                                          No. 01-131

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2002 MT 237


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

BRIAN GRAHAM,

              Defendant and Appellant.



APPEAL FROM:         District Court of the Eighteenth Judicial District,
                     In and For the County of Gallatin,
                     Honorable Mike Salvagni, Judge Presiding


COUNSEL OF RECORD:

              For Appellant:

                     Chad Wright, Appellate Defender, Helena, Montana


              For Respondent:

                     Honorable Mike McGrath, Attorney General; Mark W. Mattioli,
                     Assistant Attorney General, Helena, Montana

                     Marty Lambert, County Attorney; Rob Brown, Deputy County Attorney,
                     Bozeman, Montana



                                                    Submitted on Briefs: April 11, 2002

                                                                Decided: October 24, 2002

Filed:

                     __________________________________________
                                       Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1     Brian Graham (Graham), by counsel, appeals from the District Court’s order denying

his request for postconviction relief. The sole issue which we consider is whether the District

Court properly denied postconviction relief. We hold that the trial court did not abuse its

discretion in denying Graham’s request for postconviction relief. Accordingly, we affirm.

                                         Background

¶2     On February 16, 1997, the Price Rite drug store in Bozeman,

Montana, was burglarized.                 Approximately $2,800 of prescription

drugs and $650 in cash were stolen.                     Three days later, Missouri

Headwater Drug Task Force investigators went to the residence of

Graham’s girlfriend, Andrea Lutes (Lutes), regarding an unrelated

drug    investigation.            Lutes     indicated       that     she    had    possible

information about the Price Rite burglary.                      Lutes agreed to go to

the Law and Justice Center with the investigators where she was

interviewed.

¶3     Based on Lutes’ information, investigators obtained a search

warrant for the residence of Kristofer May (May), a former Price

Rite employee.        Graham had just moved into May’s trailer before the

burglary.      During the search police found various drugs and bundles

of cash hidden in May’s trailer.                    In the area where Graham had

slept, police found a needle and a tubex of either morphine or

Demerol.      Except for the tubex, all the other drugs were found in

May’s room.

¶4     Shortly thereafter, Graham and May were charged by information

with the same three counts: Count I “Burglary,” Count II “Theft,”

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and Count III “Criminal Possession of Dangerous Drugs.”          The

information specifically listed the four dangerous drugs that

police had found in the trailer: morphine, Demerol, Methadone and

Ritalin.   In April 1997, May entered into a Cooperation and Plea

Agreement with the Gallatin County Attorney’s Office.    As part of

the agreement, May was required to give information about Graham’s

involvement in the burglary.    Ultimately, May received a deferred

sentence of six years for each count.

¶5   Graham, who initially pled not guilty to all three counts,

entered into a plea agreement with the State.         The agreement

stipulated that Graham would plead guilty to Count III, “Criminal

Possession of Dangerous Drugs,” in exchange for the dismissal of

the burglary and theft charges.   Graham entered a plea of guilty to

the charge of criminal possession of dangerous drugs in June 1997.


¶6   During his guilty plea colloquy the court and Graham had the

following exchange:

     THE COURT: I’ll ask you, Mr. Graham, if you would tell me
     in your own words what you did that causes you to plead
     guilty to the criminal possession of dangerous drugs . .
     . .

     GRAHAM: I accepted a two tube of some liquid drugs of
     some type–I’m not exactly sure–along with a syringe from
     Kristofer May, and it was in my possession at the time
     that the police came to and did a search on the house.
     It was in my room. It wasn’t on my personal possession.

     THE COURT: Why do you say you don’t know what it was?

     GRAHAM: It was a liquid of some type, a liquid drug like
     that Kristofer May gave me.

     THE COURT: Was it water?


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       GRAHAM: I’m not sure if it was Demerol or morphine or
       something like that.

       THE COURT: Did he tell you what it was?

       GRAHAM: No, not exactly. I knew it was either                        morphine
       or Demerol or one of the three he had.

     THE COURT: So you knew that you were possessing an illegal
drug?

       GRAHAM: Yes, I did.

Following his plea, Graham received the maximum sentence of five

years with no time suspended.

¶7     Almost two years after his guilty plea, Graham filed a pro se

petition for postconviction relief.                  Graham now contends that at the time he

pled guilty to the possession of dangerous drugs, he believed he was pleading guilty to

possession of only two drugs, Demerol and morphine, and not to possession of all four drugs

listed in the information. Therefore, he asserts that he is actually innocent of possessing the

four drugs listed in the information. He also argues that he received ineffective assistance of

counsel and that if his counsel had advised him that he was pleading guilty to possession of

all four drugs, he never would have pled guilty to the charge. Lastly, Graham contends that

his guilty plea was neither knowing nor voluntary and that he should be allowed to withdraw

his guilty plea.

¶8     In an order dated September 21, 1999, the District Court

concluded that although Graham’s petition for postconviction relief

was not filed within one year of his conviction, the issues raised

by the petition were significant and should be disposed of on the

merits.            Following an October 2000 evidentiary hearing, the


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District Court denied Graham’s petition for postconviction relief.

 This appeal follows.        We conclude that the District Court’s

decision was correct and, therefore, must be affirmed.

¶9    The issue presented on appeal is as follows:

      Did the District Court properly deny postconviction relief?

                            Standard of Review

¶10   We review the denial of a petition for postconviction relief

to determine whether the trial court’s findings of fact are clearly

erroneous   and   whether    its    conclusions     of   law   are   correct.

Discretionary     rulings   in     postconviction    relief     proceedings,

including rulings relating to whether to hold an evidentiary

hearing, are reviewed for abuse of discretion. Mallak v. State,

2002 MT 35, ¶12, 308 Mont. 314, ¶12, 42 P.3d 794, ¶12; State v.

Hanson, 1999 MT 226, ¶ 9, 296 Mont. 82, ¶ 9, 988 P.2d 299, ¶ 9.

                                   Discussion

¶11   With respect to postconviction proceedings, the Legislature

has set forth a specific statute of limitations requiring that a

petition for postconviction relief be filed within one year of the

date of conviction.    Section 46-21-102, MCA (1997).          At the outset,

while this Court has held that the statutory time-bar may be waived

when there is a clear miscarriage of justice, this exception does

not apply unless the petitioner provides newly discovered evidence

that demonstrates his actual innocence.           State v. Placzkiewicz,

2001 MT 254, ¶ 12, 307 Mont. 189, ¶ 12, 36 P.3d 934, ¶ 12; State v.

Redcrow, 1999 MT 95, ¶¶ 33-34, 37, 294 Mont. 252, ¶¶ 33-34, 37, 980

P.2d 622, ¶¶ 33-34, 37.

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¶12   For a petitioner to prove actual innocence he must do more

than show that a reasonable doubt exists in the light of the new

evidence, but rather that no reasonable juror would have found the

defendant guilty.        Redcrow, ¶ 33 (citing Schlup v. Delo (1995), 513

U.S. 298, 329, 115 S.Ct. 851, 868, 130 L.Ed.2d 808, 837).                     Because

a petitioner must demonstrate that no reasonable juror would have

found him or her guilty, the fundamental miscarriage of justice

exception is extremely rare and limited to extraordinary cases.

Redcrow, ¶ 33 (citing Schlup, 513 U.S. at 324, 115 S.Ct. at 865-66, 130 L.Ed.2d at 834).

¶13   In the present matter, Graham maintains that he is actually

innocent of possessing dangerous drugs because he is innocent of

possessing      two    of    the   four     drugs    listed     in    the    charging

information.      Graham contends that no reasonable juror would have

found him guilty of Count III because the State could not have

proven that he had possessed each of the four drugs beyond a

reasonable doubt.           However, this claim that the State could not

have successfully convicted him is unconvincing.                        It is well

settled that a plea of guilty which is knowing and voluntary

constitutes a waiver of nonjurisdictional defects and defenses.

State v. Spotted Blanket, 1998 MT 59, ¶ 15, 288 Mont. 126, ¶ 15,

955 P.2d 1347, ¶ 15; Stilson v. State (1996), 278 Mont. 20, 22, 924

P.2d 238, 239.        Unless the State is put to the test of presenting

its case at trial, we have no way of knowing what the State’s proof

would be.     When a defendant enters a plea of guilty, he waives his

right to a jury trial and, in doing so, waives the requirement that

the State prove each element of the crime beyond a reasonable

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doubt.     Graham was convicted and sentenced pursuant to his plea,

not upon the presentation of any evidence.                     The allegation that the

State could not have proven each element, chiefly that Graham had

possessed each of the four drugs, is mere speculation.

¶14    Graham has not demonstrated a clear miscarriage of justice.

In    order    to   convince      the    Court     of    his    actual     innocence       of

possessing dangerous drugs, Graham must offer newly discovered

evidence that he is innocent of possessing all four drugs.                          This he

has not done.         His own exculpatory statements do not qualify as

newly discovered evidence and are not sufficient to establish his

actual innocence.          As stated above, a fundamental miscarriage of

justice arises only when a jury could find, in light of new

evidence, that the defendant is actually innocent of the crime.

Graham’s admission of possessing morphine or Demerol, and the

absence of new evidence to the contrary, eliminate that possibility

in this case.

¶15    Neither does Graham’s allegation that he received ineffective counsel qualify as

new evidence that he is actually innocent. As we held in Beach v. Day (1996), 275 Mont.

370, 374, 913 P.2d 622, 624, because all of Graham’s claims regarding ineffective assistance

of counsel are record-based, they do not constitute new evidence and could have been

presented prior to the expiration of the one-year statute of limitations. Accordingly, the

District Court was correct in holding that Graham did not establish actual innocence entitling

him to postconviction relief.




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¶16   Alternatively, Graham alleges that he should be allowed to

withdraw his guilty plea because it was not a           knowing and

voluntary plea.   Section 46-16-105, MCA (1997), provides that “[a]t

any time before or after a judgment, the court may, for good cause

shown, permit the plea of guilty to be withdrawn and a plea of not

guilty substituted.”   This Court has established three factors to

be considered when determining whether “good cause” under      § 46-

16-105, MCA (1997), exists to permit the withdrawal of a guilty

plea:
      a. the adequacy of the district court’s interrogation as
      to the defendant’s understanding of his plea;
      b. the promptness of the motion to withdraw the prior plea;
and
      c. the fact that the defendant’s plea was apparently the
      result of a plea bargain in which the guilty plea was
      given in exchange for dismissal of another charge.

Mallak v. State, 2002 MT 35, ¶ 17, 308 Mont. 314, ¶ 17, 42 P.3d

794, ¶ 17; State v. Knox, 2001 MT 232, ¶ 11, 307 Mont. 1, ¶ 11, 36

P.3d 383, ¶ 11; State v. Bowley (1997), 282 Mont. 298, 304, 938

P.2d 592, 595.

¶17   We apply the three factors in this case to determine whether

good cause exists that would permit Graham to withdraw his guilty

plea.   We first look to the District Court’s interrogation of

Graham at the time of his plea.    At the time of his plea, the Court

directly asked Graham whether or not he knew he had possessed

either Demerol or morphine, both “dangerous” drugs, and Graham

responded in the affirmative.     Unlike the defendant in Mallak (an

Iraqi immigrant with an English vocabulary of a four year-old and

an IQ of 65), Graham has full command of the English language and


                                   8
does not argue that he did not understand the court’s question.            We

find    that   the   District    Court’s    interrogation   of   Graham   was

adequate.

¶18    The second factor we consider is whether the defendant’s

application for withdrawal of his plea occurred within a reasonable

period of time.         While § 46-16-105, MCA (1997), permits the

withdrawal of a guilty plea “any time before or after a judgment,”

we    have   declined   to    adopt   specific   parameters   defining    the

timeliness of a motion to withdraw because each case presents

unique factual circumstances.         State v. Enoch (1994), 269 Mont. 8,

12, 887 P.2d 175, 178.          As a general rule, however, a motion to

withdraw a guilty plea filed over a year after entry of the plea is

untimely.      State v. Osterloth, 2000 MT 129, ¶ 24, 299 Mont. 517, ¶

24, 1 P.3d 946, ¶ 24; State v. Reynolds (1992), 253 Mont. 386, 391,

833 P.2d 153, 156.           This one-year limit is not a hard and fast

rule, but rather a general guideline, and one for which exceptions

will be made in exceptional circumstances.         For example, in Mallak,

the belated consequences of the defendant’s plea (deportation and

possible execution upon his return to Iraq) were not realized until

almost a decade after his plea.            Here, while Graham is only one

year outside of the one-year limit, no exceptional circumstances

exist that warrant the Court’s exception to the rule.               Because

Graham did not file within the year, we find that his application

for withdrawal of his plea did not occur within a reasonable period

of time.




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¶19   The last factor that we consider is whether Graham received a

benefit in exchange for his plea agreement.     Graham was charged

with three counts.    In exchange for pleading to the drug charge,

the State dismissed the burglary and theft charges. Undeniably,

Graham received a considerable benefit in having the two charges

dismissed.   For Graham now to argue that the reduction in charges

cannot be considered a benefit because the State would not have

successfully convicted him is, again, nothing more than speculation

on Graham’s part.
¶20   After considering the three factors, this Court concludes that

Graham’s plea of guilty was knowing and voluntary; therefore,

Graham does not meet the good cause requirement which would allow

him to withdraw his plea.    Therefore,   we hold that the District

Court was correct in denying Graham’s request to withdraw his

guilty plea.

¶21   Accordingly, we affirm the District Court’s ruling to deny

postconviction relief.



                                          /S/ W. WILLIAM LEAPHART

We concur:

/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ JIM REGNIER




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