DA 16-0470

IN THE SUPREME COURT OF THE STATE OF MONTANA

2017 MT 120N

ALLEN J. POTTER,

 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-16-342

Honorable John W. Larson, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Allen James Potter, Self-Represented, Shelby, Montana

For Appellee:

Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, 

Assistant Attorney General, Helena, Montana

Kirsten Pabst, Missoula County Attorney, Missoula, Montana

Submitted on Briefs: April 5, 2017

 Decided: May 23, 2017

Filed:

__________________________________________

Clerk

05/23/2017

Case Number: DA 16-0470
2

Justice James Jeremiah Shea 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 Allen J. Potter appeals an order of the Fourth Judicial District Court, Missoula 

County, dismissing Potter’s petition for postconviction relief for failure to state a claim 

for relief. We address whether the District Court erred by dismissing Potter’s petition. 

We affirm.

¶3 On August 24, 2006, Potter was convicted of felony aggravated assault, and was 

designated as a Persistent Felony Offender (PFO). After reviewing a presentence 

investigation report (PSI), the District Court sentenced Potter to twenty years without 

possibility of parole for the assault, and an additional fifty years with twenty suspended 

as a PFO. Following the sentencing, Potter filed his first petition for postconviction relief 

for ineffective assistance of counsel, but the case was dismissed for failure to state a 

claim. On March 15, 2013, Potter petitioned for a writ of habeas corpus in which he 

claimed the State incorrectly sentenced him by giving him a PFO sentence and a sentence 

for the aggravated assault to be served consecutively, rather than a single PFO sentence. 

The State conceded the argument, and we granted the writ and remanded the case for the 

sole purpose of correcting Potter’s sentence. On remand, the District Court held a 

resentencing hearing and imposed a seventy-year PFO sentence with twenty years 
3

suspended. On April 13, 2016, Potter filed a second petition for postconviction relief, 

again asserting ineffective assistance of counsel. Potter’s petition was denied, and he 

timely appealed.

¶4 We review petitions for postconviction relief to determine whether the district 

court’s findings of fact are clearly erroneous, and whether the district court’s conclusions 

of law are correct. State v. Evert, 2007 MT 30, ¶ 12, 336 Mont. 36, 152 P.3d 713.

¶5 Potter’s second petition for postconviction relief once again claims ineffective 

assistance of counsel, this time alleging his attorney failed to address how the relationship 

between Potter and the victim was relevant to the sentencing, and failed to call an expert 

witness to discuss how Potter’s relationship with the victim impacted his emotional state. 

The State argues Potter’s petition fails to state a claim for relief and that we should affirm 

the District Court’s dismissal of Potter’s petition. We agree. 

¶6 Petitions for postconviction relief must be based on something more than “mere 

conclusory allegations.” Kelly v. State, 2013 MT 21, ¶ 9, 368 Mont. 309, 300 P.3d 120. 

Section 46-21-104, MCA, details the requirements for a petition for postconviction relief: 

(1) The petition for postconviction relief must:

(a) identify the proceeding in which the petitioner was convicted, 

give the date of the rendition of the final judgment complained of, and 

clearly set forth the alleged violation or violations;

(b) identify any previous proceedings that the petitioner may have 

taken to secure relief from the conviction; and

(c) identify all facts supporting the grounds for relief set forth in the 

petition and have attached affidavits, records, or other evidence establishing 

the existence of those facts.

We have previously held that § 46-21-104(1)(c), MCA, “sets forth a specific list of items 

that must be a part of every petition for postconviction relief.” Nava v. State, 2011 MT 
4

77, ¶ 12, 360 Mont. 96, 255 P.3d 53 (quoting State v. Finley, 2002 MT 288, ¶ 13, 312 

Mont. 493, 59 P. 3d 1132) (emphasis in original). Failure to comport with the 

requirements of § 46-21-104, MCA, is grounds for dismissal without an evidentiary 

hearing. Herman v. State, 2006 MT 7, ¶ 15, 330 Mont. 267, 127 P.3d 422.

¶7 The District Court concluded Potter failed to state a claim for relief. Potter’s 

petition contained no attached affidavits, records, or other evidence establishing the 

existence of those facts that would support his allegations of ineffective assistance of 

counsel. As such, his petition was not in compliance with the necessary requirements set 

out in § 46-21-104, MCA, and therefore failed to state a claim for relief. Moreover, any 

attempt by Potter to resurrect his issues with the PSI falls well outside the scope of our 

remand. The District Court did not err in dismissing Potter’s postconviction petition.

¶8 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. The District Court’s findings of fact were 

not clearly erroneous and its interpretation and application of the law was correct. We 

affirm.

/S/ JAMES JEREMIAH SHEA

We Concur: 

/S/ MICHAEL E WHEAT

/S/ BETH BAKER

/S/ LAURIE McKINNON

/S/ JIM RICE