                                                                                              06/06/2017


                                           DA 16-0676
                                                                                         Case Number: DA 16-0676

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2017 MT 137N



MIKE CHILINSKI,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.



APPEAL FROM:           District Court of the Fifth Judicial District,
                       In and For the County of Jefferson, Cause No. DV 2016-24
                       Honorable Loren Tucker, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Mike Chilinski (Self-Represented), Helena, Montana

                For Appellee:

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

                       Steven C. Haddon, Jefferson County Attorney, Boulder, Montana



                                                   Submitted on Briefs: May 10, 2017

                                                              Decided: June 6, 2017


Filed:

                       __________________________________________
                                         Clerk
Justice Michael E Wheat delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(c), 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     Mike Chilinski (Chilinski) appeals from the September 14, 2016 order of the Fifth

Judicial District Court, Jefferson County, denying his petition for postconviction relief

(PCR). In October 2012, a jury convicted Chilinski of 91 counts of animal cruelty and the

District Court sentenced him to the Department of Corrections for 30 years with 25 years

suspended. Chilinski filed an appeal with the Montana Supreme Court and, on August 5,

2014, this Court affirmed his conviction in State v. Chilinski, 2014 MT 206, 376 Mont.

122, 330 P.3d 1169.1

¶3     On March 8, 2016, Chilinski filed a PCR petition with the District Court, alleging

errors including ineffective assistance of counsel (IAC) and error in the prosecution’s

failure to disclose material evidence. On September 14, 2016, the court dismissed the

petition, finding that his claim was barred under § 46-21-105(2), MCA, and further

concluding that his IAC claim substantively failed under the two-part test set forth in



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         In that appeal, Chilinski raised three issues: 1) whether the District Court erred in denying
Chilinski’s motion to suppress; 2) whether the District Court abused its discretion in limiting
evidence to the time period of the charged offenses; and 3) whether the District Court abused its
discretion in ordering the forfeiture of all of Chilinski’s dogs. Chilinski, ¶¶ 3-5.
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Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Chilinski now appeals

the District Court’s denial of his PCR petition.

¶4     We review a district court’s denial of a PCR petition to determine if the court’s

findings of fact are clearly erroneous and if its conclusions of law are correct. McGarvey

v. State, 2014 MT 189, ¶ 14, 375 Mont. 495, 329 P.3d 576. We review de novo a district

court’s interpretation and application of a statute. Dick Irvin, Inc. v. State, 2013 MT 272,

¶ 18, 372 Mont. 58, 310 P.3d 524.

¶5     Section 46-21-105(2)-(3), MCA, provides, in relevant part:

              (2) When a petitioner has been afforded the opportunity for a direct
       appeal of the petitioner’s conviction, grounds for relief that were or could
       reasonably have been raised on direct appeal may not be raised, considered,
       or decided in a proceeding brought under this chapter. Ineffectiveness or
       incompetence of counsel in proceedings on an original or an amended
       original petition under this part may not be raised in a second or subsequent
       petition under this part.

              (3) For purposes of this section, “grounds for relief” includes all legal
       and factual issues that were or could have been raised in support of the
       petitioner's claim for relief.

¶6     In this case, Chilinski was afforded the opportunity for a direct appeal and

previously raised three alleged errors in this Court, based on the same trial record he relies

upon here. The trial record does not provide any new legal or factual issues that could not

have been reasonably discovered and raised in the petitioner’s direct appeal. As such, we

conclude that the District Court did not err in finding that Chilinski’s claims for relief are

based on asserted error that was evident on the trial record and thus could and should have

been raised on direct appeal. Furthermore, while Chilinski asks us in his reply brief to



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exercise plain error review in this case, he does not allege any newly discovered,

exculpatory evidence to warrant such review.

¶7     As for Chilinski’s IAC claims, it is apparent from the District Court’s order that the

court carefully reviewed and analyzed his claims under the relevant law, and reached

legally supported conclusions. Consequently, the court did not err in denying Chilinski’s

PCR petition on IAC grounds. Having reviewed the issues, the District Court’s order, and

Chilinski’s arguments on appeal, we affirm the District Court’s denial of his petition.

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

Internal Operating Rules, which provides for memorandum opinions. In the opinion of the

Court, the case presents a question controlled by settled law or by the clear application of

applicable standards of review. The District Court’s interpretation and application of the

law was correct.

¶9     Affirmed.

                                                 /S/ MICHAEL E WHEAT

We Concur:


/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR




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