State v. Anthony Roberty , 2011 MT 53N ( 2011 )

March 22 2011
DA 10-0516
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 53N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
ANTHONY DANE ROBERTY,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DC 08-42A
Honorable Holly Brown, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Anthony Dane Roberty (Self-Represented), Shelby, Montana
For Appellee:
Steve Bullock, Montana Attorney General, Mark W. Mattioli, Appellate
Services Bureau Chief, Helena, Montana
Marty Lambert, Gallatin County Attorney, Eric Fitzmiller, Deputy
Gallatin County Attorney, Bozeman, Montana
Submitted on Briefs: February 23, 2011
Decided: March 22, 2011
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter 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 Anthony Dane Roberty (Roberty) appeals the order of the Eighteenth Judicial
District Court, Gallatin County, denying his August 2010 motion to amend or correct his
June 2008 sentence for felony Driving Under the Influence (DUI). We affirm.
¶3 Roberty was sentenced on January 26, 2005, in Gallatin County District Court, in
three separate DUI convictions. He received three concurrent, ten-year sentences with
five years suspended on each offense. Roberty was paroled in 2006. In February 2008,
while still on parole, Roberty was charged with another felony DUI and driving with a
suspended or revoked license. Roberty pled guilty to both charges. In June 2008 the
District Court sentenced Roberty to the Department of Corrections for thirteen months,
followed immediately by a five-year suspended sentence to Montana State Prison. This
sentence was to run consecutive to the three 2005 sentences. On November 24, 2008, the
Sentencing Review Division affirmed Roberty’s June 2008 sentence. Roberty did not
appeal the convictions or sentence, nor did he file a timely petition for postconviction
relief.
¶4 In November 2009, Roberty filed a petition for writ of habeas corpus with this
Court, which we dismissed. Roberty v. State, OP 09-0613. He then filed a second habeas
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petition in Powell County, which was denied, appealed, and dismissed with prejudice by
this Court on December 8, 2010. Roberty v. State, DA 10-0220. In August 2010, which
was subsequent to the filing of Roberty’s second habeas petition, but before we issued
our decision, Roberty filed the instant motion to amend or correct his June 2008 sentence.
The District Court denied the motion and Roberty appealed. He raises four issues on
appeal; however, we conclude that all issues are either procedurally barred or time
barred.
¶5 Once a conviction is final, a defendant has sixty days to file a direct appeal to this
Court, M. R. App. P. 4(5)(b)(i), and one year to file a petition for postconviction relief.
Section 46-21-102(1), MCA. Additionally, claims which were, or could have been,
raised on direct appeal are procedurally barred. Sections 46-21-105(2) and 46-22-101(2),
MCA. Finally, as a general rule, this Court does not consider issues presented for the
first time on appeal. State v. Belanus, 2010 MT 204, ¶ 17, 357 Mont. 463, 240 P.3d 1021(internal citations omitted).
¶6 Of the issues Roberty raises on appeal, the only one raised in the District Court,
and therefore not procedurally barred, is whether the five-year suspended portion of his
sentence was to Montana State Prison or the Department of Corrections. This issue is,
however, time barred because Roberty failed to appeal the sentence and did not seek
postconviction relief within the time limits specified by law, namely within one year of
the final conviction. Roberty’s arguments in this appeal are, therefore, both procedurally
barred and time barred.
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¶7 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. The
issues in this case are legal and are controlled by settled Montana law, which the District
Court correctly interpreted.
¶8 Affirmed.
/S/ PATRICIA COTTER
We concur:
/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ BETH BAKER
/S/ BRIAN MORRIS
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