DA 11 - 0625 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 20 12MT 183N GORDON SEES THE GROUND, JR., Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Appellee.
APPEAL FROM: Dis trict Court of the Thirteenth Judicial District,

In and For the County of Yellowstone, Cause No. DV 10 - 0763 Honorable Gregory R. Todd, Presiding Judge COUNSEL OF RECORD:

For Appellant: Gordon Sees The Ground, Jr. (self - represented litigant); Shelby, Mo ntana For Appellee : Steve Bullock, Montana Attorney General; Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana Scott Twito, Yellowstone County Attorney, Billings, Montana Submitted on Briefs: August 1, 2012 Decided: Aug

ust 21, 2012 Filed:

__________________________________________ Clerk August 21 20122

Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d ) , Montana Supreme CourtI nternal Ope rating Rules, this case is decided by memorandum opinion andshall 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 Gordon Sees The Ground , Jr. appeals from the District Court’s Order dated August 18, 2011 denying his petition for postconviction relief. We affirm. ¶3 In 2008 , Sees The Ground was convicted of felony DUI af ter Billings police officers found him slumped over the steering whe el of a car with the ig nition key in the on position , the headlights on, and parked partially in the traffic lane . Sees The Ground appealed the conviction and this Court affirmed. State v. Sees TheGround , 2009 MT 375N ( table) . Sees The Ground was subse quently charged with and convicted of perjury based upon the tes timony he gave at his DUI trial. Sees The Ground testified at the DUI trial that Orrie Plainbull had driven the car to the location where Sees The Ground was later f ound behind the wheel. Th is was perjury b ecause Plainbull was in the hospital being treated for injuries suffered in a fall during the time Sees The Groundc laims Plainbull was driving him around Billings. Sees The Ground appealed the perjury conviction but the appeal was withdrawn. ¶4 Sees The Ground claimed in his postconviction relief petition filed in District Courtthat the prosecution in his DUI trial withheld material information about a witness3

named Gregory Wood , who called 911 to report Sees The Ground slumped over in the v ehicle . Sees The Ground claims that the prosecution withheld information that Wood also witnessed two men in a car and saw the passenger get out, fall on the sidewalk, and injure himself while the vehicle drove away. The injured manp roved to be Orrie Pl ainbull, and t

he v ehicle that drove away was the one in which police later found Sees The Ground slumped over the steering wheel. ¶5 The District Courtf ound in this case that Sees The Ground had the transcript of Wood’s 911 call a

nd that a defense investig ator had interviewed Wood. The District Court concluded that Sees The Ground had not established thatthe prosecution withheld any material information concerning witness Wood and we find no reason to disturb that conclusion. Sees The Ground and his atto rney knew about Wood prior to trial and Wood testified at trial. These claims could have been raised on direct appeal but they were not and so are barred by § 46 - 21 - 105(2), MCA (issues which were or could reasonably have been raised on direct appeal may n ot be raised or considered in a petition for postconviction relief). ¶6 Sees The Ground attempts to raise o ther i ssuesf or the first time on appeal, including allegations that he receivedineffective assistance of coun sel and that he would never have committe d perjury if he had known that the State had evidence that Plainbull could not have driven the car. W e decline to consider the se issuesbecause they were not presented to the District Court. State v. Johnson , 2008 MT 227, ¶ 26, 344 Mont. 313, 187 P.3d 662 .4

¶7 We hav

e determined to decide this case pursuant to Section 1, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable memorandum opinions. Having reviewed the briefs and the record on appeal we conclude that Sees The Ground has not met his burden of persuasion and that the District Court properly denied relief. ¶8 Affirmed. /S/ MIKE McGRATH We concur: /S/ JAMES C. NELSON /S/ PATRICIA COTTER /S/ BETH BAKER /S/ MICHAEL E WHEAT