                                                                                         May 28 2013


                                           DA 12-0392

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2013 MT 142N



ALAN F. COMBS,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.



APPEAL FROM:           District Court of the Eleventh Judicial District,
                       In and For the County of Flathead, Cause No. DV 12-502C
                       Honorable Stewart E. Stadler, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Alan F. Combs (self-represented), Deer Lodge, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General; Katie F. Schultz, Assistant
                       Attorney General, Helena, Montana

                       Ed Corrigan, Flathead County Attorney, Kalispell, Montana


                                                   Submitted on Briefs: May 8, 2013
                                                              Decided: May 28, 2013




Filed:

                       __________________________________________
                                         Clerk
Chief Justice Mike McGrath 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 Montana Reports.

¶2     Alan Combs appeals from the District Court’s Order of May 21, 2012, denying his

March 29, 2012, petition for postconviction relief. We affirm.

¶3     In 2005 Combs entered a no contest plea to charges of aggravated burglary and felony

assault with a weapon.      The District Court convicted Combs and sentenced him to

consecutive terms of 30 and 20 years. Combs appealed and this Court affirmed. State v.

Combs, 2007 MT 6N. In 2007 Combs moved to withdraw his plea; the District Court denied

the motion; and Combs appealed. On appeal, this Court classified the proceeding as a

petition for postconviction relief and affirmed the District Court. State v. Combs, 2008 MT

163N. In April 2009, Combs petitioned this Court for a writ of habeas corpus. This Court

denied relief in an order of June 23, 2009.

¶4     The present petition for postconviction relief alleges that the prosecution failed to

disclose fingerprint evidence to Combs, and that he became aware of this evidence in 2008.

The District Court dismissed the petition as untimely under § 46-21-102, MCA. Subsection

(1) of that section requires petitions for postconviction relief to be filed within one year of

the date the conviction becomes final. Combs was convicted in 2007. Subsection (2) of that

section allows consideration of a petition for postconviction relief based upon newly

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discovered evidence, if it is filed within one year of the date the defendant discovers the

existence of the evidence. Combs states that he knew about the subject fingerprint evidence

in 2008. Under the facts, Combs’ petition was barred by subsections (1) and (2) of § 46-21-

102, MCA.

¶5     Therefore, we conclude that the District Court properly applied § 46-21-102, MCA,

and dismissed the petition.

¶6     We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our

Internal Operating Rules, which provides for memorandum opinions. The issues in this case

are legal and are controlled by settled Montana law, which the District Court correctly

applied.

¶7     Affirmed.

                                                 /S/ MIKE McGRATH


We concur:

/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ BRIAN MORRIS




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