DA 17-0325

IN THE SUPREME COURT OF THE STATE OF MONTANA

2017 MT 193N

NICOLE LEANNE KENT, a/k/a

NICOLE LEANNE LINDBLOM,

 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-2017-299

Honorable Kathy Seeley, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Colin M. Stephens, Nick Kirby Brooke, Smith & Stephens, P.C.,

Missoula, Montana

For Appellee:

Timothy C. Fox, Montana Attorney General, Ryan Aikin, Assistant

Attorney General, Helena, Montana

Leo Gallagher, Lewis and Clark County Attorney, Helena, Montana

Submitted on Briefs: July 12, 2017

 Decided: July 12, 2017

 Issued: August 8, 2017

Filed:

__________________________________________

Clerk

08/08/2017

Case Number: DA 17-0325
2

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 Nicole Kent (Kent) appeals the Montana First Judicial District Court’s order 

denying her petition for postconviction relief. We affirm.

¶3 Kent is a Canadian citizen who has lived in Helena, Montana, since childhood. In 

May 2014 Kent was charged with multiple felony and misdemeanor drug-related criminal 

violations. Pursuant to a plea agreement, Kent pled guilty to three of the felony charges: 

possession of dangerous drugs, possession with intent to distribute, and child 

endangerment. All remaining charges were dismissed. In November 2014 Kent was 

sentenced to three concurrent, five-year commitments to the Department of Corrections 

(DOC), with two years suspended, and transferred to the “Passages” chemical 

dependency treatment facility in Billings. Either prior to, or shortly after, her sentencing 

hearing, Kent was visited by an agent from Homeland Security who placed an 

immigration detainer on her. After her transfer to Billings she was interviewed by 

another federal agent regarding immigration. On January 11, 2017, Kent was paroled and 

released into the custody of federal immigration authorities, and shortly thereafter she 

was transferred to an immigration holding facility in Tacoma, Washington. In Tacoma,
3

Kent met with an attorney who advised that one of the consequences of her guilty plea to 

the felony drug distribution offense was mandatory deportation. Thereafter, on April 20, 

2017, Kent filed a petition for postconviction relief on the grounds that her attorney, who 

represented her during plea agreement and sentencing, was ineffective because he failed 

to investigate and advise her of the immigration consequences of her guilty plea to a drug 

distribution offense. The District Court denied the petition, without a hearing, on the 

grounds that it was untimely and therefore procedurally barred. The court further 

concluded that there was no basis for applying an equitable tolling exception to the time 

bar.

¶4 Section 46-21-102(1), MCA, requires a petition for postconviction relief be filed 

within one year of the date the conviction becomes final. There was and is no dispute 

that Kent failed to file her petition within one year. Thus, the decisive issue for the 

District Court, and now this Court, is whether the alleged ineffective assistance of 

counsel claim triggered an “equitable tolling” of the statute until Kent learned for certain 

that she was subject to mandatory deportation. The District Court summarized its reasons 

for rejecting Kent’s claim of equitable tolling as follows: 

[T]he threshold consideration here is not whether Kent’s counsel was 

ineffective. Rather, the issue is whether her claim of ineffective assistance 

is procedurally barred. . . . [T]he circumstances in the instant case do not 

warrant a tolling of the time bar. Kent knew early on that there may be 

immigration consequences resulting from a criminal conviction. She 

repeatedly informed her attorney that she was concerned that a felony 

conviction would impact her immigration and residency status. She states 

also that she rejected one plea offer, fearing that a felony conviction would 

result in deportation. Further, she was visited by a Homeland Security 

agent in October 2014 who told her he was placing an immigration detainer 
4

on her and informed her she would have to appear before an immigration 

judge following completion of her sentence.

Thus, Kent knew of the immigration detainer in October 2014. 

Further, she recites meetings and communications from ICE in late 2014. 

Nonetheless, she raised no ineffective assistance claim until the instant case 

was filed in April 2017. . . . [S]he provides no adequate explanation for the 

years of delay in filing her petition for postconviction relief. 

The [c]ourt concludes that application of the time bar in this case 

does not work a clear miscarriage of justice so obvious that it compromises 

the integrity of the judicial process. (Citation omitted.)

¶5 We review a district court’s denial of a petition for postconviction relief to 

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

conclusions of law are incorrect. Marble v. State, 2015 MT 242, ¶ 13, 380 Mont. 366, 

355 P.3d 742. We review de novo a district court’s decision not to apply the doctrine of 

equitable tolling as it relates to a petition for postconviction relief. Davis v. State, 2008 

MT 226, ¶ 10, 344 Mont. 300, 187 P.3d 654.

¶6 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, all of which were appropriately and 

correctly applied by the District Court.

¶7 Affirmed.

/S/ MICHAEL E WHEAT

We Concur:

/S/ MIKE McGRATH

/S/ JAMES JEREMIAH SHEA

/S/ LAURIE McKINNON

/S/ JIM RICE