State v. J. Franks ( 2020 )

ORIGINAL 12/15/2020
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 20-0581
OP 20-0581
JASON DEAN FRANKS,
FILED
DEC 1 5 2020
Petitioner, CI Bowen
erk of Greenwood
Supreme Court
State of
Montana
v.
ORDER
ELEVENTH JUDICIAL DISTRICT
COURT,HEIDI J. ULBRICHT,and
STATE OF MONTANA,
Respondents.
Representing himself, Jason Dean Franks has filed a Petition for a Writ of
Mandamus over the Eleventh Judicial District Court, Flathead County, and the Honorable
Heidi J. Ulbricht. We correct the caption to reflect the imrties' alignment and to include
the District Court in this original proceeding. M. R. App.P. 14(3). Franks has served the
Clerk ofDistrict Court.
Franks contends that the District Court is committing plain error because it has not
ruled on his pending motions. Citing several cases, he concludes that the cumulative error
doctrine is appropriate in this case. Franks states that after filing his petition for
postconviction reliefin the District Court in September 2018 he has attempted "to get relief
unsuccessfully." He provides the background ofhis 2012 conviction. See State v. Franks,
2014 MT 273, 376 Mont. 431, 335 P.3d 725; State v. Franks, 2017 MT 225, 388 Mont.
486,402 P.3d 1190. He raises claims about the ineffectiveness ofhis counsel, alleging due
process violations, lack ofa fair trial, and lack ofcompetent counsel in his Petition. Franks
requests that this Court "enforce his rights to present this evidence through counsel and a
hearing in district court, or at least have a decision to be able to have access to this Court
for appeal."
To state a claim for mandamus, a party must show entitlement to the performance
of a clear legalftuty by the party against whom the writ is directed and the absence of a
plain, speedy, and adequate remedy at law. Section 27-26-102, MCA;Smith v. Missoula
Co., 1999 MT 330,¶ 28,297 Mont. 368, 992 P.2d 834. This type of proceeding, such as a
writ of mandate, must be commenced in accordance with Montana's statutes.
M.R. App.P. 14(2).
Franks has not waited two years for a decision. Upon review of his copy of the
register of actions, it has been five months since his last filing. Franks filed his petition for
postconviction relief on September 12, 2018, yet the briefing was not cornpleted until June
17, 2019, after the court's order establishing a briefing schedule. Moreover, Franks
requested an extension of time to file his reply brief in September 2019, which the court
granted. Since January 2020, Franks has filed several motions, including appointinent of
counsel, discoveryand reconsideration. His most recent filing occurred on July 24, 2020.
A time lapse of more than five months is not unreasonable for a district court to consider a
petition.
Franks has not stated a claim for mandamus. M.R. App.P. 14(5). Franks has filed
an unverified petition, in contradiction to § 27-26-201, MCA, and he has not presented a
clear legal duty for the District Court to act. Section 27-26-102, MCA;Smith, ¶ 28. No
exact time frames exist for when a district court shopld rule upon a petition. Pursuant to
§ 46-21-103, MCA,after docketing the petition, the clerk shall "bring the petition promptly
to the attention of the court." The District Court ieviewed his petition and established a
briefing schedule. Under Montana law, Franks is not entitled to a hearing or counsel in a
postconviction proceeding It is incumbent upon the district court's discretion to decide
such matters. Sections 46-21-201(1)(a), 46-8-104(1), MCA. Discovery procedures in a
postconviction proceeding are limited and require leave ofthe court. See § 46-21-201(4),
MCA. The reliefthat Franks pursues is of a discretionary not legal nature. Franks has not
demonstrated that he is entitled to the performance of a clear legal duty in his request for
resolution of his pending motions or his petition for postconviction relief.
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Section 27-26-102, MCA; Smith, ¶ 28. A writ of mandate therefore is not appropriate.
Accordingly,
IT IS ORDERED that Franks's Petition for a Writ of Mandamus is DENIED and
DISMISSED.
The Clerk of the Supreme Court is directed to provide a copy of this Order to the
Honorable Heidi J. Ulbricht, Eleventh Judicial District Court; to Peg Allison, Clerk of
District Court, Flathead County, under Cause No.DV-18-967(c);to counsel ofrecord; and
to Jason Dean Franks personally.
DATED this .8— day ofDecember,2020.
Chief Justice
Justices
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