No. 80-371 

IN THE SURPEME COURT OF THE STATE OF MONTANA 

1980 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsJACK G. STANDLEY, 

Defendant and Appellant. 

Appeal from: District Court of the Second Judicial District, 

In and for the County of Silver Bow, 

The Honorable Arnold Olsen, Judge presiding. 

Counsel of Record: 

For Appellant: 

Joseph C. Engel, 111, Butte, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

John G. Winston, County Attorney, Butte, Montana 

Submitted on Briefs: October 23, 1980 

Decided: April 1, 1981 

Filed: - RPR 1 1981 
Mr. Justice John C. Sheehy delivered the Opinion of 

the Court. 

Jack G. Standley appeals from a decision of the 

District Court, Second Judicial District, Silver Bow County, 

dismissing his petition for post-conviction relief. 

Standley filed his petition for post-conviction relief 

in the Silver Bow District Court on January 4, 1980, 

relating to his 1956 rape conviction. At the tims, he was 

and still is, an inmate at the Montana State Prison, serving 

a sentence imposed on him for felony theft on December 2, 

1978, in the Thirteenth Judicial District Court, Yellowstone 

County. The sentence imposed was the maximum permissible 

sentence. Standley appealed that conviction to this Court. 

We affirmed his conviction, State v. Standley (1978), - 

Mont . , 586 P.2d 1075, 35 St.Rep. 1361. 

In his petition for post-conviction relief, Standley 

requested the Second Judicial District Court, Silver Bow 

County, to review its 1956 judgment of conviction against 

him for rape. Standley contends that his plea of guilty to 

the 1956 rape charge was made without the effective assistance of counsel. Upon his plea of guilty to the rape 

charge, he was sentenced to ten years in the Montana State 

Prison. He fully served his sentence for that crime and was 

released. 

The rape conviction was considered by the Thirteenth 

Judicial District Court, Yellowstone County, when that court 

sentenced the defendant to the maximum sentence for felony 

theft in 1978. 

The District Court, Silver Bow County, dismissed 

Standley's petition for post-conviction relief, concluding 

that the issue is moot and that proper venue for the petition 

should have been the Thirteenth Judicial District Court. 

-2- 
On those two grounds, the District Court was in error. 

Section 46-21-101, MCA, expressly allows the petition for 

post-conviction relief to be presented to ". . . the court 

which imposed the sentence . . ." Therefore, venue of the 

petition for post-conviction relief was proper in the Silver 

Bow County District Court. 

The Silver Bow County District Court found that the 

petition for post-conviction relief was moot because the 

ten-year sentence had been served. The United States Supreme 

Court has held that a criminal case is not moot if there is 

a possibility that any collateral legal consequence will be 

imposed on the basis of the challenged conviction. Pollard 

v. United States (1957), 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed. 

2d 393; St. Pierre v. United States (1943), 319 U.S. 41, 63 

S.Ct. 910, 87 L.Ed. 1199. We held to the same effect in 

Town of White Sulphur Springs v. Voise (1959), 136 Mont. 1, 

343 P.2d 855. Here, the petition for post-conviction relief 

is not moot sinply because the sentence has been served. 

Section 46-21-102, MCA, provides that a petition for 

post-conviction relief may be filed at any time after conviction. We held in In Re KcNair (1980), - Mont . - , 615 

P.2d 916, 37 St.Rep. 1487, that section 46-21-102, meant 

that no statute of limitations, no res judicata, and no 

doctrine of laches is applicable. (615 P.2d at 917.) Yet 

we are faced with much the same situation that this Court 

faced McNair, in that there has been a long delay before the 

petition for post-conviction relief has been filed. In the 

McNair case, it was 8 1/2 years; in this case, 25 years have 

elapsed since the conviction on the rape charge. 
In McNair, we held that despite the inapplicability of 

res judicata, laches, and any statute of limitations, the 

long delay in filing the petition for post-conviction relief 

raised the question of the good faith and credibility of the 

applicant. We find that the same situation exists here. In 

effect, the petition for post-conviction relief, if granted, 

would require that defendant's plea of guilty entered to the 

rape charge in 1956 be allowed to be withdrawn and the rape 

charge tried on the merits, presuming a plea of not guilty 

from the petitioner. The impracticality of such a possibility is manifest. We repeat the quotation from United 

States v. Bostic (D.D.C. 1962), 206 F.Supp. 855, 856-57, 

found in our McNair case: 

"Obviously, the burden of proof on a motion 

to vacate a sentence under 28 U.S.C. § 2255 

is on the moving party, because there is 

a presumption of regularity of the conviction. 

The burden is particularly heavy if the issue 

is one of fact and a long time has elapsed since 

the trial of the case. While neither the statute 

of limitations nor laches can bar the assertion 

of a constitutional right, nevertheless, the 

passage of time may make it impracticable to retry 

a case if the motion is granted and a new trial 

is ordered. No doubt, at times such a motion 

is a product of an afterthought. Long delay 

may raise a question of good faith." 

The petitioner's record while serving his sentence for 

rape speaks against his present contention about counsel. 

After serving three years on the rape charge, he was paroled. 

While on parole, he had a party at which five girls under 

the age of 18 were in attendance. During the party, it was 

charged that he sexually assaulted one of the juvenile 

girls. Shortly after the incident, he left the State of 

Montana and a warrant was issued for his arrest. He was 

arrested in the State of Washington, and returned to Montana 

as a parole violator, where he finished out his sentence. 

He was released in 1968. 
It might be considered unfair that the District Court 

in Yellowstone County, in assessing the maximum penalty for 

the felony theft charge, could consider the past record of 

the petitioner, including his conviction for the rape charge 

which he now attacks when the way is not osen for defendant 

to secure post-conviction relief. The unfairness, if it 

exists, is not of the State's making. The long delay in 

petitioning for post-conviction relief over a 25-year period 

can be attributed only to the petitioner. He must bear the 

consequences. 

The appeal is dismissed. 

Justice 

We Concur: 

Chief Justice 

0 Justice 

This cause was submitted prior to January 5, 1981. 
Mr. Justice Daniel J. Shea dissenting: 

The result of the majority opinion is clear: petitioner 

is thrown out of court without a hearing on the merits. I 

fail, however, to make any sense of the opinion; it is illogical 

and unfair. 

The essence of the majority position is that a trial court 

may sentence a man to a longer prison sentence because of a 

conviction that occurred 22 years before the second sentence, 

but that the defendant cannot challenge the legality of the 

first conviction which has resulted in a longer prison sentence 

after a second conviction 22 years later. If the State can use 

a record 22 years ago to increase a prison sentence, fundamental 

fairness requires that a defendant should also be able to 

challenge the legality of that first conviction. But the majority 

holds in effect that laches is a one-way street: it operates 

against the defendant but does not operate against the State. 

It is, furthermore, bad law to rule, without an evidentiary 

record before this Court, that petitioner is guilty of bad faith 

in waiting so long to file his petition for post-conviction 

relief. Only after an evidentiary hearing and a ruling by the 

trial court, should we as an appellate court be in a position 

to review the evidence and ruling of the trial court on the 

question of good versus bad faith. This decision again demonstrates 

that this Court is abandoning its rule as an appellate court 

and assuming the role of a trial court and appellate court rolled 

into one. 

The bad faith ruling of the majority, on closer analysis, 

seems to be grounded on a belief that petitioner is guilty of 

laches--a ground expressly acknowledged by the majority as not 

being able to defeat a petition for post-conviction relief. At 

one point, the opinion states: "In the McNair case, it was 8 1/2 
years; in this case, 25 years have elapsed since the conviction 

on the rape charge." At another point, the majority continues: 

"The long delay in petitioning for post-conviction relief over 

a 25-year period can be attributed only to the petitioner. He 

must bear the consequences." This language is the language 

of laches. I fail to see how the lapse of years by itself 

establishes bad faith in filing a petition for post-conviction 

relief. But that is the essence of the majority opinion. 

Although the majority claimto follow In Re McNair (1980), 

Mont . , 615 P.2d 916, 37 St.Rep. 1487, the opposite is 

true--McNair is misread and misapplied. McNair holds in part, 

that a petition for post-conviction relief cannot be defeated 

by a claim of statute - of limitations, res judicata, or laches. 

(McNair, 615 P.2d at 917.) Because the majority acknowledges 

this to be the law, I fail to see how petitioner can be thrown 

out of court without a hearing on the merits. McNair, applied 

here, means that petitioner cannot be thrown out of court as 

a matter of law on grounds of a statute of limitations, of res 

judicata, or of laches. Rather, he is entitled to a hearing 

on the merits. Good faith or bad faith in filing the petition 

is merely a factor to consider along with all the other factors 

in determining whether a petitioner is entitled to relief. But 

here the majority, without an evidentiary record, declares that 

petitioner is guilty of bad faith, and throws him out of court 

without a hearing. The majority ignores the fact that in McNair, 

we ruled on the merits of petitioner's claim for post-conviction 

relief. 

If McNair is to be followed, it cannot be used as authority 

to throw petitioner out of court without a hearing. Procedurally, 

the situation in McNair at the time of our ruling on the merits, 

is wholly unlike this case. 
In McNair, the petitioner filed an original petition for 

post-conviction relief before this Court rather than before 

the District Court. Contrary to the implications of the 

majority opinion here, we did not dismiss the McNair petition 

because petitioner was guilty of bad faith. Rather, based on 

the full record that was before us, we - ruled -- on the merits of - 

his claim. We ruled that he was competent to enter a voluntary 

and intelligent guilty plea, and we ruled that he had effective 

assistance of counsel. (615 P.2d 919-920.) 

In declining to remand the case to District Court for an 

evidentiary hearing, we concluded that the record before us 

was as complete as it could be, and therefore that it would 

be a useless act to require an evidentiary hearing. (615 P.2d 

919-920.) McNair, therefore, was a decision on the merits of 

the petition. In contrast, petitioner here is denied a hearing 

and ruling on the merits. 

Petitioner's case did not come to this Court with a full 

evidentiary development of his claimed constitutional violation. 

In contrast to McNair, petitioner filed his petition in District 

Court rather than before this Court, but he was thrown out on 

the grounds of mootness and improper venue before there was ever 

a hearing on the merits. The question before this Court is 

simply whether he was properly thrown out of court on either the 

mootness ground (which would preclude a further petition) or 

on the venue ground (which would not preclude another petition 

in the proper court). In response, this Court enters a strange 

ruling: we rule that the District Court was wrong on both 

rulings, but nonetheless, we decide, without a record, that 

petitioner is guilty of bad faith and therefore throw him out 

of court. This decision ignores the proper role of an appellate 

court. 
Nor does the majority accurately assess the legal 

situation in concluding that the 25-year delay in filing 

the petition "can be attributed only to the petitioner." 

The majority ignores the fact that for at least 13 of those 

years, petitioner had no legal standing to challenge the 

1956 conviction, and that he acquired this standing only when 

the Yellowstone County District Court used the 1956 conviction 

as one of the reasons to impose the maximum sentence for the 

1978 theft conviction. Proper application of the holding in 

Town of White Sulphur Springs v. Voise (1959), 136 Mont. 1, 

343 P.2d 855, leads to this conclusion. 

In Voise, cited but ignored by the majority, this Court 

held that where a collateral consequence will befall one as a 

result of a previous conviction, he has standing to challenge 

the legality of that conviction. We have not yet, however, 

adopted the more liberal rule that allows a person at any time 

to challenge a previous conviction, even if the sentence has 

been fully served. This rule is based on the enlightened belief 

that the desire to clear one's name provides sufficient standing. 

See, 9 A.L.R.3d 462. 

By the rationale of the Voise case (still ostensibly the 

law in this state), petitioner could not challenge his conviction 

between 1968 and minimally 1978. He was released from prison 

in 1968 after serving the full sentence, and was not convicted 

of theft until 1978. It was not until he was sentenced in 1978 

that petitioner had standing to challenge the 1956 conviction, 

because that conviction was used as a factor in the imposition 

of the maximum 10-year sentence for theft. 

Further, petitioner could not realistically challenge his 

conviction until this Court finally ruled on the merits of his 

1978 theft conviction. His main contention on appeal was that 
accomplice testimony was insufficiently corroborated. If 

he prevailed, it would require a reversal and dismissal. In 

such event, under the Voise rationale, he could not challenge 

the 1956 conviction. We upheld the theft conviction on 

November 8, 1978, and denied the petition for rehearing on 

December 14, 1978. State v. Standley (1978), - Mont . - I 

586 P.2d 1075, 35 St.Rep. 1631. If petitioner had filed a 

petition for post-conviction relief before his appeal was 

decided, doubtless a district court or this Court would have 

ruled that he must first await the outcome of his appeal. A 

favorable ruling on his appeal would render his petition moot. 

Therefore, if we eliminate the years that, under the 

Voise rationale, cannot be held against petitioner in filing 

his petition (1968-1980), 12 years remain (1956-1968) in which 

petitioner could have filed a petition to overturn his 1956 

conviction. I am unwilling to declare that he is guilty of 

bad faith in not doing so in that 12-year period, and this is 

especially so where there has been no evidentiary hearing. 

It appears, however, that the majority adopts a policy 

declaring that a long delay in filing a petition for postconviction relief automatically amounts to bad faith and bars 

the right to a hearing on the merits. Such a policy is actually 

based on laches. But whatever the case, an explanation is 

particularly called for when, under the Voise rationale, only 12 

of the 25 years can be assessed to the petitioner in determining 

the good faith versus bad faith issue. But the majority has 

ignored the logical application of Voise to petitioner's case. 

Two other matters need to be mentioned. The majority refers 

to petitioner's problems on parole and his parole revocation 

for the apparent purpose of implying at least that he had 

effective counsel in 1956 when he entered his guilty plea. But 
there is no connection between a parole revocation sometime 

after 1959 and a claim of ineffective assistance of counsel 

arising in 1956. How can a parole revocation sometime after 

1959 have any legitimate bearing on a claim that one was denied 

effective assistance in 1956? Another apparent reason for 

raising petitioner's parole problems and revocation, is to 

declare in effect that petitioner must be a bad person and 

therefore must have committed the rape in 1956 if he was charged 

with sexual assault while out on parole. But petitioner was 

never convicted of the sexual assault charge and we have no 

basis in the record before us to determine that his parole 

revocation was effectively an admission that he committed the 

sexual assault. Aside from its irrelevance to the issue of 

incompetent counsel in 1956, this is again getting into the 

realm of fact-finding that is better left to the trial courts. 

In quoting from McNair, which in turn quotes from United 

States v. Bostic (D.D.C. 1962), 206 F.Supp. 855, the majority 

fears that the prosecution will incur insurmountable difficulties 

in presenting another case if petitioner succeeded in getting 

his 1956 conviction set aside. I must agree that the difficulties 

could well be insurmountable, but that is not an important factor 

in this case. Petitioner has already served a full sentence 

for that crime, and should he succeed in getting the 1956 conviction set aside, I doubt that any prosecutor would be interested 

in taking the case to trial. What would be gained? 

In concluding this dissent, I again, admit my inability 

to analyze the majority decision. I fear, however, that under 

the guise of bad faith, it has adopted a per-se laches rule 

that will automatically bar post-conviction relief in situations 

where an appreciable time has elapsed between the conviction 

and the petition. If that is the holding, it will work a great 

injustice in the long run. 
I would reverse the District Court order and require 

a full evidentiary hearing on the merits, with good faith 

versus bad faith in the delay in bringing the petition, to be 

considered as only one of the many factors that can be properly 

considered. 

I join in the foregoing dissent. 

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Justice