DA 11 - 0345 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 20 12MT 92N LEWIS GALE THORP, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Appellee.
APPEAL FROM: District Court of the Sixteenth Judicial District,

In and For the County of Custer, Cause No. DV 2011 - 17 Honorable Gary L. Day, Presiding Judge COUNSEL OF RECORD:

For Appellant: Lewis Gale Thorp, (self

- represented litigant); Shelby, Montana For Appellee : Steve Bullock, Montana Attorney General; Matthew T. Cochenour, Assistant Attorney General, Helena, Montana Wyatt Glade, Custer County Attorney, Miles City, Montana Submitted on Briefs: March 21, 2012 Decided: April 24, 2012 Filed:

__________________________________________ Clerk April 24 20122

Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this 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 Pacif ic Reporter and Montana Reports . ¶2 In January 2009 , Louis Gale Thorp (Thorp) was c onvicted by jury of one count of sexual intercourse without consent in the Sixteenth Judicial District Court, Custer County , for the rape of af ifteen - year - old girl . The District Court sentenced Thorp to life in the Montana State Prison without the possib ility of parole. On February 6, 2009, Thorp filed a motion for a new trial pursuant to § 46 - 16 - 702, MCA, arguing that the State improperly vouchedf

or the victim ’ sc redibility. He also arg uedthat the court used an improper jury

instruction for “ without consent ” and improperly admitted other acts ev idence. The District Court denie d Thorp ’ s motion, and this Court affirmed . State v. Thorp , 2010 MT 92, 356 Mont. 150, 231 P.3d 1096 (hereinafter Thorp I ) . ¶3 In Thorp I

, we held that the witnessl aw enforcemen t officer’s response that the victim’s story “seemed credible” didn ot warrant plain error review . Thorp I , ¶ 25. Rather, ac autionary instructionwassufficient under the circumstances to remedy any alleged infringement on Thorp ’ s right to a fair trial. ThorpI , ¶¶ 29 - 30. It was not an abuse of discretion to allow testimony regarding Thorp ’ s admission of an alleged oral sex act on him by the victim, because Thorp ’ s own counsel participated in the line of3

questioning that ga ve rise to the unexpected testimony. ThorpI , ¶ 40. F inally, we held that the court’s jury instructions fully and fairly instructed the jury, and that Thorp ’ s sentence fell within the statutory guidelines for his offense. ThorpI , ¶ ¶ 37, 43. ¶4 Thorp then filed for post - conviction r elief , a lleging ineffective assistance of counsel (IAC) , that the State had impermissibly vouched for the victim ’ s credibility, and that the testimony reg

arding oral sex constitutedmaterial ev idenceim properly withheld by the prosecution . On April 21, 20 11, t heD istrict Court denied Thorp ’ s petition, concluding that all claims had either been addressed on appeal or were record based and should have been raised on direct appeal. The District Court later denied another motion to reinstate the petition , fin ding that Thorp was simply rearguing issues that had been decided. He n ow appeals from the order so f the District Courta lleging several constitutional violations in addition to re - raising the issues that he did in his petition for post - conviction relief. ¶5 Thorp makes a sing le alleg ation in support of his IAC claim . He alleg es that his attorneys did not believe in his innocence as evidenced by statements they made to prosecutors that two State’s witnesses could be incriminating themselves based upon the ir proposed testimony. The District Court found that these claims were record based and should have been brought on direct appeal. We agree. When a petitioner has been afforded the opportunity for a direct appeal of a conviction, grounds for relief thatwere or could reasonably have been raised on direct appeal may not be raised in a petition for post - conviction relief. S ection 46 - 21 - 105 (2), MCA; see also Ellenburg v. Chase , 2004 MT 66, ¶ 19, 320 Mont. 315, 87 P.3d 473.4

¶6 As for the claim that the Stateimpermissibly vouched for the credibility of the victim during trial, the District Court correctly determinedthat this argumentwas previously addressed on direct appeal . See Thorp I , ¶¶ 22 - 30. L ikewise, we also conclusively resolved the issue of wheth er the trial court impermissibly a dmittedo ther acts ev idence under M. R. Evid. 404(b) when it allowed witnessest o testifyr eg arding Thorp ’ s admission of alleged oral sex by the v ictim at some point during 2006. Thorp I , ¶ 40. Accordingly, these issues ma y not be raised in a petition for post - conviction relief . ¶7 In reference to the other acts evidence discussed above, Thorp makes the new allegation that he learned of this evidence for the first time on the second day of trial. H e alleges that this constitutes material evidence withheld by the State in violation of the principles set forth in Brady v. Maryland , 373 U .S. 83, 83 S. Ct. 1194 (1963). This arg ument is misplaced because the evidence in questionwas not suppressed

—it arose for the first time on the second day of trial during a line of questioning of prosecution witnesses in which Thorp’s counsel actively participated . Moreover, this testimony was unknown to the State before it surfacedat trial, thus making pretrial disclosure impossible. See T

horp I , ¶ ¶ 27 - 28. ¶8 Finally, Thorp makes the arg ument that several of his rig hts under the United State sConstitution andthe Montana State Constitutionwere violatedat trial . He makes no supporting arg

ument or allegations as to how these violations occ urred, but instead simply lists the provisions and alleges violations . We generally refuse to consider arg uments raised for the first time on appeal, let alone on second appeal. See e.g. City of Missoula v. Moore , 2011 MT 61, ¶ 13, 360 Mont. 22, 251 P.3d679. This includes new5

arg uments and changes in legal theory. State v. Ferguson , 2005 MT 343, ¶ 38, 330 Mont. 103, 126 P.3d 463 . Moreover, as we stated above, g rounds for relief that were or could reasonably have been raised on direct appeal may not b e raised in a petition for post - conviction relief. Section 46 -21 - 105(2), MCA. ¶9 We hav

e determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable memorandum opinions . The issues in th is case are legal and are controlled by settled Montana law, which the District Court correctly interpreted. ¶10 Affirmed. /S/ MIKE McGRATH We concur: /S/ PATRICIA COTTER /S/ JIM RICE /S/ BETH BAKER /S/ JAMES C. NELSON