DA 11 - 0319 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 20 11 MT 305N MELVIN LEE GATLIN, JR., Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Appellee.

APPEAL FROM: District Court of the Fourth Judicial District,

In and For the County of Missoula, Cause No. DV 11 - 534 Honorable Karen S. Townsend, Presiding Judge COUNSEL OF RECORD:

For Appellant: Melvin Lee Gatlin, self

-represented; Shelby, Montana For Appellee : Steve Bu llock, Montana Attorney General; Mardell Ployhar, Assistant Attorney General; Helena, Montana Fred R. Van Valkenburg, Missoula County Attorney; Jason T. Marks, Deputy County Attorney; Missoula, Montana Submitted on Briefs: November 16, 2011

Decided: December 6, 2011 Filed:

__________________________________________ Clerk December 6 20112

Justice Jim Rice delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, th is case is decided by me morandum 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 Melvin Lee Gatlinappeals from the order entered by the Fourth Judicial District Court, Missoula County, denying hi s petition for post conviction relief , which challeng

ed his conviction upon g

uilty plea of two counts of robbery. Gatlin’s case was previously before thi s Court on appeal. State v. Gatlin , 2009 MT 348, 353 Mont. 163, 219 P.3d 874. ¶3 Gatlinwa s originally charged with robb ing two casinos in Missoula County and a grocery store in Butte - Silver Bow County in December of

2007 . Gatlin , ¶

¶ 5 - 7. He was arrested in Butte and detained in the Butte - Silver Bow County jail during the pendency of the Butte - Silver Bow County proceeding. Gatlin , ¶ 9. Charges were filed in Missoula County, but no f

urther action was taken until after Gatlinentered a no contest plea and was sentenced in Butte - Silver Bow County, when he was then transferred to Missoula County. Gatlin , ¶¶ 9 - 10. Gatlinf iled a motion to dismiss the Missoula County charges on the grounds that the Information had not been timely filed , and he had not been in formed of his right to counsel at his initial appearance. Gatlin , ¶ 12. After his motion was denied, Gatlin pled guilty to the Missoula County charges pursuant to a plea ag reement in which he reserved his right to appeal the denial of his motion to dismi ss.3

Gatlin , ¶ 14. This Court reversed his Missoula County convictions on the g round that Gatlin had not been advised of his rig ht to counsel at his initial appearance, and we instructed the District Court to dismis s the charges without prejudicebecauseGatlin had not been prejudiced by the delay. Gatlin , ¶¶ 23, 29. After remand, the Missoula County robbery charges were re - filed, and Gatlin thereafter entered guilty pleas to the charges. ¶4 Gatlin then filed a petition for post conviction relief, claiming ineffective assistance of counsel and failure of the prosecutor to disclose material evidence. The District Court denied the petition, and on appeal, Gatlin offers new arg uments, claiming that his two M issoula County robbery convictions violate his const itutional double jeopardy and equal protection rights. The State argues that Gatlin waived these claimsby pleading guilty to the charges, forfeited them by not raising them before the District Court, failed to establish grounds for plain error review, an d failed to sufficiently develop a leg al arg ument and basis for his claims. The State also contests the claims on their merits. ¶5 We hav

e determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides f or noncitable memorandum opinions. Having reviewedthe briefs and the record on appeal, we conclude th at the appellant has not methis burden of persuasion or demonstrated reversible error. ¶6 Affirmed. /S/ JIM RICE4

We concur: /S/ BRIAN MORRIS /S/ PATRICIA COTTER /S/ BETH BAKER /S/ MICHAEL E WHEAT