                                                                                           December 12 2012
                                           DA 12-0135

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2012 MT 287N




THAYLIN SHAWN PIERCE,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.




APPEAL FROM:          District Court of the Thirteenth Judicial District,
                      In and For the County of Yellowstone, Cause No. DV 11-1377
                      Honorable Gregory R. Todd, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Thaylin Shawn Pierce, self-represented; Billings, Montana

               For Appellee:

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

                      Scott Twito, Yellowstone County Attorney; David Carter, Deputy County
                      Attorney; Billings, Montana



                                                   Submitted on Briefs: October 24, 2012

                                                              Decided: December 12, 2012

Filed:

                      __________________________________________
                                        Clerk
Justice Beth Baker 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     Thaylin Shawn Pierce appeals an order of the Thirteenth Judicial District Court,

Yellowstone County, denying his petition for postconviction relief. Pierce was charged

with Driving a Motor Vehicle Under the Influence of Alcohol or Drugs (DUI). On

April 1, 2010, Pierce pled no contest to the DUI charge. In his petition for postconviction

relief, filed September 23, 2011, Pierce made the following two claims: (1) that he

received ineffective assistance of counsel because his attorney failed to present certified

copies of his Colorado and Wyoming driving records, and (2) that the prosecutor’s failure

to disclose material evidence that Pierce had only two prior DUI convictions in any state,

rather than the thirteen DUIs listed in the presentence investigation report, violated Brady

v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). The District Court denied the petition

on January 9, 2012, on the ground that his allegations could have been raised on direct

appeal and therefore were procedurally barred. Herman v. State, 2006 MT 7, ¶ 55, 330

Mont. 267, 127 P.3d 422 (“In postconviction proceedings, § 46-21-105(2), MCA,



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precludes consideration of a claim that reasonably could have been raised on direct

appeal.”).

¶3     When reviewing an order denying a petition for postconviction relief, we

determine whether the District Court’s factual findings are clearly erroneous and whether

its legal conclusions are correct. Whitlow v. State, 2008 MT 140, ¶ 9, 343 Mont. 90, 183

P.3d 861.

¶4     Pierce’s appellate brief, filed on June 14, 2012, states seven issues that differ from

the two that he presented in the petition for postconviction relief. On appeal, Pierce’s

claims of ineffective assistance of counsel are based on: counsel allowing the court to

coerce him to surrender his Fifth and Fourteenth Amendment rights, counsel’s failure to

request sufficient time for him to decide whether he was under the influence of alcohol

before he made a decision about his plea, and counsel’s failure to request a competency

test or hearing before Pierce signed any documents. He now claims that the State failed

to disclose material evidence regarding the factual basis for the change of plea hearing

and results of the court-ordered portable breath test. We generally do not review issues

raised for the first time on appeal, State v. Longfellow, 2008 MT 343, ¶ 19, 346 Mont.

286, 194 P.3d 694, and will not review the new issues raised in Pierce’s brief.

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

our Internal Operating Rules, which provides for noncitable memorandum opinions.

Pierce failed to offer argument or authority on the issues determined by the District Court



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and may not present new claims on appeal that he did not raise in his petition for

postconviction relief.

¶6     Affirmed.


                                            /S/ BETH BAKER


We concur:


/S/ JIM RICE
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS




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