Gunderson v. State , 2013 MT 36N ( 2013 )

February 12 2013
DA 12-0376
IN THE SUPREME COURT OF THE STATE OF MONTANA
2013 MT 36N
DAVID GUNDERSON,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DV 10-2086
Honorable Gregory R. Todd, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
David Gunderson (Pro Se), Glendive, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant
Attorney General, Helena, Montana
Scott Twito, Yellowstone County Attorney, Ann-Marie McKittrick,
Deputy County Attorney, Billings, Montana
Submitted on Briefs: January 16, 2013
Decided: February 12, 2013
Filed:
__________________________________________
Clerk
Justice Laurie McKinnon 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 David Gunderson appeals from an order of the District Court for the Thirteenth
Judicial District, Yellowstone County, denying his pro se Petition for Postconviction
Relief. We affirm.
¶3 In 2008, a jury convicted Gunderson of burglary and attempted sexual intercourse
without consent. The District Court determined that Gunderson was a persistent felony
offender and sentenced him to 100 years in prison on the burglary charge and a
consecutive term of life in prison on the charge of attempted sexual intercourse without
consent, both to be served without the possibility of parole. In its written judgment, the
District Court imposed 51 conditions on Gunderson should he ever be released to the
community. This Court affirmed Gunderson’s conviction and sentence on direct appeal
with the exception of the District Court’s imposition of the 51 conditions. We remanded
that matter to the District Court to strike the conditions from Gunderson’s sentence. State
v. Gunderson, 2010 MT 166, 357 Mont. 142, 237 P.3d 74.
¶4 Gunderson filed his Petition for Postconviction Relief on December 14, 2010. The
District Court denied Gunderson’s petition stating that Gunderson had not satisfied the
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requirements of § 46-21-104(1)(c), MCA, “because he has failed to identify facts which
support his grounds for relief and he did not attach any affidavits, records or other
evidence to establish the existence of those facts.” The court also determined that many
of Gunderson’s claims for relief were barred by res judicata.
¶5 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our Internal Operating Rules, which provides for noncitable memorandum opinions.
Having reviewed the briefs and the record on appeal, we conclude that the issues in this
case are legal issues, and they are controlled by settled Montana law which the District
Court correctly interpreted.
¶6 Affirmed.
/S/ Laurie McKinnon
We Concur:
/S/ Mike McGrath
/S/ Beth Baker
/S/ Patricia Cotter
/S/ Michael E Wheat
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