                                                                                             07/05/2017


                                           DA 15-0773
                                                                                         Case Number: DA 15-0773


              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                           2017 MT 165



BRYCE EVERETT PETERSON,

               Petitioner and Appellant,

         v.

STATE OF MONTANA,

               Respondent and Appellee.



APPEAL FROM:            District Court of the Twenty-First Judicial District,
                        In and For the County of Ravalli, Cause No. DV 14-567
                        Honorable Jeffrey H. Langton, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Bryce Everett Peterson, self-represented, Deer Lodge, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein,
                        Assistant Attorney General, Helena, Montana

                        William E. Fulbright, Ravalli County Attorney, Hamilton, Montana



                                                   Submitted on Briefs: March 22, 2017

                                                              Decided: July 5, 2017


Filed:

                        __________________________________________
                                         Clerk
Justice Dirk M. Sandefur delivered the Opinion of the Court.

¶1     Bryce Everett Peterson appeals the denial of his petition for postconviction relief.

The Montana Twenty-First Judicial District Court determined the petition was timely but

denied it on the merits. We address two issues on appeal:

       1. Was Peterson’s petition for postconviction relief timely?

       2. Did Peterson’s showing of newly discovered evidence satisfy § 46-21-102(2),
          MCA?

¶2     We conclude Peterson’s petition was not timely and agree with the District Court’s

determination that Peterson’s claims of newly discovered evidence were unsubstantiated.

We therefore affirm the denial of Peterson’s petition.

                                    BACKGROUND

¶3     The State charged Peterson with five felonies and a misdemeanor for his violent

assault and kidnapping of H.P., a woman with whom Peterson had an on-and-off romantic

relationship. On the eve of his trial, without any admission of fact constituting guilt,

Peterson entered Alford guilty pleas pursuant to North Carolina v. Alford, 400 U.S. 25, 91

S. Ct. 160 (1970). By written judgment filed November 23, 2009, the District Court

sentenced Peterson to serve 70 years in the Montana State Prison with 20 suspended.

¶4     Peterson filed a notice of appeal on January 22, 2010. Before filing his opening

brief, Peterson moved for a stay of the appeal and for remand to allow him to file a motion

to withdraw his pleas in the District Court. This Court denied the stay, noting that the

timeline for Peterson to move to withdraw his pleas was tolled during the pendency of the

appeal. See § 46-16-105(2), MCA (deadline for motion to withdraw plea is one year after

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appellate process has expired). Nevertheless, Peterson filed a motion to dismiss his appeal,

which we granted on November 5, 2010. With the assistance of new counsel, Peterson

filed a motion in the District Court to withdraw his Alford pleas on November 22, 2010.

More than a year later, the District Court denied Peterson’s motion. We affirmed the denial

on November 5, 2013. State v. Peterson, 2013 MT 329, 372 Mont. 382, 314 P.3d 227.

Peterson then petitioned for rehearing, which we denied on December 18, 2013.

¶5     Peterson filed the present petition for postconviction relief on December 17, 2014,

asserting that the District Court’s pre-trial evidentiary orders and the State’s misconduct in

discovery and evidentiary hearings deprived him of the opportunity to defend himself with

evidence of his victim’s mental health history. As a result, Peterson asserted that he was

effectively coerced into making his Alford pleas. Peterson also raised claims of ineffective

assistance of counsel both in making his pleas and filing his post-sentence motion to

withdraw his pleas. In addition to its arguments on the merits of Peterson’s claims, the

State asserted that the petition was untimely. The District Court rejected the State’s

timeliness argument, but nonetheless denied the petition on the merits. Peterson appealed.

In addition to opposing Peterson’s assertions of error, the State asserts on appeal that the

District Court erred in determining the petition was timely.

                               STANDARDS OF REVIEW

¶6     The standard of review of a district court’s denial of a petition for postconviction

relief is whether the court’s findings of fact are clearly erroneous and whether its

conclusions of law are correct. Sartain v. State, 2012 MT 164, ¶ 9, 365 Mont. 483, 285

P.3d 407.
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                                       DISCUSSION

¶7      1. Was Peterson’s petition for postconviction relief timely?

¶8      Petitions for postconviction relief generally must be filed “within 1 year of the date

that the conviction becomes final.” Section 46-21-102(1), MCA. Although a defendant

making an Alford plea may refuse to admit to any element of an offense or acknowledge

guilt, an Alford plea is still a plea of guilty. See § 46-12-212(2), MCA; Peterson, ¶ 8. A

judgment or sentence entered upon an Alford plea is thus a “conviction,” as defined by

§ 46-1-202(7), MCA. For purposes of postconviction relief, a conviction “becomes final”

when:

        [1]    the time for appeal to the Montana supreme court expires;

        [2]    if an appeal is taken to the Montana supreme court, . . . the time for
               petitioning the United States supreme court for review expires; or

        [3]    if review is sought in the United States supreme court, on the date
               that that court issues its final order in the case.

Section 46-21-102(1), MCA. In short, a conviction becomes final when a defendant’s

appellate remedies expire or are exhausted.

¶9      Upon a showing of good cause, a court may allow withdrawal of a guilty plea at any

time before “judgment” or within one year after a “judgment” becomes final. Section

46-16-105(2), MCA. Except for reference to the term “judgment” rather than “conviction,”

a judgment becomes final under § 46-16-105(2), MCA, under the same circumstances that

a conviction becomes final under § 46-21-102(1), MCA. Because a “conviction” is a

judgment or sentence entered upon a guilty plea, a no contest plea, or a guilty verdict, see

§ 46-1-202(7), MCA, no meaningful distinction exists between the terms “judgment” and
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“conviction” as used in §§ 46-16-105(2) and 46-21-102(1), MCA. Thus, the deadlines for

moving to withdraw a guilty plea and petitioning for postconviction relief run concurrently

from the exhaustion or expiration of a defendant’s right to direct appeal from the

conviction.   To allow a defendant to extend the postconviction petition deadline by

first filing a motion to withdraw a guilty plea would contravene the plain language of §§ 46-

16-105(2) and 46-21-102(1), MCA.

¶10    “A guilty plea must be a voluntary, knowing, and intelligent choice due to a

defendant’s waiver of numerous constitutional rights and protections when he makes such

a plea.” State v. Burns, 2012 MT 97, ¶ 15, 365 Mont. 27, 278 P.3d 452. A defendant

challenging the validity of a guilty plea as involuntary, unknowing, or unintelligent has

essentially three options: a direct appeal from the conviction, a motion to withdraw the

plea, and a petition for postconviction relief. These options are not mutually exclusive; the

defendant is free to pursue any or all of these options, with the caveat that record-based

challenges may not be raised in a petition for postconviction relief and non-record based

challenges may not be raised on direct appeal. See § 46-21-101(1), MCA; State v. Herman,

2008 MT 187, ¶ 15, 343 Mont. 494, 188 P.3d 978 (explaining distinction between

record-based and non-record-based claims).

¶11    By operation of §§ 46-16-105(2) and 46-21-102(1), MCA, filing a direct appeal

from the conviction delays the deadline for filing a plea withdrawal motion and a petition

for postconviction relief. Conversely, filing a motion to withdraw a plea or a petition for

postconviction review does not toll the deadlines for any of the other options. If a

defendant files only a motion to withdraw a plea, without pursuing direct appellate review
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or a concurrent petition for postconviction relief, she risks the expiration and waiver of her

rights to direct appeal and postconviction relief. This is precisely what happened here.

¶12    The District Court entered its written judgment on Peterson’s pleas on

November 23, 2009, thereby starting the clock on his right of direct appeal to this Court.

He had 60 days from the entry of the District Court’s written judgment to file a notice of

appeal. M. R. App. P. 4(5)(b)(i). Peterson timely filed his notice of appeal on the 60th day,

January 22, 2010. Because he filed his appeal on the last possible day, no time was left to

refile his appeal after he requested and obtained dismissal of his appeal on November 5,

2010. Although we did not dismiss his appeal with prejudice, his right to appeal expired

that day by operation of the 60-day deadline of M. R. App. P. 4(5)(b)(i) and his voluntary

withdrawal of his timely filed appeal.       Peterson’s conviction thus became final on

November 5, 2010, under § 46-21-102(1)(a), MCA. Pursuant to § 46-21-102(1), MCA,

Peterson’s deadline to file a postconviction petition was November 5, 2011.

¶13    Peterson could have timely sought non-record-based relief challenging the validity

of his Alford pleas by filing a postconviction petition before November 5, 2011. Instead,

he elected to file only a post-sentence motion to withdraw his pleas and thereby risked

waiver of his right to seek postconviction relief in the event that the motion to withdraw

was unsuccessful and the ruling came after November 5, 2011. In fact, the District Court

issued its ruling on December 14, 2011.            Consequently, Peterson’s petition for

postconviction relief, filed December 17, 2014, was time-barred pursuant to

§ 46-21-102(1), MCA.


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¶14    In determining that Peterson’s petition was timely, the District Court observed that

U.S. Supreme Court rules allow 90 days to petition for review of this Court’s decisions.

See Rule 13, Rules of the Supreme Court of the United States. Because Peterson filed his

petition within 1 year and 90 days of our Peterson decision, the District Court concluded

the petition was timely. However, our Peterson decision concerned a direct appeal from

the denial of his motion to withdraw his Alford pleas, not a direct appeal from his

conviction. Peterson, ¶ 1. His right to a direct appeal from his conviction had long-since

expired, and his conviction was therefore final.1 By measuring Peterson’s postconviction

petition deadline from the date of our Peterson decision, as opposed to the date his

conviction became final, the District Court erroneously extended his one-year deadline for

filing a postconviction petition in contravention of § 46-21-102(1), MCA.

¶15    Several of the claims in Peterson’s postconviction petition are related to the alleged

ineffective assistance of his counsel in handling the motion to withdraw his pleas. We

addressed many of these claims in Peterson, ¶¶ 30-39, and the claims are now barred by

res judicata. See Smith v. State, 2000 MT 327, ¶ 27, 303 Mont. 47, 15 P.3d 395. To the

extent Peterson’s claims are new, the conduct at issue in these claims necessarily occurred

after Peterson’s conviction had become final under § 46-21-102(1)(a), MCA.

Nevertheless, the deadline for postconviction relief attaches to the date the conviction




1
  Because the State acknowledged that the restitution portion of Peterson’s sentence was legally
inadequate, we remanded “for the sole purpose of” correcting the restitution order. Peterson,
¶¶ 41-42. We did not grant Peterson an out-of-time, direct appeal of his conviction. The correction
of the restitution order therefore did not extend his deadline to file a petition for postconviction
relief.
                                                 7
became final, not the date the grounds for relief arose. Section 46-21-102(1), MCA.

Furthermore, evidence of his counsel’s ineffectiveness during these proceedings does not

fall within the exception for newly discovered evidence, § 46-21-102(2), MCA, because it

has no bearing on whether Peterson engaged in the criminal conduct for which he was

convicted. Like the rest of his petition, Peterson’s claims of ineffective assistance of

counsel with regard to his motion to withdraw his pleas are time-barred by § 46-21-102(1),

MCA.

¶16    2. Did Peterson’s showing of newly discovered evidence satisfy § 46-21-102(2),
       MCA?

¶17    Having determined that Peterson’s petition for postconviction relief was more than

three years late, we must next determine whether his claims of newly discovered evidence

bring his petition within the exception of § 46-21-102(2), MCA, which provides:

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

Section 46-21-102(2), MCA.

¶18    To support his claim of newly discovered evidence, Peterson provided the District

Court with a single email from a private investigator hired for his defense. That email

shared a link to “all of the documents” concerning Peterson’s case that the investigator had

in his possession. As the District Court observed, the email did not explain what those




                                             8
documents were, “when and how they were acquired, . . . [or] when Peterson knew or

should have known of their existence.”

¶19    In his briefing on appeal, Peterson explains that the documents were “undisclosed”

police reports, which he attached as exhibits to his petition. The District Court noted that

two of the reports were in fact disclosed by the State in discovery and introduced by the

defendant at his sentencing hearing. The remaining reports concern past interactions

between law enforcement and Peterson’s victim. Despite Peterson’s claims, the State had

no duty to investigate his victim, nor did it have an obligation to procure evidence on his

behalf. Taylor v. State, 2014 MT 142, ¶ 15, 375 Mont. 234, 335 P.3d 1218. Even if Peterson

had provided a reasonable basis for not discovering these documents earlier, it is unclear

how the victim’s past, unrelated interactions with law enforcement would show he did not

engage in the violent felonies for which he was convicted.

¶20    The District Court ultimately determined that Peterson’s assertion of newly

discovered evidence was unsupported by the facts. We agree. Because Peterson failed to

provide factual support for his claim of newly discovered evidence, we conclude that the

exception of § 46-21-102(2), MCA, does not excuse Peterson’s failure to timely file his

petition for postconviction relief.

                                      CONCLUSION

¶21    The District Court erred in measuring the deadline for Peterson’s petition for

postconviction relief, but nevertheless ultimately reached the right result in denying the

petition. We will affirm a district court decision that reaches the right result even if for the

wrong reason. Keuffer v. O.F. Mossberg & Sons, Inc., 2016 MT 127, ¶ 22, 383 Mont. 439,
                                               9
373 P.3d 14. We therefore affirm the District Court’s denial of Peterson’s petition for

postconviction relief.


                                               /S/ DIRK M. SANDEFUR


We concur:


/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA




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