Kent a K a Lindblom v. State , 2017 MT 193N ( 2017 )

08/08/2017
DA 17-0325
Case Number: DA 17-0325
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 193N
NICOLE LEANNE KENT, a/k/a
NICOLE LEANNE LINDBLOM,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis And Clark, Cause No. CDV-2017-299
Honorable Kathy Seeley, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Colin M. Stephens, Nick Kirby Brooke, Smith & Stephens, P.C.,
Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Ryan Aikin, Assistant
Attorney General, Helena, Montana
Leo Gallagher, Lewis and Clark County Attorney, Helena, Montana
Submitted on Briefs: July 12, 2017
Decided: July 12, 2017
Issued: August 8, 2017
Filed:
__________________________________________
Clerk
Justice Michael E Wheat delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), 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 Nicole Kent (Kent) appeals the Montana First Judicial District Court’s order
denying her petition for postconviction relief. We affirm.
¶3 Kent is a Canadian citizen who has lived in Helena, Montana, since childhood. In
May 2014 Kent was charged with multiple felony and misdemeanor drug-related criminal
violations. Pursuant to a plea agreement, Kent pled guilty to three of the felony charges:
possession of dangerous drugs, possession with intent to distribute, and child
endangerment. All remaining charges were dismissed. In November 2014 Kent was
sentenced to three concurrent, five-year commitments to the Department of Corrections
(DOC), with two years suspended, and transferred to the “Passages” chemical
dependency treatment facility in Billings. Either prior to, or shortly after, her sentencing
hearing, Kent was visited by an agent from Homeland Security who placed an
immigration detainer on her. After her transfer to Billings she was interviewed by
another federal agent regarding immigration. On January 11, 2017, Kent was paroled and
released into the custody of federal immigration authorities, and shortly thereafter she
was transferred to an immigration holding facility in Tacoma, Washington. In Tacoma,
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Kent met with an attorney who advised that one of the consequences of her guilty plea to
the felony drug distribution offense was mandatory deportation. Thereafter, on April 20,
2017, Kent filed a petition for postconviction relief on the grounds that her attorney, who
represented her during plea agreement and sentencing, was ineffective because he failed
to investigate and advise her of the immigration consequences of her guilty plea to a drug
distribution offense. The District Court denied the petition, without a hearing, on the
grounds that it was untimely and therefore procedurally barred. The court further
concluded that there was no basis for applying an equitable tolling exception to the time
bar.
¶4 Section 46-21-102(1), MCA, requires a petition for postconviction relief be filed
within one year of the date the conviction becomes final. There was and is no dispute
that Kent failed to file her petition within one year. Thus, the decisive issue for the
District Court, and now this Court, is whether the alleged ineffective assistance of
counsel claim triggered an “equitable tolling” of the statute until Kent learned for certain
that she was subject to mandatory deportation. The District Court summarized its reasons
for rejecting Kent’s claim of equitable tolling as follows:
[T]he threshold consideration here is not whether Kent’s counsel was
ineffective. Rather, the issue is whether her claim of ineffective assistance
is procedurally barred. . . . [T]he circumstances in the instant case do not
warrant a tolling of the time bar. Kent knew early on that there may be
immigration consequences resulting from a criminal conviction. She
repeatedly informed her attorney that she was concerned that a felony
conviction would impact her immigration and residency status. She states
also that she rejected one plea offer, fearing that a felony conviction would
result in deportation. Further, she was visited by a Homeland Security
agent in October 2014 who told her he was placing an immigration detainer
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on her and informed her she would have to appear before an immigration
judge following completion of her sentence.
Thus, Kent knew of the immigration detainer in October 2014.
Further, she recites meetings and communications from ICE in late 2014.
Nonetheless, she raised no ineffective assistance claim until the instant case
was filed in April 2017. . . . [S]he provides no adequate explanation for the
years of delay in filing her petition for postconviction relief.
The [c]ourt concludes that application of the time bar in this case
does not work a clear miscarriage of justice so obvious that it compromises
the integrity of the judicial process. (Citation omitted.)
¶5 We review a district court’s denial of a petition for postconviction relief to
determine whether the court’s findings of fact are clearly erroneous and whether its
conclusions of law are incorrect. Marble v. State, 2015 MT 242, ¶ 13, 380 Mont. 366,
355 P.3d 742. We review de novo a district court’s decision not to apply the doctrine of
equitable tolling as it relates to a petition for postconviction relief. Davis v. State, 2008
MT 226, ¶ 10, 344 Mont. 300, 187 P.3d 654.
¶6 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, the case presents a question controlled by settled law or by the clear
application of applicable standards of review, all of which were appropriately and
correctly applied by the District Court.
¶7 Affirmed.
/S/ MICHAEL E WHEAT
We Concur:
/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ JIM RICE
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