                                                                                             August 31 2010


                                 DA 09-0568, DA 09-0574

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        2010 MT 193



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

MATTHEW LYNN MONTGOMERY,

              Defendant and Appellant.


APPEAL FROM:          District Court of the Twenty-First Judicial District,
                      In and For the County of Ravalli, Cause No. DC 06-83
                      Honorable James A. Haynes, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Joslyn Hunt, Chief Appellate Defender; Jennifer A. Hurley, Assistant
                      Appellate Defender; Helena, Montana

               For Appellee:

                      Steve Bullock, Montana Attorney General; Mardell Ployhar, Assistant
                      Attorney General; Helena, Montana

                      George H. Corn, Ravalli County Attorney; T. Geoffrey Mahar, Deputy
                      County Attorney; Hamilton, Montana



                                                   Submitted on Briefs: July 21, 2010

                                                              Decided: August 31, 2010


Filed:

                      __________________________________________
                                        Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1    Matthew Lynn Montgomery appeals from the order entered by the Twenty-First

Judicial District Court, Ravalli County, denying his motions to withdraw his no contest

and guilty pleas. We affirm.

¶2     Did the District Court err by denying Montgomery’s motions to withdraw his
pleas?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3    In June 2003, Montgomery was charged with incest, sexual intercourse without

consent, and theft for his actions related to his adult half sister. Pursuant to a plea

agreement, Montgomery agreed to enter a no contest plea to the incest charge in

exchange for dismissal of the charges of sexual intercourse without consent and theft. At

the change of plea hearing, the District Court advised Montgomery of the amended

charges, possible penalties and rights he was waiving, explained that the court was not

bound by the agreement, and received Montgomery’s assurances that he had no

“reservations” about his plea and no one had forced him to enter it. The State recited the

evidence it would present should the matter proceed to trial, whereupon Montgomery

stated his belief that the State could prove its case beyond a reasonable doubt, and the

court accepted his plea. On February 17, 2004, the District Court sentenced Montgomery

to a twenty-year suspended sentence, requiring him to serve one year in the Ravalli

County Detention Center and imposing other conditions, including obeying all laws.

¶4    In May 2006, Montgomery was charged with committing sex-related crimes upon

four children, including three counts of sexual assault, three counts of sexual abuse of a
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child, and one count of tampering with physical evidence. Pursuant to a plea agreement,

Montgomery pled guilty to two counts of sexual assault in exchange for dismissal of the

remaining charges and the State’s Notice of Persistent Felony Offender. At the change of

plea hearing, the District Court advised Montgomery of the rights he was waiving and

ensured he was not entering his pleas under duress. The State recited the facts it would

establish at trial, and Montgomery and his attorney agreed with the State’s recitation of

the facts.   The District Court accepted Montgomery’s guilty pleas and his related

admission to violating the terms of his twenty-year suspended sentence for the incest he

had committed in 2003. On January 12, 2007, the District Court sentenced Montgomery

to twenty years, with ten years suspended, for each count of sexual assault.         The

sentences for both sexual assault counts were to run consecutively. The District Court

revoked Montgomery’s suspended sentence and ordered that Montgomery be committed

to the Montana State Prison for twenty years, with ten years suspended, to run

consecutively to the sexual assault sentences.

¶5     On October 7, 2008, Montgomery filed a self-represented motion to withdraw his

pleas entered in 2003 and 2006, which the State opposed. The District Court appointed

counsel for Montgomery and conducted a hearing. The District Court denied the motion,

and Montgomery appeals.




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                               STANDARD OF REVIEW

¶6     We review a district court’s denial of a motion to withdraw a plea de novo. State

v. Brinson, 2009 MT 200, ¶ 3, 351 Mont. 136, 210 P.3d 164; State v. McFarlane, 2008

MT 18, ¶ 8, 341 Mont. 166, 176 P.3d 1057.

                                      DISCUSSION

¶7     Did the District Court err by denying Montgomery’s motions to withdraw his
pleas?

¶8     Montgomery argues that the District Court’s plea colloquy was inadequate, he was

induced to plead by threats, and he was insufficiently advised about the consequences of

his pleas, rendering them involuntary. The State counters that Montgomery’s motion to

withdraw his pleas was time barred because it was filed more than one year after his

convictions became final. Montgomery responds that the State waived the time-bar

defense, but, alternatively, if the State preserved the issue, he satisfied the exception to

the time bar by raising a “claim of innocence supported by evidence of a fundamental

miscarriage of justice.”

¶9     In response to Montgomery’s self-represented motion to withdraw his pleas, the

State filed an opposing pleading, citing to § 46-16-105(2), MCA, and stating, “[T]he

State moves this Court to summarily dismiss the motion in each case because

Montgomery’s request is time-barred.” The State’s supporting memorandum argued as

follows:

       Under § 46-16-105(2), [MCA], Montgomery had one year from the day his
       time for appeal expired to withdraw his guilty pleas. In [the 2003 incest
       plea], Montgomery’s time for appeal expired April 19, 2004. Accordingly,
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       Montgomery had until April 19, 2005[,] to withdraw his guilty plea.
       Likewise, in [the 2006 sexual assault pleas], Montgomery’s time for appeal
       expired March 26, 2007.

       Under the statute, Montgomery therefore had until March 26, 2008[,] to
       withdraw his second guilty plea. Montgomery’s motion to withdraw his
       guilty pleas was filed on October 7, 2008, more than 3 years after the time
       limit ran for [the 2003 incest plea] and 6 months after the time limit for [the
       2006 sexual assault pleas].

       The child victims in this case are growing up. They should not be haunted
       by the prospect of Montgomery now desiring to withdraw his plea[,]
       thereby causing the victims to face trial testimony anxiety once again.
       Here, the time-bar consideration for plea withdrawal serves a legitimate
       purpose.

After Montgomery was appointed counsel, he filed new motions to withdraw his pleas.

The State filed another response to the new motions, stating it “continues to rely on the

statutory time-barred argument” and incorporating by reference the time-bar arguments it

had made within its original memorandum, cited above. During the April 10, 2009

hearing, the District Court stated to Montgomery’s attorney that “the [S]tate raises an

issue over this one-year time period that could be some sort of time bar . . . . So I assume

at some point you’ll address that in your briefing . . . because the [S]tate has raised that as

a potential bar.” In its order, the District Court acknowledged that “Montgomery’s

motions to withdraw the pleas he entered to the 2003 Crimes and the 2006 Crimes are

well beyond the one-year time bar contained in § 46-16-105(2), MCA,” but also

addressed the merits of Montgomery’s motion, concluding that his pleas were voluntarily

entered.




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¶10    Despite this record, Montgomery argues the State waived the issue because it

argued to the District Court that § 46-16-105(2), MCA, “requires that all motions to

withdraw guilty pleas contain a claim of innocence supported by evidence of a

fundamental miscarriage of justice and be filed within one year,” whereas its argument

on appeal is that the statute “provides a one-year statute of limitations except in claim of

innocence cases.” (Emphasis in original.) Montgomery claims the State is offering “an

entirely different theory” on appeal, which should not be considered.

¶11    “The general rule is that issues not raised before the trial court and new legal

theories are not considered by this Court on appeal because it is unfair to fault the trial

court on an issue it was never given an opportunity to consider.” State v. Courville, 2002

MT 330, ¶ 5, 313 Mont. 218, 61 P.3d 749; see also State v. Adgerson, 2003 MT 284,

¶ 12, 318 Mont. 22, 78 P.3d 850; In re Estate of Kindsfather, 2005 MT 51, ¶ 34, 326

Mont. 192, 108 P.3d 487; Emmerson v. Walker, 2010 MT 167, ¶ 27, 357 Mont. 166, ___

P.3d ___; State v. Johnston, 2008 MT 318, ¶¶ 16-21, 346 Mont. 93, 193 P.3d 925,

overruled on other grounds by State v. Maynard, 2010 MT 115, ¶¶ 21, 28, 356 Mont.

333, 233 P.3d 331. To preserve an issue, a party must set forth more than “general

assertions.” Courville, ¶ 5; Emmerson, ¶ 27.

¶12    However, we have permitted parties to bolster their preserved issues with

additional legal authority or to make further arguments within the scope of the legal

theory articulated to the trial court. See e.g. Becker v. Rosebud Operating Servs., 2008

MT 285, ¶ 18, 345 Mont. 368, 191 P.3d 435 (“While some specific arguments Becker

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offers on appeal were not offered in the District Court, we cannot conclude that Becker’s

overall theory or claim has significantly changed.”); Whitehorn v. Whitehorn Farms, Inc.,

2008 MT 361, ¶ 23, 346 Mont. 394, 195 P.3d 836 (“[W]e conclude that Brian’s appellate

argument, while clearly a change in emphasis, is not an entirely new theory, and that

excluding consideration of his arguments would be an unduly harsh application of the

rule.”); Sleath v. West Mont Home Health Servs., 2000 MT 381, ¶ 35, 304 Mont. 1, 16

P.3d 1042; State v. Morrison, 2008 MT 16, ¶¶ 10-12, 341 Mont. 147, 176 P.3d 1027;

Thomas v. N.W. Natl. Ins. Co., 1998 MT 343, ¶ 22, 292 Mont. 357, 973 P.2d 804.

¶13    Here, the State expressly raised the statutory time bar in the trial court. The

District Court was given the opportunity to rule on the issue, urged Montgomery to

address the issue in briefing, and, arguably, held that Montgomery’s claims were time

barred in addition to denying Montgomery’s motion on the merits (“Montgomery’s

motions to withdraw the pleas he entered to the 2003 Crimes and the 2006 Crimes are

well beyond the one-year time bar contained in § 46-16-105(2), MCA.”). Thus, the

fundamental unfairness the rule seeks to prevent is not present here. As in Becker and

Whitehorn, we conclude that rejecting consideration of the State’s arguments on the time-

bar issue would be an “unduly harsh application” of the waiver rule. Whitehorn, ¶ 23; see

also Becker, ¶ 18. As the time bar is a threshold issue, we turn to its application.

¶14    In 2003, the Legislature amended § 46-16-105(2), MCA, to state, in pertinent part:

       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
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         not guilty substituted. A judgment becomes final for purposes of this
         subsection (2):

         (a) when the time for appeal to the Montana supreme court expires;

         (b) if an appeal is taken to the Montana supreme court, when the time for
         petitioning the United States supreme court for review expires; or

         (c) if review is sought in the United States supreme court, on the date that
         that court issues its final order in the case.

(Emphasis added.)1 The amendment became effective July 1, 2003, and applied to all

offenders who pled guilty on or after that date. Laws of Montana, 2003, ch. 346, §§ 2-3,

at 1158. The parties agree that the amendment applies to Montgomery’s pleas and that

his request to withdraw them was not filed within one year after the judgments became

final.

¶15      However, Montgomery argues that his withdrawal request falls within the

exception to the one-year period as a “claim of innocence . . . supported by evidence of a

fundamental miscarriage of justice.” Section 46-16-105(2), MCA. Montgomery argues

he adduced evidence of his innocence, while the State argues that he failed to carry that

burden. Both parties note that this Court has not previously addressed this statutory

provision and the meaning of the exception to the time bar. To assist in doing so, we turn

to the provision’s legislative history, including the amendments made during the bill’s

consideration. See Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory

Construction vol. 2A, § 48:18 (7th ed., West 2007) (“One of the most readily available

1
 The Legislature also amended § 46-16-105, MCA, in 2005, but those amendments have no
bearing on the issues here. See Laws of Montana, 2005, ch. 222, § 3, at 715.

                                          8
extrinsic aids to the interpretation of statutes is the action of the legislature on

amendments which are proposed to be made during the course of consideration in the

legislature.”).

¶16    Representative John Parker introduced HB 171 in the 2003 Legislature on behalf

of the Montana Department of Justice to impose a one-year limitation period for plea

withdrawals. Mont. H. Jud. Comm., Hearing on HB 171, 58th Leg., Reg. Sess. 9

(Jan. 20, 2003). While testifying, Parker described a case wherein the State charged a

defendant with failing to register as a sex offender. The defendant had opposed the

charge by attempting to withdraw his guilty plea to the underlying sex crime he had

entered years before, which necessitated the registration. Parker explained that “[t]he

essence of this bill is to try to provide some sense of finality in a criminal case” and

would “enact a one-year statute of limitations for withdrawal of guilty plea after the time

of which a conviction becomes final.” Mont. H. Jud. Comm., Hearing on HB 171, 58th

Leg., Reg. Sess. 9 (Jan. 20, 2003). John Connor, representing the Department of Justice,

testified about the one-year statute of limitation applicable in the post-conviction context

and asked for application of the same statute of limitation to requests for plea

withdrawals. Mont. Sen. Jud. Comm., Hearing on HB 171, 58th Leg., Reg. Sess. 13-14

(Mar. 7, 2003); Mont. H. Jud. Comm., Hearing on HB 171, 58th Leg., Reg. Sess. 9 (Jan.

20, 2003).

¶17    Regarding the exception to the one-year limitation period, Connor cited to this

Court’s post-conviction relief decision in State v. Redcrow, 1999 MT 95, 294 Mont. 252,

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980 P.2d 622, and testified that a claim of “actual innocence supported by a fundamental

miscarriage of justice” is not subject to the one-year statute of limitation. Mont. H. Jud.

Comm., Hearing on HB 171, 58th Leg., Reg. Sess. 9 (Jan. 20, 2003). Connor explained

that this exception within existing law would also apply to the one-year limitation period

proposed by HB 171. Mont. H. Jud. Comm., Hearing on HB 171, 58th Leg., Reg. Sess. 9

(Jan. 20, 2003). However, Representative Mark Noennig, troubled that no language

referencing the exception existed within the proposed bill, offered an amendment to

explicitly include it. Mont. H. Jud. Comm., Executive Action on HB 171, 58th Leg., Reg.

Sess. 9-10 (Jan. 21, 2003).      In offering his amendment, Representative Noennig

explained that to receive the benefit of the “actual innocence” exception to the time bar,

the defendant must make a showing “supported by evidence” and that this burden would

be “a pretty steep hurdle.” Mont. H. Jud. Comm., Executive Action on HB 171, 58th

Leg., Reg. Sess. 9-10 (Jan. 21, 2003). The House Committee on Judiciary then adopted

the amendment, which both the House and the Senate ultimately approved. Mont. H.

Jud. Comm., Executive Action on HB 171, 58th Leg., Reg. Sess. 9 (Jan. 21, 2003); H.

Second Reading HB 171, 58th Leg., Reg. Sess. 1-2 (Jan. 25, 2003); Laws of Montana,

2003, ch. 346, § 1, at 1157.

¶18    Here, Montgomery has fallen far short of carrying his burden to demonstrate a

claim of innocence supported by evidence of a fundamental miscarriage of justice. He

cites to a one-line, self-serving, unresponsive comment within his hearing testimony

asserting “I’m innocent of these charges,” but offered nothing to deflect the evidence

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provided by multiple victims, described by his original trial counsel as “very, very

compelling,” the corroborative DNA evidence about which his trial counsel testified, or

to demonstrate that any of the pleas he entered to multiple charges over multiple years are

conceivably suspect.    He has set forth vague and conclusory statements, which are

insufficient to meet the “steep hurdle” contemplated by the Legislature.

¶19    We conclude that Montgomery did not satisfy the exception to the one-year time

bar. Thus, we affirm the District Court’s denial of his motion for withdrawal of his pleas.


                                                 /S/ JIM RICE


We concur:


/S/ MIKE McGRATH
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
/S/ JAMES C. NELSON




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