No. 95-316

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

APPEAL FROM: District Court of the Third Judicial District,

In and for the County of Powell,

The Honorable Ed McLean, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Michael Donahoe, Assistant Federal Defender, Helena,

Montana

For Respondent:

Joseph P. Mazurek, Attorney General, Jennifer

Anders, Pamela Collins, Assistant Attorneys General,

Helena, Montana; Christopher Miller, Powell County

Attorney, Deer Lodge, Montana

Filed:

Submitted on Briefs: November 16, 1995

Decided: November 30, 1995
Justice James C. Nelson delivered the Opinion of the Court.

William Gollehon (Gollehon) was convicted of deliberate

homicide by accountability and sentenced to death. He appeals from

an order of the District Court denying his motion for a new trial

and request for discovery. We affirm the trial court's denial of

Gollehon's motion for new trial; we do not address the trial

court's ruling on his request for discovery.

Gollehon raises on appeal the issue of whether the State

failed to timely disclose information that he could have used as

mitigating evidence at his sentencing hearing and whether that

failure justifies reversal of the death sentence that was imposed

in his case.

We restate the issue as whether Gollehon's raising this issue

in the context of an untimely motion for new trial bars our

consideration of the merits of his claim. We hold that it does.

BACKGROUND

In October 1991, Gollehon was convicted of deliberate homicide

by accountability and sentenced to death for his participation in

the beating death of fellow prison inmate, Gerald Pileggi. This

Court upheld that conviction and sentence in State v. Gollehon

(1993) I 262 Mont. 1, 864 P.2d 249.

On March 11, 1994, Gollehon petitioned the United States

Supreme Court for certiorari. That Court declined to accept

Gollehon's case for review in an order published October 3, 1994.

Gollehon v. Montana (19941, _ U.S. _, 115 S.Ct. 95, 130 L.Ed.Zd

45.

2
The State then moved the District Court for a hearing to reset

Gollehon's execution date since the previous execution date had

expired during the direct appeal process. At the March 24, 1995

hearing, Gollehon moved the District Court for an order requiring

the State to produce any pretrial or posttrial promises or

agreements with two eyewitnesses who testified at Gollehon's trial.

Gollehon argued that this information, had it been disclosed, could

have been used as impeachment evidence at trial.

The District Court granted Gollehon's request for discovery of

pretrial agreements between the State and the eyewitnesses and

ordered further briefing on the issue of whether Gollehon was

entitled to any posttrial agreements. The District Court reset

Gollehon's execution for June 11, 1995.

On March 29, 1995, Gollehon moved for a new trial and a stay

of execution. The State responded that the motion for new trial

was untimely and should be summarily dismissed on that basis.

The District Court held a hearing on Gollehon's motions on

June 7, 1995, just four days prior to Gollehon's scheduled

execution date. At the hearing, the court determined that

Gollehon's motion for a new trial was untimely. In addition, the

court denied Gollehon's request for discovery of the State's posttrial arrangements with the witnesses, finding that any evidence

regarding posttrial agreements would be irrelevant at sentencing as

it was not the court's function to reweigh the jury's determination

of witness credibility in a capital sentencing proceeding.

Gollehon appeals the order of the District Court denying his

3
motion for a new trial and his request for discovery. Because of

the proximity of Gollehon's execution date, the District Court

issued a stay of execution pending Gollehon's appeal.

DISCUSSION

Gollehon maintains that his appeal "concerns the State's duty

to disclose material information that would have aided [him] in

convincing this Court that the balance of aggravating and

mitigating factors demanded the imposition of a non-death

sentence." Gollehon argues that the State violated its obligations

under Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10

L.Ed.2d 215, and under 46-15-322(l) (e), MCA, in failing to disclose

the 1992 commutation of the sentence of State's witness Armstrong

and his 1993 parole. Armstrong was one of the eyewitnesses who

testified against Gollehon at his homicide trial.

We decline to reach the merits of Gollehon's Brady claim,

however, in the procedural context in which the claim is raised.

Specifically, Gollehon is appealing from the District Court's

denial of his out-of-time motion for new trial. While Gollehon

focuses on his substantive Bradv claim, our initial inquiry is

whether his claim, brought in the context of an untimely motion for

new trial, should even be entertained. We conclude that it should

not.

Section 46-16-702(2), MCA, provides that a motion for a new

trial "must be filed by the defendant within 30 days following a

verdict or finding of guilty. . . .II There is no provision in the

statute for extending that time period. Gollehon's time for filing

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his new trial motion expired November 7, 1991, 30 days from entry

of the verdict on October 7, 1991. Accordingly, his new trial

motion, filed some three and one-half years after the entry of the

verdict, is clearly untimely.

While Gollehon relies on past decisions of this Court (two of

which were written by the author of this opinion) to avoid the

plain and unambiguous requirements of the statute and to reach the

merits, we are now persuaded that we originally started down this

shaky staircase in error and that our judicially created exceptions

to the statute are fast becoming the rule. With that premise in

mind, it is appropriate to re-examine our prior decisions.

State v. Best (1972), 161 Mont. 20, 503 P.2d 997, is cited as

the seminal authority for the argument that evidence newly

discovered posttrial provides an exception to the 30-day filing

requirement for a new trial motion under our present statutory

scheme. In that case the defendant filed in this Court his new

trial motion during the pendency of his direct appeal. We noted

that the motion was both untimely and filed in the wrong court

under 5 95-2101, RCM (1947), the predecessor to 5 46-16-702, MCA.

Best -I 503 P.2d at 1000. In that conclusion we were correct, and we

should have simply refused to entertain the defendant's motion on

that basis. We needlessly went further, however.

In dicta, citing State v. Nicks (1957), 131 Mont. 567, 312

P.2d 519, we stated that,

[i]f the grounds for seeking a new trial do not arise

until after expiration of the 30 day period or until

after the appeal is filed, the proper procedure is to

stay the appeal, remand the case to the district court,

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file the motion, secure the district court's decision

thereon, and continue with the appeal.

Best -I 503 P.2d at 1001.

Unfortunately, under 5 95-2101, RCM (1947) -- the new trial

statute in effect when we decided Best -- Nicks was not authority

either for the referred to "procedure" or for an exception to the

30-day filing requirement. Rather, Nicks involved 5 94-7604, RCM

(1947), which was repealed in 1967 and 5 95-2101, RCM (1947), was

adopted. Section 94-7604, RCM (1947), allowed a new trial motion

to be filed "within thirty days after the discovery of the facts

upon which the party relies in support of his motion Land1 in all

other cases . . . within ten days after the rendition of the

verdict." Section 94-7604, RCM (1947); Nicks -, 312 P.2d at 520.

While we reached the right result in Best, we erred in stating

that we lacked jurisdiction to entertain the new trial motion at

issue there because of the defendant's "failure to follow [the

Nicks] procedure." Best -I 503 P.2d at 1001. While that procedure

may have been available to Nicks under the statute governing his

case, it was not available to Best under the different statute

applicable in that case. The result in Best was correct because

the defendant's motion for new trial was not timely filed -- not

for the reason we articulated.

In State v. Perry (1988), 232 Mont. 455, 758 P.2d 268, the

defendant filed a motion for new trial following the recantation of

the State's eyewitness some 15 years after Perry's murder

conviction. Perrv, 758 P.2d at 269-70. We rejected the State's

argument that the motion, though denoted a motion for new trial,

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was actually a petition for post-conviction relief which was

procedurally barred pursuant to the five year statute of

limitations imposed by 5 46-21-102, MCA. Perry, 750 P.2d at 272.

Moreover, we declined to treat Perry's motion as a petition for

writ of habeas corpus, although we noted that his claim,

nevertheless, sounded in the nature of that relief. 758 Perry,

P.2d at 273. With no statutory posttrial remedies available, we

finally concluded that we must, nevertheless, reach the merits of

Perry's claim because he had no other avenue of relief and that to

deprive him of a method of redress regardless of his diligence or

the justness of his claim would be inconsistent with the intent of

the legislature and with Art. II, sec. 17, of Montana's 1972

Constitution. Perry, 758 P.2d at 272-73.

Perry is unique on its facts. That case does not stand for

the general proposition that a motion for new trial may be

entertained beyond the 30-day filing requirement of § 46-16-702,

MCA, and it is a misapplication of our decision in that case to

argue that its analysis should be extended beyond other cases with

like facts.

State v. Redcrow (1990), 242 Mont. 254, 790 P.2d 449, involved

the defendant's motion for new trial filed approximately two months

following her conviction of deliberate homicide. Redcrow, 790 P.2d

at 451. The district court, while noting the untimeliness of

Redcrow's motion in its order, nevertheless ruled on the merits of

her motion because it was filed "within a reasonable period of

time" after the verdict and "because of the serious nature of the

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offense." RedCrOW, 790 P.2d at 452. Citing Best - I we acknowledged

the 30-day time limit imposed by the statute and noted that the

factors considered by the trial court did not require that it

entertain Redcrow's motion. Nonetheless, we addressed the merits

of Redcrow's claim because "of the extensive consideration of the

motion by the District Court." Redcrow, 790 P.2d at 452.

Similarly, in State v. Moore (1994), 268 Mont. 20, 885 P.2d

457, in an opinion written by the author of this opinion, we cited

Redcrow as precedent and followed its rationale -- i.e., motion

filed within a reasonable time after verdict; extensive

consideration of the out-of-time motion for new trial by the

district court; and seriousness of the case -- in reaching the

merits of Moore's motion for new trial, filed approximately two

months following his conviction of deliberate homicide. Moore, 885

P.2d at 464, 479, 480-81.

In Redcrow we improperly reached the merits of the defendant's

untimely motion for new trial notwithstanding that the trial court

gave "extensive consideration" to the motion. There are no

"reasonable time" or "serious case" exceptions to the 30-day filing

requirement under § 46-16-702, MCA, and, as we pointed out in both

Redcrow and Moore, those factors do not require the district court

to entertain an out-of-time motion for new trial. Redcrow, 790

P.2d at 452; Moore, 885 P.2d at 480-81; § 46-16-702, MCA.

Unfortunately, in Redcrow, by judicial fiat, we created those

exceptions from whole cloth for the purpose of reaching the merits.

Moreover, as pointed out above, lest was not properly cited as

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authority for an exception to the 30-day filing requirement because

the statement in that case supporting that argument was dicta, and

flawed dicta, at that. Finally, neither the problem addressed in

Perry nor that addressed in State v. Barrack (1994), 267 Mont. 154,

882 P.2d 1028, (discussed below), were at issue in Redcrow.

Likewise, Moore suffers from the same deficits, and we were

wrong to rely on Redcrow as precedent for reaching the merits of

the new trial issue. Moore's untimely motion for new trial should

have simply been denied on the basis of the procedural bar.

Finally, it is necessary to discuss our resolution of the outof-time motion for new trial issue in Barrack, the other decision

written by the author of this opinion. Like Perry, the

circumstances of that case are unique. Barrack, 882 P.2d at 1032.

In Barrack, the defendant was convicted of aggravated assault on

June 30, 1992, and his first motion for new trial was heard and

sentence was pronounced on August 5, 1992. Final judgment was

filed August 21, 1992. Barrack, 882 P.2d at 1030. Barrack filed

a second motion for new trial on August 26, 1992. Barrack, 882

P.2d at 1031. At a posttrial hearing on October 14, 1992, the

trial court determined to treat Barrack's out-of-time motion as a

petition for post-conviction relief under a writ of coram nobis

pursuant to § 46-21-101(l), MCA. Ultimately, after a hearing in

December 1992, the district court denied the defendant's motion

(petition) on the merits. Barrack, 882 P.2d at 1031.

Citing § 46-16-702, MCA, the State argued that Barrack's

motion was untimely and that it was improper for the trial court to

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treat the motion as one for post-conviction relief. We agreed.

Barrack, 882 P.2d at 1031-32. Nevertheless, we noted that Barrack

had a right to appeal his conviction and that his appeal time had

expired on October 21, 1992. Importantly, we concluded that the

trial court erred when, on October 14, 1992, it determined to treat

Barrack's untimely motion for new trial as one for post-conviction

relief, with the result that the court "may have effectively

curtailed any attempt Barrack may have made to appeal within the

remaining statutory time . . [And, thus1 possibly lulled the

defendant into a position where he did not timely pursue his appeal

rights. . . .'I Barrack, 882 P.2d at 1032.

It was for that reason only that we determined to address the

district court's decision on the merits of Barrack's untimely

motion. Notwithstanding, as we noted in concluding our analysis:

[Wle wish to emphasize, however, that our decision here

is not in any way to be read as enlarging the scope of

post-conviction relief oz as diminishing a defendant'&

obligation to timely file a motion for a new trial and a

petition for post-conviction relief or appeal in

accordance with the applicable statutes. [Emphasis

added.]

Barrack, 882 P.2d at 1032.

Given the above case analyses, we hold that neither Best - I

Redcrow nor Moore, should henceforth be cited as authority for the

proposition that either this Court or the district court may

entertain a motion for new trial not timely filed in accordance

with § 46-16-702, MCA. Furthermore, as to the new trial issue, we

remain convinced that Perrv and Barrack were correctly decided

given their unique facts and procedural circumstances, and we

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reaffirm our decisions in those cases. We leave those cases --

limited to their facts -- standing as two judicially created

exceptions to § 46-16-702, MCA, solely because the constitutional

due process implications in each transcend the otherwise clear and

unambiguous requirements of the statute.

With that frame of reference in mind, we hold that Gollehon's

motion for new trial, filed three and one-half years post-verdict,

is barred as being not timely filed and that neither the Perry nor

the Barrack exceptions are applicable in the instant case. Unlike

Barrack, Gollehon has had a direct appeal of his case, and he has

not been lulled into the waiver of any posttrial remedy through

error of the trial court. Unlike Perry, Gollehon has the vehicle

to raise his post-verdict claims through a petition for postconviction relief. He may still timely file such a petition under

§ 46-21-101, MCA; to date, he has simply chosen not to do so.

Accordingly, while we affirm the District Court's denial of

Gollehon's motion for new trial as being time-barred, we decline to

address the merits of the defe

context of his untimely new tri

We Concur

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November 30, 1995

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the

following named:

Michael Donahoe (ha.nd -)

Assistant Federal Defender

Box 258

Helena MT 59624-0258

Hon. Joseph P. Mazurek, Attorney General

Jennifer Anders, Pamela Collins, Assistants

215 N. Sanders

Helena MT 59620

Christopher Miller

Powell County Attorney

409 Missouri Avenue

Deer Lodge MT 59122

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA