State v. Spinks

June 4 2013
DA 12-0561
IN THE SUPREME COURT OF THE STATE OF MONTANA
2013 MT 150NSTATE OF MONTANA,
Plaintiff and Appellee,
v.
BRIAN JOSEPH SPINKS,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DC-00-235
Honorable Holly Brown, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Brian Joseph Spinks (Self-Represented), Great Falls, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant
Attorney General, Helena, Montana
Marty Lambert, Gallatin County Attorney, Todd Whipple, Deputy
County Attorney, Bozeman, Montana
Submitted on Briefs: April 17, 2013
Decided: June 4, 2013
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter 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 Brian Joseph Spinks (Spinks) appeals from an order of Montana’s Eighteenth
Judicial District Court, Gallatin County, denying his petition for postconviction relief.
On December 14, 2000, the State charged Spinks with two felony counts of sexual
intercourse without consent in violation of § 45-5-503, MCA. The conduct forming the
basis of the charges occurred on July 3, 2000. On May 1, 2001, Spinks pled guilty to
amended misdemeanor charges of partner or family member assault and negligent
endangerment. The District Court sentenced Spinks to one year in the custody of the
Gallatin County Detention Center for each offense to run consecutively, and suspended
all but the 116 days Spinks had already served for each offense. The District Court
entered the sentence and judgment on May 30, 2001.
¶3 Spinks had previously pled guilty to partner or family member assault in Gallatin
County Justice Court on July 5, 2000. Spinks alleges that his District Court sentence
represents the second time that he was charged and sentenced for his conduct on July 3,
2000. On February 8, 2011, Spinks filed a letter with the District Court asserting that his
conviction in District Court violated his constitutional double jeopardy rights. On March
8, 2011, Spinks filed a “Motion to Expunge or Retrial Due to Double Jeopardy
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Conviction” in which he set forth his double jeopardy claim. The District Court noted
that Spinks never raised any double jeopardy concerns during any earlier proceedings and
did not appeal his conviction. On May 2, 2011, the District Court denied Spinks’ motion
as untimely pursuant to M. R. App. P. 5(b)(i) and § 46-21-102(1), MCA.
¶4 On May 8, 2012, and July 16, 2012, Spinks filed additional motions for
postconviction relief due to double jeopardy considerations. Once again, the District
Court denied Spinks’ motions as untimely. Spinks appeals the District Court’s decision.
We address the following issue on appeal:
¶5 Did the District Court err in denying Spinks’ petition for postconviction relief?
¶6 The District Court entered its sentence and judgment against Spinks on May 30,
2001. The judgment became final 60 days later when Spinks’ time to file a direct appeal
lapsed. M. R. App. P. 5(b)(i). The statute of limitations for filing a petition for
postconviction relief expired one year after the conviction became final pursuant to
§ 46-21-102(1), MCA. See e.g. Davis v. State, 2004 MT 112, ¶ 15, 321 Mont. 118, 88
P.3d 1285. We agree with the District Court’s conclusion that Spinks’ petition for
postconviction relief and double jeopardy arguments raised for the first time nearly nine
years after the expiration of the applicable statute of limitations was time-barred.
¶7 Spinks asserts that denial of his petition for postconviction relief would constitute
a fundamental miscarriage of justice. However, the fundamental miscarriage of justice
exception applies only to claims in which the petitioner alleges that newly discovered
evidence establishes that he did not commit the offense. See State v. Evert, 2007 MT 30,
¶ 16, 336 Mont. 36, 152 P.3d 713; § 46-21-102(2), MCA. Spinks contends that the
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victim recanted, but relies on evidence that was known to him at the time he pled guilty
to the offenses. Therefore, Spinks cannot satisfy the fundamental miscarriage of justice
exception. Spinks has failed to establish that any other exceptions or tolling apply to his
petition.
¶8 Notwithstanding the multiple procedural bars present in this case, Spinks has
failed to comply with the requirements of § 46-21-104, MCA. Spinks did not provide the
District Court with any information or records pertaining to his earlier conviction in
Justice Court. Even if it was determined to reach the merits, the District Court did not
have sufficient evidence to evaluate the validity of Spinks’ double jeopardy claims.
Accordingly, the District Court did not err in denying Spinks’ petition for postconviction
relief.
¶9 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
District Court’s factual findings are supported by substantial evidence and the legal issues
in this case are controlled by settled Montana law, which the District Court correctly
interpreted.
/S/ PATRICIA COTTER
We Concur:
/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ BRIAN MORRIS
/S/ JIM RICE
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