Bacon v. State , 2005 MT 206N ( 2005 )

No. 04-377
IN THE SUPREME COURT OF THE STATE OF MONTANA
2005 MT 206N
DAVID BACON,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Respondent.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and For the County of Ravalli, Cause No. DC 02–76
Honorable Jeffrey H. Langton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
David Bacon, Pro Se, Shelby, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Jennifer Anders,
Assistant Attorney General, Helena, Montana
George Corn, Ravalli County Attorney; T. Geoffrey Mahar,
Chief Deputy County Attorney, Hamilton, Montana
Submitted on Briefs: July 19, 2005
Decided: August 23, 2005
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be cited
as precedent. Its case title, Supreme Court cause number and disposition shall be included
in this Court’s quarterly list published in the Pacific Reporter and Montana Reports.
¶2 In November of 2003, David Bacon (Bacon) petitioned for postconviction relief in the
Twenty-First Judicial District Court, Ravalli County. Bacon requested the District Court
allow him to withdraw his guilty pleas entered in the underlying action because he received
ineffective assistance of counsel in that his retained counsel had a conflict of interest. The
District Court denied the petition on the basis that Bacon had failed to establish any facts
supporting his allegation that defense counsel had a conflict of interest. Bacon appeals from
the order denying his postconviction relief petition. We affirm.
¶3 On appeal, Bacon contends the District Court erred in denying his postconviction
relief petition because his counsel in the underlying proceeding was ineffective in failing to
request that Bacon undergo a psychiatric evaluation. He further asserts that a psychiatric
evaluation would have established his lack of mental capacity to understand his actions at
the time he committed the crimes or to enter voluntary and knowing guilty pleas. The State
of Montana (State) responds that we should decline to address Bacon’s arguments on appeal
because he failed to raise them in his petition in the District Court. We agree.
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¶4 We have determined to decide this case pursuant to Section 1, Paragraph 3(d) of our
1996 Internal Operating Rules, as amended in 2003, which provides for memorandum
opinions. It is manifest on the face of the briefs and the record that the appeal is without
merit. Postconviction claims not raised in the original or an amended petition in the district
court cannot be raised for the first time on appeal and, if raised, we will decline to address
them. State v. Garner, 2001 MT 222, ¶ 45, 306 Mont. 462, ¶ 45, 36 P.3d 346, ¶ 45.
Consequently, we decline to address Bacon’s argument regarding the psychiatric evaluation
because it is raised for the first time on appeal. We hold, therefore, that Bacon has failed to
establish error in the District Court’s denial of his postconviction relief petition.
¶5 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
/S/ PATRICIA O. COTTER
/S/ JIM RICE
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