became final on January 18, 2011—60 days after the issuance of the written

judgment. See M. R. App. P. 5(b)(i). Thus, Shepherd’s motion to withdraw, which was

filed April 12, 2013, is time-barred pursuant to § 46-16-105(2), MCA. In addition,

Shepherd has not provided sufficient evidence to support a claim of innocence. Although

he now claims to have recently recalled that he was not driving the night of the accident,


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this “newly discovered evidence,” considered together with evidence supporting his guilt,

is insufficient to establish a fundamental miscarriage of justice pursuant to

§ 46-16-105(2), MCA. See State v. Montgomery, 2010 MT 193, ¶ 18, 357 Mont. 348,

239 P.3d 929 (In affirming a district court’s denial of defendant’s motion to withdraw, we

held that defendant’s self-serving and unsupported claim of innocence did not constitute

evidence of a fundamental miscarriage of justice.).

¶6    As a final matter, Shepherd filed in this Court a Motion to Take Notice of Official

Report Excerpts to Supplement Appellant Brief. That motion is denied, as Shepherd is

attempting to supplement the record with new material that he failed to submit to the

District Court. It is well established that we are bound to the record on appeal, and that

we will not consider off-the-record allegations in determining whether a district court

erred in its findings. Bahm v. Southworth, 2000 MT 244, ¶ 11, 301 Mont. 434, 10 P.3d

99 (citing Groves v. Clark, 1999 MT 117, ¶ 22, 294 Mont. 417, 982 P.2d 446).

¶7    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. The

District Court’s interpretation of the statute is not incorrect, and furthermore Shepherd

has failed to establish a claim of innocence supported by evidence of a fundamental

miscarriage of justice pursuant to § 46-16-105(2), MCA.

¶8    Affirmed.


                                                /S/ LAURIE McKINNON




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We Concur:

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




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