Gopher v. 20th Judicial District Co

July 3 2012
DA 12-0018
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 141N
WILLIAM J. GOPHER,
Petitioner and Appellant,
v.
STATE OF MONTANA, LAKE COUNTY,
TWENTIETH JUDICIAL DISTRICT COURT,
AND THE HON. C.B. MCNEIL
Respondent and Appellee.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and For the County of Lake, Cause No. DC 05-116
Honorable C.B. McNeil, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
William J. Gopher, self-represented, Great Falls, Montana
For Appellee:
Steve Bullock, Montana Attorney General; Katie F. Schulz, Assistant
Attorney General, Helena, Montana
Mitch Young, Lake County Attorney; Mark A. Russell, Deputy County
Attorney, Polson, Montana
Submitted on Briefs: June 12, 2012
Decided: July 3, 2012
Filed:
__________________________________________
Clerk
Justice Brian Morris 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 Appellant William J. Gopher (Gopher) appeals the District Court’s order denying his
petition for declaratory judgment. We affirm.
¶3 The State of Montana charged Gopher with four felony counts in 2005 that arose from
Gopher’s bank robbery in Ronan. The charges included robbery, two counts of assault with
a weapon, and intimidation.
¶4 Gopher entered guilty pleas to the charges, pursuant to a plea agreement, on October
26, 2005. The District Court sentenced Gopher on November 30, 2005, in accordance with
the terms of the plea agreement. The court entered its written judgment and sentence on
December 20, 2005.
¶5 Gopher filed a petition for writ of habeas corpus on October 14, 2009. He next filed a
motion to withdraw his guilty plea on May 18, 2011. He later sought to amend his motion to
a writ of error coram nobis. Gopher asserted that he should not have been convicted of four
separate counts because the assault and intimidation charges involved “acts” contained in the
robbery count based on the language of § 45-5-401(3), MCA.
¶6 The District Court denied Gopher’s writ of error coram nobis on the basis that it was
not timely pursuant to § 46-16-105(2), MCA. Gopher filed the motion more than one year
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past the date that Gopher’s judgment had become final. Gopher filed the petition at issue in
this appeal on August 24, 2011, in which he alleged the same claims as in his motion to
withdraw his guilty plea. The State responded and the District Court again denied Gopher’s
petition as untimely on November 2, 2011.
¶7 Gopher filed a notice of appeal on January 6, 2012. Gopher argues that his request for
declaratory judgment accords with the exception made in McGillivray v. State, 1999 MT 3,
293 Mont. 19, 972 P.2d 804, regarding statutory time limits. The State disagrees.
¶8 We review for correctness a district court’s interpretation of law pertaining to a
declaratory judgment ruling. In re Estate of Marchwick, 2010 MT 129, ¶ 8, 356 Mont. 385,
234 P.3d 879. This Court reviews a district court’s conclusions of law to determine whether
they are correct. Connor v. City of Dillon, 2012 MT 21, ¶ 6, 364 Mont. 8, 270 P.3d 75. 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. It is manifest on the
face of the briefs and the record before us that the District Court correctly applied the
procedural time bar to Gopher’s claim.
¶9 Affirmed.
/S/ BRIAN MORRIS
We Concur:
/S/ JAMES C. NELSON
/S/ MICHAEL E WHEAT
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/S/ PATRICIA COTTER
/S/ JIM RICE
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