Sees the Ground v. State , 2012 MT 183N ( 2012 )

August 21 2012
DA 11-0625
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 183N
GORDON SEES THE GROUND, JR.,
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 10-0763
Honorable Gregory R. Todd, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Gordon Sees The Ground, Jr. (self-represented litigant); Shelby, Montana
For Appellee:
Steve Bullock, Montana Attorney General; Micheal S. Wellenstein,
Assistant Attorney General, Helena, Montana
Scott Twito, Yellowstone County Attorney, Billings, Montana
Submitted on Briefs: August 1, 2012
Decided: August 21, 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 Gordon Sees The Ground, Jr. appeals from the District Court’s Order dated
August 18, 2011 denying his petition for postconviction relief. We affirm.
¶3 In 2008, Sees The Ground was convicted of felony DUI after Billings police
officers found him slumped over the steering wheel of a car with the ignition key in the
on position, the headlights on, and parked partially in the traffic lane. Sees The Ground
appealed the conviction and this Court affirmed. State v. Sees The Ground, 2009 MT
375N (table). Sees The Ground was subsequently charged with and convicted of perjury
based upon the testimony he gave at his DUI trial. Sees The Ground testified at the DUI
trial that Orrie Plainbull had driven the car to the location where Sees The Ground was
later found behind the wheel. This was perjury because Plainbull was in the hospital
being treated for injuries suffered in a fall during the time Sees The Ground claims
Plainbull was driving him around Billings. Sees The Ground appealed the perjury
conviction but the appeal was withdrawn.
¶4 Sees The Ground claimed in his postconviction relief petition filed in District
Court that the prosecution in his DUI trial withheld material information about a witness
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named Gregory Wood, who called 911 to report Sees The Ground slumped over in the
vehicle. Sees The Ground claims that the prosecution withheld information that Wood
also witnessed two men in a car and saw the passenger get out, fall on the sidewalk, and
injure himself while the vehicle drove away. The injured man proved to be Orrie
Plainbull, and the vehicle that drove away was the one in which police later found Sees
The Ground slumped over the steering wheel.
¶5 The District Court found in this case that Sees The Ground had the transcript of
Wood’s 911 call and that a defense investigator had interviewed Wood. The District
Court concluded that Sees The Ground had not established that the prosecution withheld
any material information concerning witness Wood and we find no reason to disturb that
conclusion. Sees The Ground and his attorney knew about Wood prior to trial and Wood
testified at trial. These claims could have been raised on direct appeal but they were not
and so are barred by § 46-21-105(2), MCA (issues which were or could reasonably have
been raised on direct appeal may not be raised or considered in a petition for
postconviction relief).
¶6 Sees The Ground attempts to raise other issues for the first time on appeal,
including allegations that he received ineffective assistance of counsel and that he would
never have committed perjury if he had known that the State had evidence that Plainbull
could not have driven the car. We decline to consider these issues because they were not
presented to the District Court. State v. Johnson, 2008 MT 227, ¶ 26, 344 Mont. 313,
187 P.3d 662.
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¶7 We have determined to decide this case pursuant to Section 1, 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 Sees The Ground
has not met his burden of persuasion and that the District Court properly denied relief.
¶8 Affirmed.
/S/ MIKE McGRATH
We concur:
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
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