NO. 93-178

IN THE SUPREME COURT OF THE STATE OF MONTANA

1993

STATE OF MONTANA, ir ._-ai,

$

Plaintiff and Respondent, '

v.

MARK EMERSON PECK, a/k/a MARK LEE,

Defendant and Appellant.

APPEAL FROM: District Court of the Second Judicial District,

In and for the County of Sliver Bow,

The Honorable Mark P. Sullivan, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Mark Emerson Peck, Pro Se, Deer Lodge, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Cregg W. Coughlin, Assistant Attorney

General, Helena, Montana

Robert M. McCarthy, Silver Bow County

Attorney, Brad Newman, Deputy County

Attorney, Butte, Montana

Filed:

Submitted on Briefs: August 19, 1993

Decided: December 22, 1993
Justice William E. Hunt, Sr., delivered the opinion of the Court.

Defendant/Appellant, Mark Emerson Peck, appeals pro se from an

order of the Second Judicial District Court, Silver Bow County,

dismissing his petition for post-conviction relief on the grounds

that he failed to state a claim for relief, and denying his motion

for appointment of counsel for a hearing on the petition.

We affirm.

1 . Did the District Court err when it denied appellant's

petition for post-conviction relief and assistance of counsel for

a hearing on the petition, pursuant to § 46-21-201(l) and (2), MCA?

2 . Did appellant's sentence and condition of parole

ineligibility violate the Eighth Amendment to the United States

Constitution prohibiting cruel and unusual punishment?

On November 21, 1991, a deputy county attorney of Silver Bow

County charged appellant by information with attempted burglary and

burglary. On January 9, 1992, appellant entered a plea agreement

in which he pled guilty to the count of attempted burglary. In

exchange, the State agreed to dismiss the burglary count, abandon

pursuit of a persistent felony offender designation, and recommend

a five-year sentence to run concurrently with any sentence imposed

upon revocation of his suspended sentence on a separate charge.

The District Court accepted the plea agreement pursuant to

5 46-12-211, MCA. Sentencing was set for February 5, 1992, but

appellant failed to appear at the hearing. On June 16, 1992,

authorities apprehended him. On June 25, 1992, at his rescheduled

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sentencing hearing, appellant moved the District Court to withdraw

his guilty plea on the grounds that "his best interests would be

served" because he believed he would be facing additional charges.

The District Court denied his motion to withdraw his guilty plea,

sentenced him to ten years at the Montana State Prison, and after

stating specific reasons, ordered him ineligible for parole or

participation in a supervised release program.

The record reveals no evidence that appellant attempted to

perfect an appeal within 60 days of the judgment of June 25, 1992.

Rule 5(b), M.R.App..P. On January 19, 1993, appellant filed in the

District Court both a petition for post-conviction relief and a

motion for appointment of counsel for a hearing on the petition.

In his petition, appellant asserted that the court's designation of

him as ineligible for parole was cruel and unusual punishment in

violation of the Eighth Amendment to the United States Constitution

because the sentence was disproportionate to the offense charged.

Additionally, appellant asserted that he had insufficient funds

with which to hire an attorney regarding the petition. On

February 8, 1993, the State filed a brief in opposition to

appellant's petition for post-conviction relief. On March 1, 1993,

pursuant to 5 46-21-201(l) and (2), MCA, the District Court

dismissed the petition and denied appellant's motion for

appointment of counsel because a hearing on the petition was not

required. On March 15, 1993, appellant filed an appeal with this

Court.

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Did the District Court err when it denied appellant's petition

for post-conviction relief and assistance of counsel for a hearing

on the petition, pursuant to 5 46-21-201(l) and (2), MCA?

Section 46-21-201, MCA, in part, governs the court's actions

in proceedings on petitions for post-conviction relief and provides

as follows:

Unless the petition and the files and records of the case

conclusively show that the petitioner is not entitled to

relief, the court shall cause notice of the petition to

be served upon the county attorney in the county in which

the conviction took place and upon the attorney general

and order them to file a responsive pleading to the

petition. Following its review of the responsive

pleading, the court may dismiss the petition as a matter

of law for failure to state a claim for relief or it may

grant a prompt hearing on the petition, determine the

issue, and make findings of fact and conclusions with

respect to the petition.

A petitioner's burden, when requesting post-conviction relief,

is to show by a preponderance of evidence that the facts justify

relief. Yother v. State (1979), 182 Mont. 351, 355, 597 P.2d 79,

82; Matter of Jones (1978), 176 Mont. 412, 415, 578 P.2d 1150,

1152. The District Court concluded that appellant had not met this

burden when he failed to show by a preponderance of evidence that

the imposed sentencing condition justified relief. The court based

its decision upon its review of the petition, the State's brief in

opposition, appellant's reply brief, and the entire record. The

court then cited § 46-18-202(2), MCA, authorizing designation of

appellant as ineligible for parole, and in support of the

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sentencing condition, noted appellant's extensive criminal history

and his previous failure to comply with the law while on supervised

release. The reasons set forth by the District Court are

well-reasoned and supported by the record. Pursuant to

5 46-21-201(l), MCA, the court properly denied the petition for

post-conviction relief because it did not state a claim for relief.

The court also properly denied appellant's motion for

assistance of counsel for a hearing on the petition for

post-conviction relief. Section 46-21-201(2), MCA, provides that:

If a hearing is required or the interests of justice

require, the court shall appoint counsel for a petitioner

who qualifies for the appointment of counsel under

Title 46, chapter 8, part 1.

The court declined to appoint counsel for a hearing on appellant's

petition because, after review of the petition, the briefs, and the

record, it determined that a hearing was not required. The court

properly denied appointment of counsel for a hearing on the

petition for post-conviction relief.

II.

Did appellant's sentence and condition of parole ineligibility

violate the Eighth Amendment to the United States Constitution

prohibiting cruel and unusual punishment?

In State v. Austad (1982), 197 Mont. 70, 100, 641 P.2d 1373,

1389, we held that a sentence which falls within the maximum

statutory guideline does not violate the Eighth Amendment

prohibition against cruel and unusual punishment (citing Matter of

5
Jones (1978), 176 Mont. 412, 420, 578 P.2d 1150, 1154), and review

properly lies with the Sentence Review Division. (citing State v.

Mets. (1979), 184 Mont. 533, 537, 604 P.2d 102, 104). See&o State

v. Valcourt (1992),. 254 Mont. 174, 835 P.2d 753; State v. Watson

(1984) t 211 Mont. 401, 423-24, 686 P.2d 879, 890-91. A t

sentencing, the District Court determined that appellant entered

his plea voluntarily and knowingly. The court then sentenced

appellant to ten years at the Montana State Prison and imposed the

condition that he be ineligible for,parole or participation in a

supervised release program.

The court properly sentenced appellant. The statutory maximum

penalty for attempted burglary is imprisonment for 20 years or a

$50,000 fine, or both. Sections 45-6-204 and 45-4-103(3), MCA.

Here, the ten-year sentence imposed by the court was less than the

statutory maximum, and appellant received no fine. Just as

important, the District Court properly imposed the restriction that

appellant be ineligible for parole or a supervised release program.

Section 46-18-202(2), MCA, provides that:

Whenever the district court imposes a sentence of

imprisonment in the state prison for a term exceeding

1 year, the court may also impose the restriction that

the defendant be ineligible for parole and participation

in the supervised release program while serving his term.

If such a restriction is to be imposed, the court shall

state the reasons for it in writing. If the court finds

that the restriction is necessary for the protection of

society, it shall impose the restriction as part of the

sentence and the judgment shall contain a statement of

the reasons for the restriction.

6
&%?a.ko State v. Evans (1991), 247 Mont. 218, 806 P.2d 512: State v.

Stumpf (1980), 18'7 Mont. 225, 609 P.2d 298. Here, the court

provided specific reasons for imposing the restriction:

appellant's extensive history of criminal behavior: his

demonstrated inability to conform to the law while under parole or

probation supervision; and the need to protect society.

In sum, we hold that the District Court's imposition of this

sentencing condition is not cruel and unusual punishment.

We affirm.

Justice

We concur: