                                                                                            05/23/2017


                                           DA 16-0470
                                                                                        Case Number: DA 16-0470

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2017 MT 120N



ALLEN J. POTTER,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.



APPEAL FROM:           District Court of the Fourth Judicial District,
                       In and For the County of Missoula, Cause No. DV-16-342
                       Honorable John W. Larson, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Allen James Potter, Self-Represented, Shelby, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss,
                       Assistant Attorney General, Helena, Montana

                       Kirsten Pabst, Missoula County Attorney, Missoula, Montana


                                                   Submitted on Briefs: April 5, 2017

                                                              Decided: May 23, 2017


Filed:

                       __________________________________________
                                         Clerk
Justice James Jeremiah Shea 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     Allen J. Potter appeals an order of the Fourth Judicial District Court, Missoula

County, dismissing Potter’s petition for postconviction relief for failure to state a claim

for relief. We address whether the District Court erred by dismissing Potter’s petition.

We affirm.

¶3     On August 24, 2006, Potter was convicted of felony aggravated assault, and was

designated as a Persistent Felony Offender (PFO).          After reviewing a presentence

investigation report (PSI), the District Court sentenced Potter to twenty years without

possibility of parole for the assault, and an additional fifty years with twenty suspended

as a PFO. Following the sentencing, Potter filed his first petition for postconviction relief

for ineffective assistance of counsel, but the case was dismissed for failure to state a

claim. On March 15, 2013, Potter petitioned for a writ of habeas corpus in which he

claimed the State incorrectly sentenced him by giving him a PFO sentence and a sentence

for the aggravated assault to be served consecutively, rather than a single PFO sentence.

The State conceded the argument, and we granted the writ and remanded the case for the

sole purpose of correcting Potter’s sentence.      On remand, the District Court held a

resentencing hearing and imposed a seventy-year PFO sentence with twenty years


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suspended. On April 13, 2016, Potter filed a second petition for postconviction relief,

again asserting ineffective assistance of counsel. Potter’s petition was denied, and he

timely appealed.

¶4     We review petitions for postconviction relief to determine whether the district

court’s findings of fact are clearly erroneous, and whether the district court’s conclusions

of law are correct. State v. Evert, 2007 MT 30, ¶ 12, 336 Mont. 36, 152 P.3d 713.

¶5     Potter’s second petition for postconviction relief once again claims ineffective

assistance of counsel, this time alleging his attorney failed to address how the relationship

between Potter and the victim was relevant to the sentencing, and failed to call an expert

witness to discuss how Potter’s relationship with the victim impacted his emotional state.

The State argues Potter’s petition fails to state a claim for relief and that we should affirm

the District Court’s dismissal of Potter’s petition. We agree.

¶6     Petitions for postconviction relief must be based on something more than “mere

conclusory allegations.” Kelly v. State, 2013 MT 21, ¶ 9, 368 Mont. 309, 300 P.3d 120.

Section 46-21-104, MCA, details the requirements for a petition for postconviction relief:

       (1) The petition for postconviction relief must:
              (a) identify the proceeding in which the petitioner was convicted,
       give the date of the rendition of the final judgment complained of, and
       clearly set forth the alleged violation or violations;
              (b) identify any previous proceedings that the petitioner may have
       taken to secure relief from the conviction; and
              (c) identify all facts supporting the grounds for relief set forth in the
       petition and have attached affidavits, records, or other evidence establishing
       the existence of those facts.

We have previously held that § 46-21-104(1)(c), MCA, “sets forth a specific list of items

that must be a part of every petition for postconviction relief.” Nava v. State, 2011 MT


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77, ¶ 12, 360 Mont. 96, 255 P.3d 53 (quoting State v. Finley, 2002 MT 288, ¶ 13, 312

Mont. 493, 59 P. 3d 1132) (emphasis in original).           Failure to comport with the

requirements of § 46-21-104, MCA, is grounds for dismissal without an evidentiary

hearing. Herman v. State, 2006 MT 7, ¶ 15, 330 Mont. 267, 127 P.3d 422.

¶7        The District Court concluded Potter failed to state a claim for relief. Potter’s

petition contained no attached affidavits, records, or other evidence establishing the

existence of those facts that would support his allegations of ineffective assistance of

counsel. As such, his petition was not in compliance with the necessary requirements set

out in § 46-21-104, MCA, and therefore failed to state a claim for relief. Moreover, any

attempt by Potter to resurrect his issues with the PSI falls well outside the scope of our

remand. The District Court did not err in dismissing Potter’s postconviction 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 findings of fact were

not clearly erroneous and its interpretation and application of the law was correct. We

affirm.

                                                  /S/ JAMES JEREMIAH SHEA

We Concur:

/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ JIM RICE




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