B. Watts v. State

04/21/2020
DA 19-0089
Case Number: DA 19-0089
IN THE SUPREME COURT OF THE STATE OF MONTANA
2020 MT 97N
BILLY JOE WATTS,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. CDV 18-171
Honorable Kathy Seeley, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Billy Joe Watts, Self-represented, Shelby, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
Attorney General, Helena, Montana
Leo Gallagher, Lewis and Clark County Attorney, Helena, Montana
Submitted on Briefs: October 16, 2019
Decided: April 21, 2020
Filed:
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__________________________________________
Clerk
Justice Dirk Sandefur 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 Billy Joe Watts (Watts) appeals the judgment of the Montana First Judicial District
Court, Lewis and Clark County, denying his petition for postconviction relief. We affirm.
¶3 In March 2018, Watts’ sought postconviction relief regarding two separate cases
involving convictions for Partner or Family Member Assault (PFMA)—a 2012 conviction
and a 2015 conviction. In the 2012 case, he pled guilty to fourth offense PFMA and was
sentenced to a suspended five-year prison term.1 A 2003 conviction was one of the
predicate prior convictions for the felony PFMA. While awaiting disposition on the State’s
revocation petition after admitting to alleged probation violations, Watts moved the District
Court to set aside his original 2012 conviction “due to previous infirm convictions.” After
denying that motion, the District Court revoked his original suspended sentence and
resentenced him to an unsuspended five-year prison term with credit for time served. Watts
later timely appealed the 2015 revocation and resentencing on his original 2012 conviction.
1
Watts timely appealed the original 2012 conviction, but we later dismissed the appeal on his
unopposed motion in favor of pursuit of a motion to withdraw his guilty plea in district court.
State v. Watts, DA 13-0090, Or. (Mont. July 18, 2013).
2
However, by subsequent stipulation signed by client and counsel, he stipulated to the
dismissal of the balance of the appeal “with prejudice” in return for the State’s stipulation
for remand for entry of an amended judgment of conviction reflecting the correct amount
of time served. Pursuant to the parties’ stipulated motion, we remanded for entry of an
amended judgment and dismissed the appeal without qualification.2
¶4 In the second case, Watts pled guilty to a fifth offense PFMA committed while he
was still on probation for his 2012 conviction. With the assistance of counsel, he pled
guilty under a plea agreement in return, inter alia, for the State’s abandonment of its intent
to seek a persistent felony offender enhancement of the maximum penalty based on his
prior PFMA conviction in 2012. However, based on the fact that the pre-2013 versions of
§ 45-5-206, MCA, defined PFMA in terms of proscribed conduct directed at a partner “of
the opposite sex,” Watts asserted at sentencing that his prior PFMA convictions were
constitutionally invalid in violation of the equal protection guarantees of the United States
and Montana Constitutions. State v. Watts (Watts I), 2016 MT 331, ¶¶ 4-6, 386 Mont. 8,
385 P.3d 960. He thus moved for dismissal of the resulting felony based on the alleged
invalid prior convictions, which would thereby leave him guilty of only a misdemeanor
PFMA. Watts I, ¶ 6. However, based on a severability clause in the PFMA statute, the
District Court rejected his constitutional challenge to the prior convictions and sentenced
Watts to an additional five-year prison term on the fifth offense PFMA. Watts I, ¶¶ 6, 10.
On appeal, we affirmed on the ground that Watts waived the right to challenge the
2
State v. Watts, DA 15-0628, Or. (Mont. Jan. 10, 2017).
3
constitutional validity of his prior convictions by failing to preserve the right to appeal in
his plea agreement. Watts I, ¶¶ 10, 14. We held further that the limited exception to the
plea waiver rule under State v. Lenihan, 184 Mont. 338, 343, 602 P.2d 997, 1000 (1979)
(in re sentences illegal or in excess of statutory mandate), did not apply to
non-jurisdictional challenges to the underlying conviction. Watts I, ¶¶ 11-15.
¶5 In March 2018, Watts responded with an assisted pro se petition3 for postconviction
relief asserting that he received ineffective assistance (IAC) from both his trial and
appellate counsel regarding the 2014-2015 proceedings on his 2012 and 2015 PFMA
convictions. In various regards, he asserted that he was deprived of his federal and state
constitutional rights to effective assistance of counsel by the failures of counsel to timely
inform him and preserve his equal protection challenge to the validity of the predicate prior
PFMA convictions for his 2015 felony conviction. As before, Watts asserted that, by
narrowly defining PFMA in terms of conduct directed at a partner “of the opposite sex,”
the pre-2013 versions of § 45-5-206, MCA, disparately applied only to heterosexual
couples, thereby subjecting heterosexual partner abusers (like him) to a criminal penalty to
which it did not subject same-sex partner abusers for the same conduct.
¶6 On various procedural and substantive grounds, the District Court denied Watts’
petition without a hearing. The court first concluded that any record-based IAC claim
regarding the 2014-2015 proceedings on his 2012 PFMA conviction was procedurally
3
See M. R. Pro. Cond. 1.2(c) (limited representation).
4
barred by § 46-21-105(2), MCA, due to failure to raise it on direct appeal. The court further
concluded that any non-record-based claim regarding those proceedings were similarly
barred by § 46-21-102(1), MCA, due to failure to timely raise it within one year of the date
when the judgment became final on January 10, 2017. The court finally concluded that
Watts’ IAC claims regarding proceedings on his 2015 conviction were substantively
deficient because the petition did not state sufficient facts or law to establish the requisite
prejudice prong of an IAC claim in light of State v. Theeler, 2016 MT 318, ¶¶ 14-15,
385 Mont. 471, 385 P.3d 551 (rejecting similar equal protection challenge to pre-2013
PFMA statute by heterosexual offender on ground that severance clause saved it even if
assumed to unconstitutionally discriminate between heterosexual and same-sex offenders).
We agree with the District Court.
¶7 An IAC claimant has the burden of demonstrating that the subject performance of
counsel was both deficient (i.e., “below an objective standard of reasonableness” under the
totality of the circumstances) and prejudicial (i.e., that it was reasonably likely that the
outcome would have been different but for the deficient performance). Ariegwe v. State,
2012 MT 166, ¶¶ 15-16; 365 Mont. 505, 285 P.3d 424; Heath v. State, 2009 MT 7, ¶ 17,
348 Mont. 361, 202 P.3d 118; Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984). Upon our review of the petition, the pertinent record, and the subject
judgment in this case, we hold that the District Court correctly denied Watts’ petition for
postconviction relief on the stated procedural and substantive grounds without a hearing
5
pursuant to § 46-21-201(1)(a), MCA (permissible dismissal without hearing if petition
conclusively shows no entitlement to relief). We affirm.
¶8 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.
/S/ DIRK M. SANDEFUR
We concur:
/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ INGRID GUSTAFSON
/S/ JIM RICE
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