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IN THE SUPREME COURT OF THE STATE OF MONTANA 

NO. 95-250 

WILLIAM J. GOLLEHON, 

Relator, 

DISTRICT COURT OF THE THIRD 

JUDICIAL DISTRICT OF THE STATE 

OF MONTANA, IN AND FOR THE 

COUNTY OF POWELL, THE HONORABLE 

EDWARD P. McLEAN, Presiding, 

Respondent. 

William J. Gollehon, herein called ~r 

OPINION 

AND 

ORDER 

Application for Writ of Supervisory Control or Other Appropriate 

Writ, and also his Application for Stay of Death Sentence Pending 

Consideration of Application for Writ of Supervisory Control. The 

respondent, through the office of the Attorney General, has filed 

its response to the application for writ of supervisory control. 

The applications state that the execution of the death sentence is 

now scheduled for June 11, 1995, at Deer Lodge, Montana. 

Pursuant to the requirements of Rule 17, M.R.App.P., this 

Court accepts supervisory control and addresses the merits of the 

issues raised by Mr. Gollehon in his Petitions. 

Mr. Gollehon contends that the five year time period for 

filing a post conviction petition as contained in § 46-21-102, MCA, 

controls and overrides any time periods otherwise provided. That 

code section provides: 

46-21-102. When petition may be filed. A petition 

for the relief referred to in 46-21-101 may be filed at 

any time within 5 years of the date of the conviction. 

In substance Mr. Gollehon contends that the foregoing statute 

creates a liberty interest which is superior to the State's right 

to carry out the death sentence during the five year period within 

which a post conviction petition can be filed. He requests that 

this Court rule that Mr. Gollehon has an absolute right to consume 
as much of the five year period as he deems necessary in prefiling 

investigation and preparation of a post conviction relief petition 

so that the State should not be allowed to seek, nor the District 

Court to schedule, the execution of the death sentence during the 

five year period. 

The State responds by referring first to § 46-19-103(1), MCA, 

which addresses the duty of the District Court to reset an 

execution date once a stay of execution has expired or been 

dissolved. Such statute provides: 

46-19-103. Execution of death sentence. (1) In 

pronouncing the sentence of death, the court shall set 

the date of execution which must not be less than 30 days 

or more than 60 days from the date the sentence is 

pronounced. If execution has been stayed by any court 

and the date set for execution has passed prior to 

dissolution of the stay, the court in which the defendant 

was previously sentenced shall, upon dissolution of the 

stay, set a new date of execution for not less than 20 or 

more than 90 days from the day the date is set. The 

defendant is entitled to be present in court on the day 

the new date of execution is set. 

Under this statute, upon the dissolution of the stay, the District 

Court was statutorily mandated to set a new date of execution. 

There is no provision in the statutes which gives the District 

Court discretion to delay execution up to five years while the 

defendant contemplates or files a post conviction petition. In 

direct contradiction of that theory, the statute provides, "the 

court in which the defendant was previously sentenced shall, upon 

dissolution of the stay, set a new date of execution for not less 

than 20 or more than 90 days from the day the date is set." This 

is a clear statutory mandate to set an execution date within 90 

days of the date on which the new execution date is set. 

The State contends that the time frame for post conviction 

relief as set forth in § 46-21-102, MCA, must be considered in 

conjunction with § 46-19-103 (1) , MCA, which specifically applies to 

capital defendants and requires a new execution date every time a 

stay of execution is dissolved. We emphasize there is nothing 

about this process which prevents Mr. Gollehon from seeking post 

conviction relief. From Mr. Gollehon's petitions and briefs, it 
clearly appears that he has chosen not to file any post conviction 

relief petition up to this point in time. We conclude that a 

criminal defendant does not have a constitutional right to the 

collateral review which is present through State post conviction 

procedures. See Coleman v. Thompson (1991), 501 U.S. 722, 756. 

When considering Mr. Gollehonls claims, we conclude that the State 

does have a legitimate state interest at stake which justifies the 

resetting of an execution date as soon as a stay is dissolved, 

which of course requires capital defendants to file collateral 

claims, such as post conviction relief claims, without delay. Mr. 

Gollehon has chosen not to do so in this case to the date of these 

Applications. 

We conclude that 46-21-102, MCA, which provides that a 

petition for post conviction relief '!may be filedn at any time 

within five years of the date of conviction does not override the 

sentencing requirements of § 46-19-103, MCA, which require the 

setting of a new date of execution within 90 days from the date of 

hearing upon a dissolution of the stay as took place in the present 

case. Mr. Gollehon has failed to present statutory provisions 

supporting his argument and has also failed to present case 

authority which in any way supports his contention. 

We hold that the sentencing provisions of § 46-19-103, MCA, 

control and that the post conviction provisions of § 46-21-102, 

MCA, do not override the sentencing statute. As a result, we hold 

that the Petition for Supervisory Control is denied on the merits 

and the Petition for Stay of Death Sentence also is denied on the 

merits. 

Notice of this order shall be given by telephone to District 

Judge Edward P. McLean, to counsel for Mr. Gollehon and to the 

Attorney General for the State of Montana, and in addition written 

notice shall be given.fi 

DATED this 2 5 day of May, 1995. 

Chief Justice