Scriver. v. State , 2012 MT 297N ( 2012 )

December 19 2012
DA 12-0366
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 297N
JAMES E. SCRIVER, JR.,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Ninth Judicial District,
In and For the County of Teton, Cause No. DDV 11-038
Honorable Dirk M. Sandefur, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
James E. Scriver, Jr. (self-represented); Deer Lodge, Montana
For Appellee:
Steve Bullock, Montana Attorney General; Mark W. Mattioli,
Assistant Attorney General, Helena, Montana
Joe Coble, Teton County Attorney, Choteau, Montana
Submitted on Briefs: October 24, 2012
Decided: December 19, 2012
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 James Scriver, Jr. appeals from the District Court’s Order Denying Petition for
Postconviction Relief, filed June 5, 2012. We reverse and remand.
PROCEDURAL AND FACTUAL BACKGROUND
¶3 In 1995 the State of Montana charged Scriver with sexual assault, a felony. He
was released from custody on the condition that he appear at all subsequent court
proceedings. He failed to do so and absconded for a period of years. In 2003 he
surrendered to authorities in Idaho. The Idaho authorities subsequently released him,
allegedly because Montana failed to timely extradite him. Six years later in 2009, Scriver
was arrested in Wyoming and returned to Montana to face the sexual assault charge.
Upon his return he was additionally charged with bail jumping for having absconded
from prosecution since 1995.
¶4 Scriver ultimately entered an agreement to plead guilty to sexual assault and bail
jumping. The District Court accepted Scriver’s plea and in September 2010 sentenced
him to 20 years at the Montana State Prison for sexual assault, restricting parole and good
time allowance, and designating him as a Tier 2 sex offender. The District Court
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sentenced Scriver to five years for bail jumping, to run consecutive to the sentence for
sexual assault.
¶5 Scriver did not appeal, but obtained sentence review, which left his sentence
unchanged. In August 2011, Scriver petitioned pro se for postconviction relief, claiming
that he was provided ineffective assistance of counsel prior to entering guilty pleas to
felony sexual assault and bail jumping. He claimed that his attorney failed to advise him
of his right to a speedy trial as it related to the charge of sexual assault and that his guilty
plea to that offense was therefore not voluntary.
¶6 The District Court reviewed the record in Scriver’s prior criminal proceeding,
including the written plea agreement, the acknowledgment of waiver of rights form, and
the transcript of the change of plea hearing. Based upon this review, the District Court
found that Scriver knowingly, voluntarily and intelligently entered the guilty pleas to
sexual assault and bail jumping. The District Court denied the petition for postconviction
relief and Scriver appeals.
STANDARD OF REVIEW
¶7 This Court reviews a district court’s decision on a petition for postconviction relief
to determine whether the findings of fact are clearly erroneous and whether the
conclusions of law are correct. Claims of ineffective assistance of counsel are reviewed
de novo. Robinson v. State, 2010 MT 108, ¶ 10, 356 Mont. 282, 232 P.3d 403.
DISCUSSION
¶8 A defendant who voluntarily enters a guilty plea waives all defenses and non-
jurisdictional defects that occurred in the prosecution of the case against him. State v.
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Pavey, 2010 MT 104, ¶ 11, 356 Mont. 248, 231 P.3d 1104; State v. Gordon, 1999 MT
169, ¶ 23, 295 Mont. 183, 983 P.2d 377. While a claim of violation of the right to a
speedy trial is a non-jurisdictional issue, Pavey, ¶ 11, a defendant may raise a challenge
that his guilty plea was not voluntary. Hardin v. State, 2006 MT 272, ¶ 23, 334 Mont.
204, 146 P.3d 746. The District Court construed Scriver’s petition as a challenge to the
voluntariness of his guilty plea and we do so as well.
¶9 Postconviction relief is a civil remedy available to persons who have been
adjudged guilty of a criminal offense, have no adequate remedy of appeal, and claim that
the sentence was imposed in violation of the Constitution of Montana or the United
States. Section 46-21-101(1), MCA. A petitioner for postconviction relief must file a
verified petition demonstrating by a preponderance of the evidence that he is entitled to
relief. State v. Cobell, 2004 MT 46, ¶ 12, 320 Mont. 122, 86 P.3d 20. A petitioner has
the burden to demonstrate to the District Court that his plea agreement was not voluntary,
Cobell, ¶ 12; Stevens v. State, 2007 MT 137, ¶ 11, 337 Mont. 400, 162 P.3d 82. A
postconviction relief proceeding is a proper forum for raising issues relating to ineffective
assistance of counsel that do not appear on the face of the record. State v. Weaver, 2001
MT 115, ¶ 14, 305 Mont. 315, 28 P.3d 451.
¶10 Speedy trial issues can arise when a person charged with an offense is absent from
the jurisdiction, and a detailed examination of the facts may be required. State v.
Robbins, 218 Mont. 107, 708 P.2d 227 (1985); State v. Longhorn, 2002 MT 135, 310
Mont. 172, 49 P.3d 48; State v. Lacey, 2010 MT 6, 355 Mont. 31, 224 P.3d 1247; State v.
Houghton, 2010 MT 145, 357 Mont. 9, 234 P.3d 904.
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¶11 This Court has limited ability to review the record in this case because Scriver
failed to transmit the record of his underlying criminal case for purposes of this appeal.
While it is an appellant’s burden to transmit a sufficient record to this Court on appeal,
M. R. App. P. 8(2). Scriver is an incarcerated person appearing pro se who could
reasonably have believed that the record of his underlying criminal case would be
transmitted to this Court with the appeal. Even if the record in the underlying criminal
case had been transmitted as part of this appeal, it is not clear whether it would have been
sufficient to determine whether Scriver’s guilty plea was voluntary in light of the
potential speedy trial issues.
¶12 We remand this case to the District Court for appointment of counsel, § 46-21-
201(2), MCA, to investigate Scriver’s claims and to determine whether to file an
amended petition for postconviction relief or to seek other appropriate relief.
/S/ MIKE McGRATH
We concur:
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ BRIAN MORRIS
/S/ JIM RICE
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