K. Franks v. State ( 2023 )

04/11/2023
DA 22-0575
Case Number: DA 22-0575
IN THE SUPREME COURT OF THE STATE OF MONTANA
2023 MT 65NKELLY FRANK,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Ninth Judicial District,
In and For the County of Teton, Cause No. DC 05-007
Honorable Robert G. Olson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Kelly Frank, Self-Represented, Helena, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Bjorn Boyer, Assistant
Attorney General, Helena, Montana
Joe W. Coble, Teton County Attorney, Choteau, Montana
Submitted on Briefs: March 8, 2023
Decided: April 11, 2023
Filed:
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__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), 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 Kelly Frank (Frank) appeals from an Order Denying Motion in the Nature of Writ
of Error Coram Nobis issued by the Ninth Judicial District Court on September 14, 2022.
We affirm.
¶3 On March 21, 2005, an Information was filed in the District Court charging Frank
with single counts of the following offenses: Solicitation, in violation of § 45-4-101, MCA
(2003); Theft, in violation of § 45-6-301(2), MCA (2003); and, Obstructing a Peace
Officer, in violation of § 45-7-302, MCA (2003). On April 15, 2005, an Amended
Information was filed charging Frank with the following offenses: two counts of
Solicitation, in violation of § 45-4-101, MCA (2003); one count of Theft of Property by
Embezzlement, in violation of § 45-6-301(7), MCA (2003); and, one count of Obstructing
a Peace Officer, in violation of § 45-7-302, MCA (2003). On July 11, 2005, an Information
was filed charging Frank with a single count of Felony Possession of Wildlife, in violation
of §§ 87-3-118 and 87-1-115, MCA (2003).
¶4 On July 11, 2005, a plea agreement was filed with the District Court in which Frank
agreed to plead guilty to Theft of Property by Embezzlement, Obstruction of a Peace
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Officer, and Felony Possession of Wildlife. On the same day, Frank appeared with his
counsel of record and changed his plea in accordance with the plea agreement. The State
dismissed the two counts of Solicitation as part of that agreement.
¶5 On September 14, 2005, the District Court sentenced Frank to a ten-year
commitment in the Montana State Prison for Theft of Property by Embezzlement, to a
six-month commitment in the Teton County Jail for Obstructing a Peace Officer—to run
concurrently with the sentence for Theft of Property Embezzlement, and to a five-year
commitment in the Montana State Prison for Felony Possession of Wildlife—to run
concurrently with Frank’s two other commitments. Frank did not appeal this sentence.
¶6 On August 17, 2022, Frank filed a Motion in the Nature of Writ Error Coram Nobis
Including Brief (Motion) in the District Court. The court declined to hold a hearing.
¶7 On September 14, 2022, the District Court issued an Order Denying Motion in the
Nature of Writ of Error of Coram Nobis. The court considered the Motion as a petition for
postconviction relief, pursuant to § 46-21-102, MCA, because Montana courts have not
considered petitions for coram nobis since October 1, 2011. Petitions for postconviction
relief must be filed within a year of the date a conviction becomes final. Section 46-21-102,
MCA. Frank’s petition was filed nearly seventeen years after his conviction was made
final. The court consequently denied his petition as untimely.
¶8 The District Court did not find cause pursuant to the exceptions under
§ 46-21-102(2), MCA, to exempt Frank’s petition from the statutory deadline. The court
reasoned that Frank did not assert any allegations nor cite any facts to justify such an
exception. The court also pointed out that while under oath Frank admitted his guilt to
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Theft of Property Embezzlement in open court and that Frank agreed to a beneficial plea
agreement that confirmed his guilty plea.
¶9 We review a district court’s denial of postconviction relief to determine if the court’s
findings of fact are clearly erroneous, and if its conclusions of law are correct. Kenfield v.
State, 2016 MT 197, ¶ 7, 384 Mont. 322, 377 P.3d 1207.
¶10 A writ of coram nobis is not available as a remedy for postconviction relief. State
v. Barrack, 267 Mont. 154, 159, 882 P.2d 1028, 1031 (1994). The writ of coram nobis was
incorporated into § 46-21-101(1), MCA, which details petitions for postconviction relief,
in 1997. 1997 Mont. Laws ch. 378, § 3. This Court abolished the writ of coram nobis,
effective October 1, 2011, upon revising the Montana Rules of Civil Procedure.
¶11 The District Court conducted a thorough analysis of the applicable laws and
correctly concluded that Frank’s petition was time-barred pursuant to § 46-21-102, MCA.
¶12 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review.
¶13 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ INGRID GUSTAFSON
/S/ JIM RICE
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