?
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 Considerationof 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 raisedby Mr. Gollehon in his Petitions. Mr. Gollehon contends that the five year time period for filing apost conviction petitionas 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 46-21-101may 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'sright to carry out the death sentence during the fiveyearperiod within which a post conviction petition can be filed. He requests that this Court rule that Mr. Gollehon has an absolute right to consumeasmuch of the fiveyearperiod as he deems necessary inprefiling investigationand preparation of apost 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 fiveyear period. The State respondsby 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 statuteprovides: 46-19-103. Execution of death sentence. (1) In pronouncing the sentence of death, the court shall set the dateof execution whichmust not be lessthan 30days 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 dissolutionof the stay,the court inwhichthe defendant was previously sentenced shall,upon dissolution of the stay,set a newdate of execution fornot 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 dissolutionof 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 90days 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 specificallyappliesto 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'spetitions and briefs, itclearly appears that he has chosennot 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. Gollehonlsclaims,we conclude that the State doeshave a legitimate state interest at stake which justifiesthe resetting of an execution date as soon as a stay is dissolved, which of course requires capital defendants to file collateral claims, such aspost 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 '!maybe filedn at any time within fiveyears 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 90days from the date of hearing upon a dissolutionof the stayas tookplace 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 additionwritten notice shall be given.fi DATED this 

# 2

# 5 day of May, 1995.

Chief Justice