                                      No. DA 06-0503

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2007 MT 102N


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

THEODORE A. CASIAS,

              Defendant and Appellant.




APPEAL FROM:         The District Court of the Twentieth Judicial District,
                     In and For the County of Lake, Cause No. DC 2003-070,
                     Honorable C.B. McNeil, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Theodore A. Casias (pro se), Shelby, Montana

              For Respondent:

                     Hon. Mike McGrath, Montana Attorney General, Carol E. Schmidt,
                     Assistant Attorney General, Helena, Montana

                     Robert Long, Lake County Attorney, Mitchell Young,
                     Deputy County Attorney, Polson, Montana


                                                          Submitted on Briefs: April 4, 2007

                                                                    Decided: April 25, 2007

Filed:

                     __________________________________________
                                        Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1    Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. Its case title, Supreme Court 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    Theodore A. Casias (Casias), an inmate at the Crossroads Correctional Center in

Shelby, Montana, appeals pro se from the District Court’s May 15, 2006 Order denying

his April 10, 2006 Motion to Withdraw Guilty Plea, and from the court’s June 28, 2006

Order Denying Motion to Reconsider its previous decision.

¶3    We affirm the District Court’s Orders.

¶4    When reviewing a district court’s denial of a motion to withdraw a guilty plea, this

Court reviews the district court’s findings of fact to determine if they are clearly

erroneous and its conclusions of law to determine if they are correct. State v. Leitheiser,

2006 MT 70, ¶ 12, 331 Mont. 464, ¶ 12, 133 P.3d 185, ¶ 12.

¶5    On April 10, 2006, Casias, pro se, moved to withdraw his guilty plea in Cause No.

DC 03-70, Twentieth Judicial District Court, Lake County, Montana. In that cause,

Casias pled guilty to assault with a weapon, a felony, and to partner or family member

assault, a misdemeanor. As part of his plea, Casias entered into an Acknowledgment of

Rights and Plea Agreement on August 14, 2004, which agreement was filed on August

16, 2004. The court’s written Judgment and Commitment was filed on October 27, 2004.




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¶6     On August 14, 2004, at the time Casias pled guilty, § 46-16-105(2), MCA (2003),

provided:

              At any time before judgment or, except when a claim of innocence is
       supported by evidence of a fundamental miscarriage of justice, within 1
       year after judgment becomes final, the court may, for good cause shown,
       permit the plea of guilty or nolo contendere to be withdrawn and a plea of
       not guilty substituted. . . .

¶7     Casias had 60 days in which to appeal his conviction, but did not do so.

Therefore, under this statute, he had until December 26, 2005, in which to file a motion to

withdraw his guilty plea. As noted, Casias did not file his motion until April 10, 2006,

well beyond the time-bar of the statute of limitations prescribed by § 46-16-105(2), MCA

(2003).

¶8     Moreover, while Casias raised in his motion and, now, raises on appeal a number

of constitutionally-based arguments, he fails to demonstrate that he is actually innocent of

the crimes to which he pled guilty and that a fundamental miscarriage of justice would

allow him to move to withdraw his plea notwithstanding that the one-year statute of

limitations prescribed by the § 46-16-105(2), MCA (2003), expired.

¶9     Accordingly, we hold that the District Court properly determined that Casias’

Motion to Withdraw Guilty Plea was procedurally time-barred under § 46-16-105(2),

MCA (2003).

¶10    Having reviewed the record in this matter, we determine to decide this case

pursuant to Section I, Paragraph 3(d) of our 1996 Internal Operating Rules, as amended

in 2003, which provides for memorandum opinions. It is manifest on the face of the

briefs and the record before us that the appeal is without merit because the court’s


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findings of fact are supported by substantial evidence, and because the legal issues are

clearly controlled by settled Montana law which the District Court correctly interpreted.

¶11   Accordingly, we affirm the District Court’s May 15, 2006 Order denying Casias’

Motion to Withdraw Guilty Plea, and the court’s June 28, 2006 Order denying Casias’

Motion to Reconsider.

¶12   Affirmed.

                                                /S/ JAMES C. NELSON


We Concur:

/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ JIM RICE




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