                                          No. DA 06-0504

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2007 MT 88N


SWAN DELAVERGN SMITH,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Respondent.



APPEAL FROM:         The District Court of the Twentieth Judicial District,
                     In and For the County of Lake, Cause No. DC-03-55,
                     Honorable C. B. McNeil, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Palmer A. Hoovestal, Hoovestal Law Firm, PLLC, Helena, Montana

              For Respondent:

                     Honorable Mike McGrath, Attorney General; Ilka Becker, Assistant
                     Attorney General, Helena, Montana

                     Robert Long, County Attorney; Mitchell A. Young, Deputy County
                     Attorney, Polson, Montana


                                                      Submitted on Briefs: March 14, 2007

                                                                  Decided: April 3, 2007


Filed:


                     __________________________________________
                                       Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

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

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

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and 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     Swan Smith was convicted of deliberate homicide and sentenced to life

imprisonment. We affirmed his conviction on direct appeal. The underlying facts are set

forth in State v. Smith, 2005 MT 325, 329 Mont. 526, 127 P.3d 353, and we will not

repeat them here, except to note that Smith was intoxicated at the time he beat the victim

to death.

¶3     Smith’s current appeal is from the District Court’s denial of his petition for

postconviction relief.     The District Court reasoned that the claim raised in Smith’s

petition is procedurally barred by § 46-21-105(2), MCA, as a claim that could have been

raised on direct appeal.

¶4     In his petition, Smith argued that § 45-2-203, MCA, which prohibits the defense of

intoxication concerning mental state, violates his right to defend guaranteed by Sections

3, 4 and 24 of Article II of the Montana Constitution. During trial and on appeal,

however, Smith contended that the statute violated the federal due process and supremacy

clauses. We affirmed, noting that the United States Supreme Court had already decided

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this issue in Montana v. Egelhoff, 518 U.S. 37, 116 S. Ct. 2013 (1996). Smith, ¶¶ 29-33.

In a concurrence, Justice Nelson, joined by Justice Cotter, stated that: “[a]t such point in

time as there are two other votes to reconsider this issue, I stand ready to overrule

McCaslin and proceed in accordance with our decision in [Egelhoff], but on independent

state grounds.” Smith, ¶ 35.

¶5     In his petition for rehearing, Smith, for the first time, alleged that this Court

overlooked whether § 45-2-203, MCA, violates his right to present a defense under the

Montana Constitution. We denied Smith’s petition, noting that he was seeking relief

under the Montana Constitution for the first time on appeal.

¶6     Smith now argues that he has preserved his Montana Constitution argument for

consideration by way of postconviction proceedings. First, he contends that the broad

statement in his trial brief, that the statute “violates due process because it inhibits Swan

Smith’s right to present a defense,” encompassed both federal and state constitutional

provisions relating to the right to present a defense. Second, he asserts that his current

argument could not have been raised on appeal because it was not preserved below.

Finally, Smith argues that the first time he could have reasonably raised the argument

under the Montana Constitution was after Justice Nelson, in his Smith concurrence,

opened the door by indicating he was willing to reverse McCaslin on independent state

grounds.

¶7     Claims that could have been raised on direct appeal are barred from review under

a petition for postconviction relief. Section 46-21-105(2), MCA. This procedural bar

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also applies to issues that were not properly preserved for appeal at the trial level. State

v. Baker, 272 Mont. 273, 281, 901 P.2d 54, 58 (1995) (citations omitted).

¶8        Smith’s vague general statement made in his trial brief that § 45-2-203, MCA,

“violates due process because it inhibits Swan Smith’s right to present a defense,” failed

to specifically reference Article II, Sections 3 and 4 of the Montana Constitution. The

statement, at best, informed the court that Smith was arguing that the statute violates “due

process.” Additionally, failure to preserve the issue below does not allow Smith to end

run the procedural bar described in § 46-21-105(2), MCA.             As stated above, the

procedural bar applies not only to issues that should have been raised on appeal but also

to issues that were not properly preserved for appeal in the district court. See Baker, 272

Mont. at 281, 901 P.2d at 58. The very fact that Smith failed to raise his Montana

Constitution argument below thus bars the issue from consideration under postconviction

relief.

¶9        Lastly, we conclude that Smith did not have to wait for Justice Nelson’s

concurrence to open the door to Smith’s current argument that § 45-2-203, MCA, violates

his right to defend under the Montana Constitution, because the constitutional provisions

Smith is relying upon were adopted in 1972. We therefore agree with the District Court

that, independently of Justice Nelson’s special concurrence, Smith could have challenged

the statute below because he “either knew or should have known of [the Montana

Constitution] provisions now argued for the first time in postconviction relief.”




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¶10   It is appropriate to decide this case pursuant to our Order of February 11, 2003,

amending Section 1.3 of our 1996 Internal Operating Rules and providing for

memorandum opinions. It is manifest on the face of the briefs and the record before us

that the appeal is procedurally barred pursuant to § 46-21-105(2), MCA.

¶11   We affirm the judgment of the District Court.



                                               /S/ W. WILLIAM LEAPHART



We concur:


/S/ BRIAN MORRIS
/S/ JOHN WARNER
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON




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