William Parrish v. State , 2012 MT 160N ( 2012 )

July 24 2012
DA 12-0093
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 160N
WILLIAM PARRISH,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and For the County of Rosebud, Cause No. DV 11-53
Honorable Joe L. Hegel, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
William A. Parrish (self-represented litigant); Shelby, Montana
For Appellee:
Steve Bullock, Montana Attorney General; Katie F. Schulz,
Assistant Attorney General, Helena, Montana
Michael B. Hayworth, Rosebud County Attorney, Forsyth, Montana
Submitted on Briefs: June 19, 2012
Decided: July 24, 2012
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), 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 William Parrish appeals from the District Court’s decision entered January 18,
2012, denying his petition for postconviction relief. We affirm.
¶3 In 2008 Parrish was convicted of criminal endangerment, and this Court affirmed
the conviction on direct appeal. State v. Parrish, 2010 MT 212, 357 Mont. 477, 241 P.3d
1041. In October, 2011 Parrish filed a petition for postconviction relief. Parrish
contended that he was sentenced based upon erroneous information about his prior
criminal record, and that the erroneous information was submitted by the County
Attorney because of anger toward Parrish.
¶4 The District Court denied Parrish’s petition under § 46-21-105(2), MCA, which
provides that grounds for relief may not be raised in postconviction relief if those grounds
were or could reasonably have been raised on direct appeal. State v. Adgerson, 2007 MT
336, ¶ 11, 340 Mont. 242, 174 P.3d 475; Herman v. State, 2006 MT 7, ¶ 55, 330 Mont.
267, 127 P.3d 422. The issue of the accuracy of Parrish’s prior criminal history was
raised by his attorney at the time of sentencing and was considered by the District Court
at that time. Since that issue was known and could have been raised in the direct appeal
in 2010, it may not be raised in this postconviction relief proceeding.
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¶5 Parrish claims, for the first time on appeal, that his appellate attorney rendered
ineffective assistance by failing to raise the issue of erroneous sentencing information in
his direct appeal in 2010. This Court will not consider issues raised for the first time on
appeal. Ellenburg v. Chase, 2004 MT 66, ¶ 15, 320 Mont. 315, 87 P.3d 473. In any
event, the facts of Parrish’s sentencing belie his claim of sentencing error. At sentencing
his attorney presented written objections to the accuracy of the criminal history contained
in the presentence investigation, cross-examined the author of the report, and fully
advised the District Court on Parrish’s position. Parish presents no evidence that his
sentence was based in any material way on the precise number of prior felony convictions
he had, and therefore has not made any showing that the issue would have garnered him
any material relief if it had been raised on direct appeal.
¶6 We have determined to decide this case pursuant to Section 1, Paragraph 3(d) of
our Internal Operating Rules, which provides for noncitable memorandum opinions. The
issues in this case are legal and are controlled by settled Montana law, which the District
Court correctly interpreted.
¶7 Affirmed.
/S/ MIKE McGRATH
We concur:
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
/S/ MICHAEL E WHEAT
/S/ JIM RICE
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