                                                                                             09/05/2017


                                           DA 16-0750
                                                                                         Case Number: DA 16-0750

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2017 MT 221N



SHAWN KEVIN SMAAGE,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.



APPEAL FROM:           District Court of the First Judicial District,
                       In and For the County of Lewis And Clark, Cause No. CDV-2016-684
                       Honorable Kathy Seeley, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Shawn Kevin Smaage (Self-Represented), Shelby, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant
                       Attorney General, Helena, Montana

                       Leo Gallagher, Lewis and Clark County Attorney, Jeff Sealey, Deputy
                       County Attorney, Helena, Montana



                                                   Submitted on Briefs: July 26, 2017

                                                              Decided: September 5, 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     Shawn Kevin Smaage (Smaage) appeals from the November 30, 2016 order of the

First Judicial District Court, Lewis and Clark County, denying his petition for

post-conviction relief (PCR). On August 21, 2014, Smaage pled guilty to felony driving

under the influence (DUI). Subsequently, on January 22, 2015, Smaage was sentenced as

a persistent felony offender to fifty years in Montana State Prison without eligibility of

parole until he served twenty-five years. On December 3, 2015, Smaage filed a motion to

withdraw his guilty plea.    On January 5, 2016, the District Court denied Smaage’s

motion. Smaage did not appeal the District Court’s denial of his motion to withdraw

guilty plea.

¶3     On August 16, 2016, Smaage filed his PCR petition, raising numerous ineffective

assistance of counsel claims based on the same issues raised in his motion to withdraw

guilty plea. In November 2016, the District Court denied Smaage’s petition as untimely

because it was filed more than one year after his conviction became final. The court also

found that Smaage’s newly discovered evidence claim failed under § 46-21-102(2),

MCA. Smaage now appeals the District Court’s denial of his PCR petition.


                                            2
¶4     We review a district court’s denial of a petition for post-conviction relief to

determine whether the court’s findings of fact are clearly erroneous and whether its

conclusions of law are correct. Wilkes v. State, 2015 MT 243, ¶ 9, 380 Mont. 388, 355

P.3d 755. A district court may dismiss a petition for post-conviction relief as a matter of

law, and we review a court’s conclusions of law for correctness. Herman v. State, 2006

MT 7, ¶ 13, 330 Mont. 267, 127 P.3d 422.

¶5     Section 46-21-102(1), MCA, provides that a PCR petition must be filed within one

year of the date that the conviction becomes final. A conviction becomes final when the

time for appeal to the Montana Supreme Court expires. Section 46-21-102(1)(a), MCA.

Under M. R. App. P. 4(5)(b)(i), an appeal from a judgment must be brought within sixty

days after entry of the judgment. Section 46-21-102(2), MCA, provides an exception to

the one-year time limit of § 46-21-102(1), MCA:

       A claim that alleges the existence of newly discovered evidence that, if
       proved and viewed in light of the evidence as a whole would establish that
       the petitioner did not engage in the criminal conduct for which the
       petitioner was convicted, may be raised in a petition filed within 1 year of
       the date on which the conviction becomes final or the date on which the
       petitioner discovers, or reasonably should have discovered, the existence of
       the evidence, whichever is later.

Section 46-21-102(2), MCA; see Marble v. State, 2015 MT 242, ¶ 36, 380 Mont. 366,

355 P.3d 742; Wilkes v. State, 2015 MT 243, ¶ 15, 380 Mont. 388, 355 P.3d 755.

¶6     In this case, Smaage’s sentence was imposed on January 22, 2015. Smaage had

sixty days from that date to file an appeal to this Court. He did not appeal. His time for

appeal expired in March 2015, and his conviction was then final for purposes of

§ 46-21-102(1), MCA. Therefore, pursuant to the one-year limitation period Smaage had

                                            3
until March 2016 to file his PCR petition. Thus, because Smaage did not file his PCR

petition until August 2016, the petition is time barred under § 46-21-102(1), MCA.

¶7     Smaage asserts that he is entitled to invoke the exception to the one-year time limit

because his guilty plea was induced by misinformation provided to him by his attorney.

Smaage claims he was not aware of this misinformation until he discovered new

evidence. This new evidence was the relevant DUI statute, this Court’s decision in State

v. Chase,1 and that his friend was the one driving the vehicle. Smaage asserts that his

discovery of the relevant DUI statute and our decision in Chase qualifies as “newly

discovered evidence.” Montana Code Annotated defines evidence as “the means of

ascertaining in a judicial proceeding the truth respecting a question of fact, including but

not limited to witness testimony, writings, physical objects or other things presented to

the senses.” Section 26-1-101(2), MCA. The relevant statute and case law do not qualify

as evidence and therefore cannot be considered “newly discovered evidence” for

purposes of § 46-21-102(2), MCA.

¶8     Additionally, Smaage’s “newly discovered evidence” that his friend was driving

the vehicle does not meet the timeliness standard. In his motion to withdraw guilty plea,

Smaage asserted the argument that his friend was the one who drove the vehicle on the

public byways. Smaage cannot now allege that this evidence is new because he had

knowledge of this fact as early as December 2015. Thus, Smaage’s “newly discovered

evidence” fails to meet the exception under § 46-21-102(2), MCA, because Smaage was

clearly aware of this new evidence prior to the one-year limitation period for filing a PCR

       1
           State v. Chase, 2006 MT 13, 331 Mont. 1, 127 P.3d 1038.
                                                4
petition. Further, none of this alleged new evidence, even if proven, would establish that

Smaage did not engage in the criminal conduct for which he pled guilty. As such, we

conclude that the District Court did not err in dismissing Smaage’s PCR petition as

untimely.

¶9     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.

¶10    Affirmed.


                                                /S/ MICHAEL E WHEAT


We Concur:

/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR




                                            5
