State v. A. Black Crow ( 2023 )

11/21/2023
DA 23-0090
Case Number: DA 23-0090
IN THE SUPREME COURT OF THE STATE OF MONTANA
2023 MT 221NSTATE OF MONTANA,
Plaintiff and Appellee,
v.
ALOYSIUS DENNIS BLACK CROW,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and For the County of Lake, Cause No. DC-96-63
Honorable Molly Owen, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Aloysius Dennis Black Crow, Self-Represented, Warm Springs,
Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Tammy K Plubell,
Assistant Attorney General, Helena, Montana
James Lapotka, Lake County Attorney, Polson, Montana
Submitted on Briefs: September 20, 2023
Decided: November 21, 2023
Filed:
ir,-6L-.--if
__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, we decide this case by memorandum opinion. It 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 Aloysius Dennis Black Crow appeals the ruling of the Twentieth Judicial District
Court, Lake County, denying his petition for postconviction relief. We affirm the District
Court’s dismissal of Black Crow’s petition. We address separately Black Crow’s claim of
an illegal sentence and remand to the District Court to strike the ten-year weapon
enhancement.
¶3 A jury convicted Black Crow of robbery and aggravated burglary in 1997. On
October 29, 1997, the District Court sentenced him to the Montana State Prison for
consecutive forty-year terms for each conviction, and it imposed an additional ten-year
consecutive sentence for the use of a weapon. Black Crow appealed, arguing that the
District Court erred in denying his motion for a directed verdict of acquittal for insufficient
evidence and that the State presented insufficient evidence to convict him of the offenses.
State v. Black Crow, 1999 MT 44, ¶¶ 19, 31, 293 Mont. 374, 975 P.2d 1253 (Black Crow
I). We affirmed. Black Crow I, ¶ 34.
¶4 Black Crow filed a petition for postconviction relief on February 25, 2000. The
District Court appointed Black Crow counsel. The State moved to dismiss the petition.
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The District Court entered an order denying Black Crow’s petition for postconviction
relief. Black Crow appealed, arguing for the first time on appeal that he was denied his
constitutional right to effective assistance of counsel when his trial counsel did not offer
jury instructions on accomplice testimony. State v. Black Crow, 2003 MT 41N, ¶ 3 (Black
Crow II). We affirmed, holding that he did not raise the issue below. Black Crow II, ¶ 6.
¶5 Black Crow filed a motion for new trial in 2021, which the District Court denied.
On October 20, 2021, Black Crow filed a second petition for postconviction relief. In sum,
Black Crow argued his trial counsel was ineffective, his right to a speedy trial was violated,
he suffered from a developmental disability, and tribal officers lacked jurisdiction to handle
any facet of his case. The District Court denied the petition as untimely, concluding that
Black Crow’s grounds for relief were based on legal arguments that were either known or
discoverable twenty years prior. The court found that Black Crow offered no newly
discovered evidence that could overcome his petition’s untimeliness.
¶6 On December 5, 2022, Black Crow filed a third petition for postconviction relief in
the District Court. Black Crow argued that despite the untimeliness of his petition and that
this was a successive petition, it was still appropriate for the District Court to consider the
merits of his ineffective assistance of counsel claims under the actual innocence
fundamental miscarriage of justice exception explained in Schlup v. Delo, 513 U.S. 298,
115 S. Ct. 851 (1995). He again asserted that his speedy trial rights were violated and that
he has a developmental disability from a brain injury caused by his pre-term birth.
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¶7 The court denied Black Crow’s petition as an impermissible successive petition and
untimely. The Court reasoned:
[The petition] is not saved by MCA § 46-21-102(2), which allows filing
within one year of newly-discovered evidence. To fit within that saving
statute, Defendant must show the petition was filed within one year of
discovery of new evidence or one year of the time the evidence “reasonably
should have been discovered.” This Petition is mainly based on legal
arguments which were known or discoverable twenty years ago. Defendant
lists these issues as:
1. There is evidence that creates doubt about his guilt (although he provides no
evidence);
2. Developmental disability; and
3. Ineffective assistance of counsel.
These do not qualify as “newly discovered evidence,” or even evidence,
and these defenses or arguments were known at [the] time of the previous
petitions, or reasonably discoverable.
¶8 This Court reviews a district court’s denial of a postconviction petition to determine
if its findings of fact are clearly erroneous and if its conclusions of law are correct. State
v. Whitehorn, 2002 MT 54, ¶ 12, 309 Mont. 63, 50 P.3d 121 (citation omitted).
¶9 Black Crow argues several theories on appeal: (1) there was insufficient information
to bring an arrest warrant against him; (2) the State failed to file charges against him in a
timely manner following his arrest; (3) he received ineffective assistance of counsel; (4) he
was given an illegal sentence for the additional ten-year weapon enhancement; and (5) his
trial counsel failed to offer appropriate jury instructions.
¶10 The State contends that the 1995 version of the Montana Code Annotated applies
because Black Crow’s crime occurred in 1996. Nevertheless, the State argues that the
District Court’s rationale in denying Black Crow’s petition applies to the fundamental
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miscarriage of justice exception we approved in State v. Redcrow, 1999 MT 95, ¶¶ 33-34,
294 Mont. 252, 980 P.2d 622 (citing Schlup, 513 U.S. at 324, 115 S. Ct. at 865-66).
¶11 In 1997, the Montana Legislature amended the postconviction relief statutes to
change the statute of limitations for filing a postconviction relief petition from five years
to one year and included a statutory exception to the mandatory time limit for “[a] claim
that alleges the existence of newly discovered evidence.” Beach v. State, 2009 MT 398,
¶¶ 21, 23, 353 Mont. 411, 220 P.3d 667 (quoting § 46-21-102(2), MCA). The
postconviction relief statutes prior to 1997 contained no statutory exception. Beach, ¶ 23.
Even so, in Redcrow, we recognized an “extremely rare” exception to the five-year statute
of limitations when strict enforcement would result in a “fundamental miscarriage of
justice.” ¶ 33 (citing Schlup, 513 U.S. at 324, 115 S. Ct. at 865-66). Black Crow bases his
third petition for postconviction relief on this principle.
¶12 Contrary to the State’s assertion, “[w]hen determining whether a petition for
postconviction relief is timely, we look to the statute of limitations in effect at the time the
petition was filed, not to the statute in effect at the time of the conviction.” Whitehorn,
¶ 44, (citing Hawkins v. Mahoney, 1999 MT 82, ¶ 9, 294 Mont. 124, 979 P.2d 697). By
their express terms the 1997 amendments were made applicable only to proceedings in
which the conviction became final after April 24, 1997, or during the 12 months prior to
April 24, 1997, if a petition is filed within the 12 months after April 24, 1997. 1997 Mont.
Laws ch. 378, § 9; see Hawkins, ¶ 10 (citing § 46-21-102, MCA, Annotations, Compiler’s
Comments (1997)). A jury found Black Crow guilty on August 15, 1997. Black Crow
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was sentenced on October 29, 1997, and his conviction became final on March 16, 1999,
when this Court affirmed his conviction on appeal. Black Crow I, ¶ 34. Black Crow’s
third postconviction petition was filed on December 5, 2022. The District Court correctly
applied the post-1997 limitations in § 46-21-102(1), MCA. It concluded that the issues
Black Crow raised in his petition do not qualify as newly discovered evidence under
§ 46-21-102(2), MCA. We agree.
¶13 Section 46-21-102(2), MCA, provides that “[a] claim that alleges the existence of
newly discovered evidence that, if proved and viewed in light of the evidence as a whole
would establish that the petitioner did not engage in the criminal conduct for which the
petitioner was convicted, may be raised in a petition filed within 1 year of the date on which
the conviction becomes final or the date on which the petitioner discovers, or reasonably
should have discovered, the existence of the evidence, whichever is later.” Black Crow
does not state when his discovery of his pre-term birth occurred, other than to say
“recently.”
¶14 This Court is not obligated to develop legal analysis that might support a party’s
position on appeal. State v. Gunderson, 2010 MT 166, ¶ 12, 357 Mont. 142, 237 P.3d 74(citation omitted). Though he claims recent discovery of his pre-term birth, Black Crow
does not develop the evidence or explain how it meets the Schlup standard of actual
innocence. See Redcrow, ¶ 33 (quoting Schlup, 513 U.S. at 329, 115 S. Ct. at 868) (“Actual
innocence ‘does not merely require a showing that a reasonable doubt exists in the light of
the new evidence, but rather that no reasonable juror would have found the defendant
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guilty.’”) Rather, Black Crow’s newly discovered evidence argument reasserts his
ineffective assistance of counsel claims, which he raised in prior postconviction petitions.
The District Court correctly concluded that the information underlying these claims was
discoverable twenty years ago when Black Crow filed his first petition for postconviction
relief. Black Crow raised a claim related to his developmental disability in a previous
postconviction petition. He is barred from bringing the claim in a second or subsequent
petition when he has not shown “grounds for relief that could not reasonably have been
raised in the original or an amended original petition.” Section 46-21-105(1)(b), MCA.
¶15 Black Crow further contends that the ten-year weapon enhancement added to his
aggravated burglary conviction, which itself required proving the use of a weapon, violates
his right to protection against double jeopardy under Article II, Section 25 of the Montana
Constitution and our precedent in Guillaume and Whitehorn.
¶16 We held in State v. Guillaume that “application of the weapon enhancement statute
to felony convictions where the underlying offense requires proof of use of a weapon
violates the double jeopardy provision of Article II, Section 25 of the Montana
Constitution.” 1999 MT 29, ¶ 16, 293 Mont. 224, 975 P.2d 312. We reasoned that the
double jeopardy clause found in Article II, Section 25 of the Montana Constitution affords
greater protection against multiple punishments for the same offense than that afforded by
the Fifth Amendment to the United States Constitution. Guillaume, ¶ 16. In Whitehorn,
we held that Guillaume applies retroactively and clarified that felony assault with a weapon
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and aggravated burglary may not be enhanced under the weapon enhancement statute
because those offenses require proof of the use of a weapon. Whitehorn, ¶¶ 42, 45.
¶17 In Lott v. State, the defendant filed a habeas corpus petition arguing that the district
court unconstitutionally enhanced his sentence in violation of the prohibition against
double jeopardy under our decisions in Guillaume and Whitehorn, which were decided
after he was sentenced. 2006 MT 279, ¶¶ 2-3, 334 Mont. 270, 150 P.3d 337. The State
argued that habeas relief was not available to attack the validity of Lott’s sentence because
he had not filed a direct appeal or postconviction petition, and the five-year statute of
limitations for seeking postconviction relief had passed. Lott, ¶ 3 (citing § 46-21-102,
MCA). We granted the defendant’s habeas petition. Lott, ¶ 23. We stated that
“incarceration of an individual pursuant to a facially invalid sentence represents a grievous
wrong and a miscarriage of justice warranting habeas corpus relief.” Lott, ¶ 22 (internal
quotations and citations omitted).
¶18 Black Crow’s aggravated burglary conviction required proof that he was armed with
a weapon. Section 45-6-204(2)(a), MCA (1995). Therefore, Black Crow’s ten-year
weapon enhancement sentence is unconstitutional under Article II, Section 25 of the
Montana Constitution. Guillaume, ¶ 16; Whitehorn, ¶ 45. Like in Lott, if Black Crow had
filed a timely direct appeal or petition for postconviction relief on the issue of double
jeopardy, his argument would have been unavailing since Whitehorn was not issued until
after Black Crow’s filing date expired. Lott, ¶ 19. Although Black Crow filed a
postconviction relief petition and not a habeas petition, we extend our reasoning in Lott
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that to uphold Black Crow’s ten-year weapon enhancement, a facially invalid sentence,
would represent a grievous wrong and miscarriage of justice—his challenge to its legality
in his postconviction petition warrants relief. Lott, ¶ 22. We therefore deem this claim to
be a request for habeas corpus relief and grant it to this extent. The ten-year weapon
enhancement is facially invalid.
¶19 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. This appeal presents
no constitutional issues, no issues of first impression, and does not establish new precedent
or modify existing precedent. We affirm the District Court’s denial of Black Crow’s
postconviction relief petition, grant his deemed habeas corpus claim, and remand with
instructions to strike the ten-year weapon enhancement from the November 17, 1997
Judgment and Commitment.
/S/ BETH BAKER
We Concur:
/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
/S/ JIM RICE
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