Ellenburg v. State , 2014 MT 68N ( 2014 )

March 11 2014
DA 13-0450
IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 68N
MICHAEL ELLENBURG,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC 97-12940
Honorable John W. Larson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Michael Ellenburg (Self Represented), Deer Lodge, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Brenda K. Elias, Assistant
Attorney General, Helena, Montana
Fred R. Van Valkenburg, Missoula County Attorney, Missoula, Montana
Submitted on Briefs: February 19, 2014
Decided: March 11, 2014
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), 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 In 1999 Ellenburg was convicted of several felonies for theft and forgery after he
entered guilty pleas to those offenses. He reserved the right to appeal certain pre-trial
orders, and this Court affirmed the convictions. State v. Ellenburg, 2000 MT 232, 301
Mont. 289, 8 P.3d 801. Ellenburg served some prison time but was paroled in 2005. In
2006 the District Court revoked Ellenburg’s suspended sentences for parole violations
and returned him to prison. Ellenburg appealed the revocation of his parole to this Court,
but in September 2006, he expressly and in writing moved to dismiss the appeal, referred
to by this Court’s Cause Number DA 06-0378. In the motion to withdraw the appeal,
signed by both Ellenburg and his attorney, Ellenburg acknowledged that by dismissing
the appeal he was “forever giving up” the right to argue that the State failed to prove a
probation violation; to argue that any of his constitutional rights were violated; to argue
that the sentence was illegal; and to argue that the State had failed to comply with all
procedural requirements to revoke his probation.
¶3 Since his conviction in 1999 Ellenburg has initiated, filed or attempted numerous
legal claims in state and federal courts concerning his conviction or the revocation of his
probation. Many of these have been redundant and repetitive, and Ellenburg has
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attempted to litigate issues that have already been decided or that he waived long ago by
the passage of time. Ellenburg has also attempted to initiate new claims in the context of
the original criminal case that led to his 1999 conviction, such as by filing a petition for
declaratory relief in that case in October 2011.
¶4 The present matter is similar. Ellenburg seeks credit against his sentence for
certain periods of time served prior to the revocation of his probation in 2006. Ellenburg
could and should have raised that issue in his appeal of the revocation. However, he
chose to dismiss the appeal and to expressly identify the array of rights that he was
waiving by doing so. Ellenburg brought this issue to the District Court by a letter dated
November 12, 2012. The District Court issued an order dated November 20, 2012,
denying Ellenburg’s request as to the sentence credit issue and Ellenburg appealed that to
this Court. This Court affirmed the District Court, Ellenburg v. State, 2013 MT 226N.
¶5 The issue of whether Ellenburg is entitled to any more credit for time served has
been waived by his failure to appeal in 2006, and was specifically decided against him in
this Court’s decision in 2013. That issue cannot be litigated again. Ellenburg cannot
twice appeal from the same order of the District Court. The District Court’s order of
November 20, 2012, denying Ellenburg’s requested relief is again affirmed.
¶6 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our Internal Operating Rules, which provides for memorandum opinions. The issues in
this case are legal and are controlled by settled Montana law, which the District Court
correctly applied.
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¶7 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ MICHAEL E WHEAT
/S/ JIM RICE
/S/ BETH BAKER
/S/ PATRICIA COTTER
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