State v. Dallas C. Herman

March 12 2013
DA 12-0348
IN THE SUPREME COURT OF THE STATE OF MONTANA
2013 MT 65N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
DALLAS C. HERMAN,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DC-01-043(C) and
DC-06-383(A)
Honorable Stewart E. Stadler, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Dallas C. Herman (Self-Represented), Atwater, California
For Appellee:
Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
Attorney General, Helena, Montana
Ed Corrigan, Flathead County Attorney, Lori Adams, Deputy County
Attorney, Kalispell, Montana
Submitted on Briefs: February 6, 2013
Decided: March 12, 2013
Filed:
__________________________________________
Clerk
Justice Beth Baker 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 Dallas C. Herman appeals several orders entered by the Eleventh Judicial District
Court, Flathead County, denying motions to dispose of his probation violations. We
affirm.
¶3 Herman was sentenced in 2001 to a twenty-year prison term with thirteen years
suspended on his plea of guilty to the offense of Conspiracy to Commit Robbery in
violation of §§ 45-4-102 and 45-5-401, MCA. After his release from prison, Herman
pleaded guilty in April 2008 to Criminal Possession with Intent to Distribute
methamphetamine and the court imposed a consecutive prison term of seven years, with
all seven years suspended. Five months later, the Flathead County Attorney filed
petitions in both cases to revoke Herman’s suspended sentences and warrants were issued
for his arrest. Before Herman could be arrested on those outstanding warrants, he was
arrested in Spokane, Washington, in August 2008 and charged with Possession with
Intent to Distribute 50 or more grams of methamphetamine. On his plea of guilty, he was
sentenced in April 2010 to 186 months in federal prison for that offense.
¶4 In January 2011, Herman filed with the District Court a Demand for Speedy Trial
and Petition to Dispose of Probation Violation. Herman contended that, pursuant to
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§ 46-31-101, MCA, the Interstate Agreement on Detainers (IAD), he was entitled to a
speedy resolution of the probation revocation proceedings while he was incarcerated in
federal prison for the crimes that constituted violation of the conditions of his suspended
sentences.
¶5 On October 5, 2011, the District Court concluded that the IAD “does not apply to
probation violations” and, consequently, that Herman’s “petition to dispose of
probation . . . [is] denied.” Herman twice requested that the District Court reconsider its
order in motions filed on December 7, 2011, and April 10, 2012. The District Court
denied both requests. Herman filed his notice of appeal on June 4, 2012, and now asserts
that the District Court’s legal conclusion regarding the IAD was incorrect. He also
contends that the court erred by denying an argument he raised in his second motion to
reconsider its original order.
¶6 The State contends that Herman’s appeal is untimely because his motions to
reconsider did not toll the time for appeal of the District Court’s October 5, 2011 order.
The State also argues that the District Court’s dismissal of Herman’s petition was correct
on the merits.
¶7 As the State points out, the Montana Rules of Civil Procedure do not provide for a
motion for reconsideration and we have refused to recognize such motions in civil cases
“unless the substance of the motion constructively requests the court to alter or amend the
judgment” as allowed by M. R. Civ. P. 59. Horton v. Horton, 2007 MT 181, ¶ 8, 338
Mont. 236, 165 P.3d 1076 (citation omitted). We have observed, however, that
“revocation proceedings are matters over which the original sentencing court in a
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criminal case ‘retains jurisdiction.’. . . Thus, revocations are a postconviction
continuation of criminal cases.” State v. Rogers, 267 Mont. 190, 193, 883 P.2d 115, 117
(1994) (quoting State v. Oppelt, 184 Mont. 48, 52-53, 601 P.2d 394, 397 (1979)).
¶8 Under the Montana Rules of Appellate Procedure, an appeal in a criminal case
“must be taken within 60 days after entry of the judgment from which appeal is taken.”
M. R. App. P. 4(5)(b)(i). Herman filed his notice of appeal 241 days after the District
Court entered its judgment on October 5, 2011, but within sixty days from the denial of
his second motion to reconsider. Even if Herman’s appeal were to be considered timely,
we conclude that it lacks merit.
¶9 We have held that an outstanding charge “based on probation or parole violation is
not sufficient to be determined an ‘untried indictment, information or complaint’”
sufficient to trigger the Interstate Agreement on Detainers.” Blakey v. Dist. Ct., 232
Mont. 178, 185, 755 P.2d 1380, 1384 (1988) (citing Carchman v. Nash, 473 U.S. 716,
105 S. Ct. 3401 (1985); see also U.S. v. Bottoms, 755 F.2d 1349 (9th Cir. 1985)). The
District Court correctly concluded that the IAD does not apply to probation violations.
We decline to consider the issue raised for the first time in Herman’s second motion to
reconsider, as such motions “cannot be used to raise arguments which could, and should,
have been made before judgment issued.” Nelson v. Driscoll, 285 Mont. 355, 360, 948
P.2d 256, 259 (1997) (citation omitted).
¶10 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
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issues in this case are legal and controlled by settled Montana law, which the District
Court correctly interpreted.
¶11 Affirmed.
/S/ BETH BAKER
We Concur:
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ JIM RICE
/S/ BRIAN MORRIS
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