DA 06-0331 IN THE SUPREME COURT OF THE STATE OF MONTANA 2007 MT 207

GEORGE HAROLD DAVIS, Petitioner and Appellant,

v. STATE OF MONTANA, Respondent and Respondent.

APPEAL FROM: District Court of the Fifth Judicial District, In and For the County of Madison, Cause No. DC-29-03-13 Honorable Loren Tucker, Presiding Judge

COUNSEL OF RECORD: For Appellant: William Boggs, Attorney at Law, Missoula, Montana For Respondent: Hon. Mike McGrath, Attorney General; Pamela P. Collins, Assistant Attorney Gene ral, Helena, Montana

Submitted on Briefs: January 24, 2007 Decided: August 21, 2007

Filed:

__________________________________________ ClerkChief Justice Karla M. Gray deli vered the Opinion of the Court.

¶1 George Harold Davis (Davis) appeals from the order of th e Fifth Judicial District Court, Madison County, denying his motion to reconsider the court’s earlier order denying his motion for appointmen t of counsel. We affirm. ¶2 The sole issue on appeal is whether the District Court erred in denying Davis’

motion to reconsider.

BACKGROUND ¶3 On March 29, 2004, Davis pl ed guilty to one count of deliberate homicide and six counts of attempted deliberat e homicide. The District C ourt sentenced Davis to life imprisonment in the Montana Stat e Prison without the possibility of parole on each of the seven counts, with the sentences to run conc urrently. The District Court entered its written judgment on the convictions and senten ces on September 9, 2004. Davis did not appeal from the judgment. ¶4 On September 27, 2005, Davis, acting on his own behalf, moved the District Court to appoint him counsel “for th e purpose of seeking post-conviction relief . . . .” The District Court denied the motion for appointm ent of counsel on December 2, 2005. On March 2, 2006, Davis—acting through counsel appointed to represent him in a separate proceeding in Missoula County —moved the District Court to vacate its December of 2005 order denying his request for counsel, reconsider his request for appointment of counsel to pursue postconvic tion proceedings and declare the statute of limitations governing the filing of postconv iction relief petitions equitably tolled as of September 27,

22005, the date on which he filed his origin al motion for appointment of counsel. The District Court denied this motion, concluding Davis had failed to establish that the court’s prior order denying his request for coun sel was erroneous. Davis appeals. STANDARD OF REVIEW ¶5 In appealing from the District Court’s order denying his motion to vacate the court’s prior order concerning de nial of appointment of coun sel, Davis challenges various of the District Court’s conclusions of law, including its interpretation and application of

several statutes. We review a district cour t’s conclusions of law to determine whether

those conclusions are correct. State v. Brockway , 2005 MT 179, ¶ 8, 328 Mont. 5, ¶ 8, 116 P.3d 788, ¶ 8. DISCUSSION ¶6 Did the District Court err in denying Davis’ motion to reconsider? ¶7 Davis appeals from the District Court’s or der denying his moti on that the court reconsider its December 2, 2005, order denying Davis’ motion for appointment of counsel to pursue postconviction relief. The District Court denied Davis’ motion to

reconsider based on its conclusion that Davis failed to establish that the court’s rationale in denying his original motio n for appointment of counsel was incorrect. Thus, in reviewing whether the District Court erred in denying Davis’ motion to reconsider, we must review the District Court’s underlying determinations in its December of 2005 order denying appointment of counsel. ¶8 In its December 2, 2005, order, the Distri ct Court first determ ined that Davis was required to file any postconviction relief pe tition by September 7, 2005. Therefore, 3according to the court, by the time Davis f iled his motion for appo intment of counsel on September 27, 2005, the time in which to fi le for postconviction relief had expired and “[a]bsent an opportunity to apply for post conviction relief, there is no merit in appointing counsel.” Davis cont ends that the District Court erred in determining that the time in which to file a postc onviction relief petiti on expired on September 7, 2005, and

we agree. ¶9 A petition for postconviction relief may be f iled at any time within one year of the

date on which a defendant’s conviction beco mes final. Section 46-21-102(1), MCA. Where a defendant does not ap peal from his or her convic tion, the conviction becomes

final when the time for such an appeal to this Court expire s. Section 46-21-102(1)(a), MCA. The time for appeal to this Court e xpires 60 days from th e date of entry of judgment. M. R. App. P. 5(b). The written judgment on Davis’ convictions and sentences in this case was filed on September 9, 2004; therefore, the time within which to appeal to this Court expired on November 8, 2004. Consequently, Davis had until November 8, 2005, in which to file for po stconviction relief. As a result, when Davis filed his motion for appointmen t of counsel on September 27, 2005, there were still 42 days left in which he could timely file for postconviction relief and the District Court’s conclusion to the contrary was erroneous. ¶10 The District Court, however, provided an alternative ra tionale for its refusal to appoint counsel in its 2005 order. The Distri ct Court determined it could appoint counsel only in the event Davis had requested re lief by filing a petition which appeared to demonstrate good cause and entitlement to postconviction re lief. The District Court 4further observed that Davis’ motion for ap pointment of counsel was not technically sufficient to constitute a postconviction re lief petition and Davis had filed no other document purporting to be a po stconviction relief petition. On that basis, the District Court concluded that it could not appoint co unsel for Davis under the circumstances. Again, Davis asserts error. ¶11 Davis concedes that his mo tion for appointment of co unsel did not constitute a petition for postconviction relie f and he filed no other doc ument which would constitute such a petition. He asserts, however, that th e District Court erred in concluding that Davis was required to file a petition prio r to being appointed counsel to pursue postconviction relief. He points out that, in his motion, he requested counsel be appointed pursuant to § 46-8-104, MCA, and that this statute does not require that a formal postconviction relief pe tition be filed before counse l may be appointed. Rather, according to Davis, the language of the stat ute clearly provides that counsel may be appointed at any time subsequent to a co nviction when a defenda nt is considering pursuing a postconviction action. On this point, however, we disagree. ¶12 Section 46-8-104, MCA, prov ides that a court of record may assign counsel “to defend any defendant, petitioner, or appellant in any postconvictio n criminal action or proceeding if [he] desires counsel and is unab le to employ counsel.” In construing this statute, we must apply the plain meaning of the words used by the Montana Legislature, without omitting or in serting language. See § 1-2-101, MCA. The statute clearly states that counsel may be assigned “ in any postconviction criminal ac tion or proceeding . . . .” The word “in” is defined, insofar as is applic able here, as “[d]uring the act or process of . 5. . .” American Heritage Dictionary 883 (4 th ed., Houghton Mifflin Co. 2000). Applying this definition, § 46-8-104, MC A, provides that counsel may be assigned during the act or process of “any postconviction cr iminal action or proceeding . . . .” Thus, contrary to Davis’ assertion, we conclude the plain language of this stat ute requires that an action or proceeding for postconviction relief be comm enced—in other words, that a proceeding exist—prior to consideration of a motion for appointed counsel in the proceeding. ¶13 The statute specifically addressing appo intment of counsel in postconviction proceedings also clearly indica tes the Legislature’s intent in this regard. Section 46-21- 201(2), MCA, provides that, “[i]f the death se ntence has not been imposed and a hearing is required or if the interests of justice requi re, the court shall order the office of the state public defender . . . to assign counsel fo r a petitioner [for postconviction relief] who qualifies for the assignment of counsel under Title 46, chapter 8, part 1 . . . .” Before a trial court can determine whether a hearing is required or the interests of justice require appointment of counsel, it must be presente d with a postconviction relief petition setting

forth the claims asserted and the facts and evidence supporting those claims. See § 46- 21-104, MCA. ¶14 We conclude that the District Court di d not err in determining that Davis was required to file a petition fo r postconviction relief before the court could consider his motion to appoint counsel in the postconviction proceeding , and in denying appointment

of counsel because Davis had not filed a vali d petition. We further conclude, therefore, that the District Court did not err in denying Davis’ motion to reconsider its December of

2005 order on that basis. 6¶15 Davis also argues that the District Court erred in denying his request to equitably toll the statute of limitations for filing a po stconviction relief petition as of September 27, 2005, the date on which he filed his motion for appointment of counsel. Davis first argues that “[a]s a reasonabl e lay person, Mr. Davis woul d have supposed he was not required—or even allowed—to do anything further about a petition, until the court ruled on his request for counsel.” He further c ontends that the District Court’s actions—in failing to rule on his motion for appointment of counsel until after the statute of limitations for filing for po stconviction relief had run, treating his motion as a postconviction relief petition and denying it on the basis it was not technically sufficient as such, and determining the statute of limita tions for postconviction relief had run at the time he filed his motion for appointment of co unsel—violated his right to procedural due process under Article II, Section 17 of th e Montana Constitution a nd requires equitable

relief. ¶16 We observe at the outset that the District Court did not indicate to Davis in any way that the time in which to file a post conviction relief petition would be tolled during the period in which it considered his motion for appointment of counsel, and Davis points to no other basis supp orting his assumption that he coul d wait for the District Court’s ruling before filing his petition. Although Davis filed a motion for appointment of counsel, he filed no other document meetin g the time and content requirements for a postconviction relief petition contained in §§ 46 -21-102 and -104, MCA. He simply took no action to preserve his ability to petition for postconviction relief.

7¶17 Furthermore, Davis did not argue in the Dist rict Court that an alleged violation of his constitutional procedural due process right required equitable tolli ng of the statute of limitations. We do not address new argument s and changes of legal theory on appeal because it is fundamentally unfa ir to fault a district court on an issue it was never given an opportunity to address. See, e.g., State v. Gomez , 2007 MT 111, ¶ 21, 337 Mont. 219, ¶ 21, 158 P.3d 442, ¶ 21; State v. Long , 2005 MT 130, ¶ 35, 327 Mont. 238, ¶ 35, 113 P.3d 290, ¶ 35. Consequently, we decline to address Da vis’ constitutional due process argument. ¶18 We hold that the District Court did not e rr in denying Davis’ motion to reconsider. ¶19 Affirmed.

/S/ KARLA M. GRAY

We concur: /S/ BRIAN MORRIS /S/ JOHN WARNER /S/ JIM RICE

Justice W. William Leaphart dissenting.

¶20 I dissent. There is merit to Davis’s argum ent that the statute of limitations should be equitably tolled under the ci rcumstances of this case. ¶21 As the Court notes, Davis had until Nove mber 8, 2005, to file a petition for postconviction relief. Some forty-two days prio r to that deadline, he filed a request for

8appointment of counsel. On December 2, 20 05, the District Court, erroneously believing

that Davis’s time to file had al ready expired, belatedly denied his request as untimely. As this Court notes, the District Court also ga ve an alternative rationale for denying the request—that is, it could only appoint counse l if Davis had filed a petition demonstrating entitlement to postconviction relief. In latching onto that procedural rationale, the Court is demanding a degree of sophistication beyond the ken of a pro se litigant. ¶22 Davis requested appointment of counsel so that counsel could prepare the appropriate postconviction pleadings for him. It would be counter-intuitive for Davis to realize, as this Court would require, that, even though his request for counsel was still pending, he had to take the initiative and f ile the very pleadings he wanted counsel to draft in the first instance. A reasonable person, lay or professional, would assume that if one’s motion for counsel is deficient or without merit, the court would say so in a timely

fashion so that one could then correct the defi ciency or file pro se within the applicable time period. Here, the court, by not acting in a timely fashion, lulle d Davis into thinking

that his motion for coun sel was still viable. ¶23 Notably, the reason the District Court did not rule on Davis’s motion before

November 2005 is that the c ourt mistakenly thought the statute of limitations had already expired. Curiously, this Court forgives the Di strict Court’s error and then faults Davis for not having previously argued e quitable tolling because “it is fundamentally unfair to fault a district court on an issue it was never given an opportunity to addr ess.” The question, however, is not whether the District Court has been treated fairly, bu t whether the system has been fair and equitable to the defendant. I suggest that it is fundamentally unfair to 9fault a lay person for not filing pro se when that person has a pending request for counsel for the purpose of preparing the very papers that the Court now sa ys should have been filed earlier. In effect, the court system is telling Davis, “Sorry fo r the delay in ruling on your motion for counsel; it is hereby denied. And by the way, it’s now too late for you to proceed without counse l.” Captain Yossarian is no doubt smiling.

/S/ W. WILLIAM LEAPHART

Justice Patricia Cotter and Justice James C. Nelson join in the dissenting opinion of Justice Leaphart.

/S/ JAMES C. NELSON /S/ PATRICIA COTTER

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