No




                                                                No. 98-334




                           IN THE SUPREME COURT OF THE STATE OF MONTANA




                                                             1998 MT 220N




                                                      STATE OF MONTANA,




                                                      Plaintiff and Respondent,




                                                                       v.




                                                   RICHARD LEE MUSCHIK,




                                                      Defendant and Appellant.




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                                                               APPEAL FROM: District Court of the Fourth Judicial
                                                                                 District,

                                               In and for the County of Missoula,

                                     The Honorable John S. Henson, Judge presiding.




                                                     COUNSEL OF RECORD:




                                                              For Appellant:




                                        Richard Lee Muschik, Pro Se, Pekin, Illinois




                                                            For Respondent:




                                         Hon. Joseph P. Mazurek, Attorney General;

                              Patricia J. Jordan, Ass't Attorney General, Helena, Montana




                            Robert L. "Dusty" Deschamps, III, Missoula County Atorney;

                        Fred Van Valkenburg, Deputy County Attorney, Missoula, Montana




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                                              Submitted on Briefs: August 27, 1998




                                                     Decided: September 3, 1998

                                                                     Filed:




                                    __________________________________________

                                                                     Clerk

                          Justice Karla M. Gray delivered the Opinion of the Court.




¶ Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent but 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 to West Group in the quarterly table of noncitable cases
issued by this Court.

¶ Richard Lee Muschik (Muschik), appearing pro se, appeals from the Opinion and Order
entered by the Fourth Judicial District Court, Missoula County, in which the court refused
to revisit its earlier denial of Muschik’s petition for postconviction relief. We affirm.

¶ The sole issue on appeal is whether Muschik’s petition for postconviction relief was
time-barred.
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¶ Muschik pled guilty to two counts of criminal sale of dangerous drugs in the District
Court in 1990. Judgment and sentence were entered in September of that year. The District
Court sentenced Muschik to two concurrent terms of imprisonment, both suspended.

¶ In 1991, the State of Montana (State) petitioned to revoke the suspended sentences. In
August of 1992, the District Court did so, sentencing Muschik to prison and allowing him
to serve the state sentence in federal prison at the same time as his sentence on a federal
drug charge.

¶ In November of 1997, Muschik filed a document deemed a petition for postconviction
relief in the District Court. He raised four separate grounds for relief. The State responded
that Muschik’s petition was time-barred. The District Court denied the petition on the
basis that both the 5-year period of limitations for filing a petition for postconviction relief
contained in earlier versions of § 46-21-102, MCA, and the 1-year period of limitations
contained in § 46-21-102, MCA (1997), had passed and no clear miscarriage of justice
rendered Muschik's judgment of conviction a complete nullity.

¶ Muschik subsequently filed a "Motion for Summary Judgement to the Writ of Error
Corum [sic] Nobis." The State responded. Thereafter, the District Court issued its Opinion
and Order determining that Muschik’s "Motion" was essentially a repetition of the earlier
petition for postconviction relief which it had denied, refusing the revisit the issue and
denying the motion. Muschik appeals.

¶ Did the District Court err in concluding that Muschik’s petition for postconviction relief
was time-barred and in refusing to revisit the issue?

¶ At the time of both Muschik’s original conviction in 1990 and the revocation of his
suspended sentences in 1992, the period of limitations for filing a petition for
postconviction relief was within 5 years of the date of conviction. See §§ 46-21-102, MCA
(1989), and 46-21-102, MCA (1991). The Montana Legislature amended the statute in
1997 to shorten the period of limitations to 1 year from the date the conviction became
final. See § 46-21-102, MCA (1997). The amendment was effective on April 24, 1997,
prior to Muschik's filing of his petition for postconviction relief in November of 1997.

¶ Muschik’s conviction on the state drug charges was in 1990. The revocation of his
suspended sentences occurred in August of 1992. Using either of those dates, it is clear

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that the 5-year period of limitations for filing a petition for postconviction relief contained
in the 1989 and 1991 versions of § 46-21-102, MCA, had passed before Muschik filed his
petition in November of 1997. Moreover, if the 1-year limitation period contained in § 46-
21-102, MCA (1997), applied to Muschik's 1997 petition, that period had long since
passed. As a result, Muschik's petition was time-barred under § 46-21-102, MCA, and we
hold that the District Court did not err in so concluding.

¶ Muschik advances no argument pursuant to which the period of limitations contained in
§ 46-21-102, MCA, could properly be "waived" under the circumstances of this case.
Furthermore, we have held that neither ignorance of the law nor the need for time to
present a pro se defense constitutes an adequate reason to set aside the clear dictates of §
46-21-102, MCA. See Petition of Gray (1995), 274 Mont. 1, 2, 908 P.2d 1352.

¶ We hold that the District Court did not err in denying Muschik’s petition for
postconviction relief and in refusing to revisit that issue in response to Muschik’s
subsequent motion.

¶ Affirmed.



/S/ KARLA M. GRAY

We concur:



/S/ J. A. TURNAGE

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER

/S/ W. WILLIAM LEAPHART




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