                                                                                           February 14 2012


                                          DA 11-0532

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2012 MT 38N



LEWIS PRICE, III,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.


APPEAL FROM:          District Court of the Twenty-Second Judicial District,
                      In and For the County of Carbon, Cause No. DV 11-65
                      Honorable Blair Jones, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Lewis Price, III (self-represented litigant); Deer Lodge, Montana

               For Appellee:

                      Steve Bullock, Montana Attorney General; Sheri K. Sprigg,
                      Assistant Attorney General, Helena, Montana

                      Alex Nixon, Carbon County Attorney, Red Lodge, Montana



                                                   Submitted on Briefs: January 25, 2012

                                                               Decided: February 14, 2012


Filed:

                      __________________________________________
                                        Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(d)(v), 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     Lewis Price, III appeals from the District Court’s “Order Denying Petition for

Postconviction Relief” filed August 19, 2011. We affirm.

¶3     On appeal Price contends that the District Court erred in determining that Price’s

attorney was not ineffective at sentencing for failing to object to admission of letters from

the victim and a witness; in determining that Price’s sentence was not based upon false

information; and in determining that Price’s attorney was not ineffective in withdrawing

Price’s pro se motion to disqualify the District Court judge for cause.

¶4     Price was convicted of assault with a weapon after a bench trial in 2005, and

sentenced to forty years in prison as a persistent felony offender. This Court affirmed

that conviction. State v. Price, 2007 MT 269, 339 Mont. 399, 171 P.3d 293. In 2008

Price filed a petition for postconviction relief, raising claims of ineffective assistance of

counsel. Price and the State stipulated that the District Court should grant the petition

and remand for a new trial. On remand Price and the State entered a plea agreement

under which Price pled guilty to criminal endangerment, and the State agreed to drop the

request for persistent felony offender designation. The District Court held a combined


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hearing to receive the change of plea and to pronounce sentence. After that hearing the

District Court sentenced Price to ten years in prison without the possibility of parole.

¶5     Price appealed, contending that the State breached the plea agreement by offering

the victim and witness statements at hearing. This Court declined Price’s request to

review this issue as plain error and affirmed the sentence. State v. Price, 2010 MT 119N,

357 Mont. 559 (table), 236 P.3d 2 (table). Further, by Order filed May 25, 2011, this

Court denied Price’s motion to disqualify the District Court judge for cause, finding that

Price’s grounds for disqualification were insufficient under § 3-1-805, MCA. Price v.

State, Cause No. PR 06-0120. Price subsequently filed the instant postconviction relief

proceeding.

¶6     Price did not provide a copy of the plea agreement as part of the record on appeal.

The agreement was quoted in part in Price’s 2010 appeal. 2010 MT 119N, ¶ 6. The plea

agreement provided in part that the State would recommend a suspended ten-year

sentence except for time served, and that “the victim of the offense may testify

concerning this recommendation for sentencing, as well as the probation officer.” The

State recommended a sentence in accordance with the plea agreement, and offered

written statements by the victim and by a witness.

¶7     Price contends that this was a violation of the plea agreement, which he construes

to limit the State to offering only live testimony and only from the victim or the probation

officer. The plea agreement does not expressly provide any such restrictions, and hearsay

evidence may be considered at sentencing. State v. Dunkerson, 2003 MT 234, ¶ 26, 317

Mont. 228, 76 P.3d 1085. In addition, even without the language of the plea agreement

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Montana law specifically provides that a court “shall permit the victim to present a

statement” about the crime and her “opinion regarding appropriate sentence.” Section

46-18-115(4)(a), MCA. There was therefore no factual or legal basis for a claim that

Price was afforded ineffective assistance of counsel.

¶8     Price contends that the District Court unfairly based his sentence was upon false

information, referring to him as a violent offender with a violent criminal record. The

record is clear that Price had prior convictions for voluntary manslaughter and felony

intimidation. Therefore, the District Court properly noted these facts in pronouncing

sentence and there is no basis for error.

¶9     It is clear that this Court’s Order of May 25, 2011 disposes of Price’s issue

concerning his attempt to disqualify the District Court judge for cause. As this Court

determined at that time, Price’s affidavit was insufficient as a matter of law to support a

disqualification for cause under § 3-1-805, MCA, and was void as a matter of law.

Therefore, there is no factual basis for an argument that Price’s attorney failed to provide

effective assistance by withdrawing that affidavit.

¶10    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. The

District Court’s findings of fact are supported by substantial evidence and the legal issues

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

¶11    Affirmed.


                                                 /S/ MIKE McGRATH


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We concur:


/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS




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