                                                                                          June 18 2013


                                          DA 12-0410

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2013 MT 164N



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

WILLIAM SHEGRUD,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Twenty-First Judicial District,
                       In and For the County of Ravalli, Cause No. DC 04-171
                       Honorable James A. Haynes, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Jeanne M. Walker; Hagen & Walker, PLLC; Billings, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General; Mardell Ployhar, Assistant
                       Attorney General; Helena, Montana

                       William Fulbright, Ravalli County Attorney; Hamilton, Montana



                                                   Submitted on Briefs: May 28, 2013

                                                              Decided: June 18, 2013


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), 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     William Shegrud (Shegrud) appeals from the District Court’s summary dismissal

of his petition for postconviction relief, which challenged the court’s revocation of

sentences imposed upon Shegrud in three different criminal proceedings. Shegrud filed

appeals in each of the three proceedings, and by order of this Court on January 14, 2013,

the three appeals were consolidated under Cause No. DA 12-0410. We have revised the

caption to correctly reflect a postconviction proceeding.

¶3     In 2005, Shegrud pled guilty to criminal distribution of dangerous drugs, a felony,

in violation of § 45-9-101, MCA, and received a six-year deferred sentence. He also pled

guilty that year to transferring illegal articles, a felony, in violation of § 45-7-307, MCA,

and received another six-year deferred sentence, to be served concurrently with his

deferred sentence for the dangerous drug offense. In 2007, Shegrud pled guilty to assault

on a minor, a felony, in violation of § 45-5-212(1), MCA, and partner or family member

assault, a misdemeanor, in violation of § 45-5-206(1), MCA. He received a five-year

suspended commitment to the Department of Corrections for the assault on a minor

conviction, and a one-year suspended sentence for the partner or family member assault
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conviction, with these sentences to run concurrently. Shegrud’s deferred sentences in his

two 2005 convictions were also revoked and in each case he was sentenced to a ten-year

commitment to the Department of Corrections, with six years suspended, to run

concurrently with each other and with his other sentences.

¶4    In 2011, Shegrud was arrested for criminal endangerment, aggravated driving

under the influence, displaying incorrect license plates on his vehicle, and operating a

motor vehicle while his privilege to do so was revoked. Following his arrest, the State

filed petitions to revoke all three of Shegrud’s suspended felony criminal sentences. An

adjudicatory hearing was conducted by the District Court on April 5 and 13, 2012, during

which Shegrud admitted to violating the condition of his sentences prohibiting possession

and consumption of alcohol. At the conclusion of the hearing, the District Court found

that Shegrud had violated additional conditions of his probation. Shegrud was then

sentenced to commitments to the Department of Corrections with no time suspended, his

commitments to run concurrently. Shegrud did not appeal from these judgments.

¶5    In June 2012, Shegrud filed a very brief, handwritten petition for postconviction

relief alleging that his arrest while on probation had occurred in violation of § 46-23-

1012, MCA, because there was “no evidence of 12 hour Authorization to pick up and

hold was filed and followed,” and requesting “that this be passed to a substitute Judge”

because of bias, based upon statements made by the presiding judge during the 2011

revocation hearing. The request for disqualification was not supported by affidavit. At a

hearing conducted on the petition, the District Court orally addressed the issue of bias,
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indicating that bias had not been established by the petition and apologizing for any

offensive remarks. The District Court also addressed the substantive allegations of the

petition, stating that the petition was supported only by generalizations and that the

statutory violation issue “should have come up long before now. That’s something that

has to do with a basis for your even going through the revocation proceeding, and you

had an opportunity to challenge that.” The District Court then summarily denied the

petition without further proceedings.

¶6     On appeal, Shegrud argues the District Court was without authority to proceed on

the petition in light of the disqualification request, that there was insufficient evidence to

support the District Court’s revocation finding that Shegrud had violated driving

conditions, which in turn demonstrate the District Court Judge’s bias, and that the District

Court erred by denying the petition without first conducting an evidentiary hearing.

Shegrud also requests the Court to invoke the plain error doctrine and undertake review

of his claim that his revocation counsel rendered ineffective assistance of counsel by

failing to raise the issue that his probation arrest violated statute and by failing to seek

disqualification of the District Court Judge prior to the revocation hearing. The State

responds that Shegrud failed to follow the statutory process for disqualification by failing

to support his request by affidavit establishing facts demonstrating bias or prejudice,

failed to file a legally sufficient postconviction relief petition, and that Shegrud’s

ineffective assistance of counsel claims are not appropriate for plain error review.


                                              4
¶7     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

issues in this case are either legal issues that are controlled by settled law and correctly

interpreted by the District Court, or ones of judicial discretion and there clearly was not

an abuse of discretion. Shegrud did not follow the statutory process for disqualification

and the necessity of plain error review has not been established.          His petition for

postconviction relief was legally insufficient.

       “[U]nlike civil complaints, the postconviction statutes are demanding in
       their pleading requirements.” . . . “a petition for postconviction relief must
       be based on more than mere conclusory allegations. It must ‘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.’”

Kelly v. State, 2013 MT 21, ¶ 9, 368 Mont. 309, 300 P.3d 120 (internal citations omitted).

¶8     Affirmed.



                                                  /S/ JIM RICE


We concur:

/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
/S/ BRIAN MORRIS
/S/ BETH BAKER




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