No

No. 99-198

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 267N

JOSEPH C. MORRISON, JR., 

Petitioner and Appellant, 

v.

STATE OF MONTANA, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Sixteenth Judicial 

District, 

In and for the County of Rosebud, 

Honorable Gary L. Day, Judge Presiding.

COUNSEL OF RECORD:

For Appellant:

Joseph C. Morrison, Jr., Pro Se, Deer Lodge, Montana

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For Respondent:

Honorable Joseph P. Mazurek, Attorney General; Pamela P. 

Collins, Assistant Attorney General; Helena, Montana

Lee R. Kerr, County Attorney, Forsyth, Montana 

Submitted on Briefs: October 22, 1999

Decided: November 2, 1999

Filed:

__________________________________________

Clerk

Chief Justice J. A. Turnage delivered the Opinion of the Court. 

¶ Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal 

Operating Rules, the following decision shall not be cited as precedent but shall be 

filed as a public document with the Clerk of the Supreme Court and shall be 

reported by case title, Supreme Court cause number and result to the State Reporter 

Publishing Company and to West Group in the quarterly table of noncitable cases 

issued by this Court. 

¶ The Sixteenth Judicial District Court, Rosebud County, dismissed a petition for 

postconviction relief filed by Joseph C. Morrison, Jr., on procedural grounds. 

Morrison appeals. We affirm.

¶ The issue is whether the postconviction petition was properly denied.

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¶ Morrison pled guilty in January 1996 to misdemeanor assault and felony criminal 

endangerment. In October 1998, Morrison filed his pro se petition for postconviction 

relief. His petition asserted that he received ineffective assistance of counsel in his 

criminal defense and that the prosecution engaged in misconduct by failing to 

disclose evidence favorable to him. The District Court, after reading and reviewing 

the petition, determined that it addressed issues that were clear on the record and 

could have been addressed by direct appeal. The court dismissed the petition for 

postconviction relief based upon the procedural bar of § 46-21-105, MCA.

¶ Section 46-21-105, MCA, provides, in pertinent part:

(2) When a petitioner has been afforded the opportunity for a direct appeal of 

the petitioner's conviction, grounds for relief that were or could reasonably 

have been raised on direct appeal may not be raised, considered, or decided in 

a proceeding brought under this chapter.

Morrison's petition for postconviction relief alleged that his attorney rendered him 

ineffective assistance by insisting that he enter a guilty plea rather than go to trial, failing 

to follow up on his requests to obtain statements from potential character witnesses, failing 

to obtain unspecified information from the prosecution that would disclose evidence 

favorable to him, and failing to supply him with copies of motions and other court 

documents. The petition further avers that Morrison was informed by another inmate, prior 

to entering his guilty plea, that the victim of his crime may have had previous injuries 

which would explain his condition after Morrison's attack on him. This is the basis for 

Morrison's claims of prosecutorial failure to disclose evidence favorable to the defendant 

and prosecutorial misconduct.

¶ All of Morrison's claims relate to matters known to him before expiration of the 

time allowed for filing an appeal from his criminal conviction, sixty days after 

judgment was entered against him. See Rule 5(b), M.R.App.P. Morrison admits that 

he knew he had the right to appeal the judgment. He has also admitted, in his 

memorandum to the District Court in support of his petition for postconviction 

relief, that his retained counsel told him just prior to sentencing that in his 

professional judgment, an appeal would be a waste of time. Although Morrison now 

attempts to argue on appeal that his counsel told him he would file an appeal, he did 

not make that argument to the District Court. A petitioner may not alter or expand 

his argument on appeal; Morrison has therefore waived the argument that his 

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counsel told him he would file an appeal. See State v. Woods (1997), 283 Mont. 359, 

372, 942 P.2d 88, 96-97.

¶ Morrison did not take steps to have another attorney appointed to represent him 

on appeal or to file a notice of appeal pro se. As such, we conclude that Morrison 

waived his right to appeal, and all claims he reasonably could have raised on appeal 

are procedurally barred in postconviction proceedings.

¶ We affirm the judgment of the District Court.

/S/ J. A. TURNAGE

We concur:

/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

/S/ JIM REGNIER 

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