VanZomeren v. Kowalski

03/17/2020
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: OP 20-0108
OP 20-0108
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ERIC DEAN VANZOMEREN,
MAR 1 7 2020
Bovven Cireenvvood
Court
Clerk of Supreme
State of Montana
Petitioner,
v. ORDER
CAPTAIN JASON KOWALSKI,
Respondent.
Eric Dean VanZomeren has filed a petition for a writ of habeas corpus, claiming
that his incarceration is illegal because of statutory and constitutional violations.
VanZomeren is currently placed at the Missoula Assessment and Sanction Center(MASC).
VanZomeren's attached Judgment shows that on June 4, 2019, he entered a plea of
guilty to felony assault on a minor in the Thirteenth Judicial District Court,
Yellowstone County. The District Court committed him to the Department of Corrections
for a three-year term. VanZomeren received credit for time served prior to imposition of
sentence from June 27, 2018,through June 4, 2019. VanZomeren did not appeal.
In his twenty-page petition, VanZomeren requests his immediate release from
custody along with dropping the charge, overturning his conviction, awarding half of his
sentence as credit for time served, and his release. He contends that the threat of being
sentenced as a persistent felony offender (PFO) was used to reach a plea agreement.
VanZomeren provides some factual background and puts forth claims of: (1) actual
innocence;(2) ineffective assistance of counsel(IAC);(3) denial ofjury trial; and (4) the
Judge's failure to abide by the plea agreement. He concludes that these "errors" amount
to violations of his due process rights.
VanZomeren's claims are not appropriate for a writ ofhabeas corpus. VanZomeren
pleaded guilty to assault on a minor in a court ofrecord. "[A] defendant waives the right
to appeal all nonjurisdictional defects upon voluntarily and knowingly entering a guilty
plea, including clairns of constitutional violations which may have occurred prior to the
plea.'" State v. Pavey, 2010 MT 104, ¶ 11, 356 Mont. 248, 231 P.3d 1104 (quoting
State v. Violette, 2009 MT 19, ¶ 16, 349 Mont. 81, 201 P.3d 804). And he has exhausted
his appeal rernedy by failing to file a timely appeal. Section 46-22-101(2), MCA.
VanZomeren is barred to raise any record-based IAC claims or other errors that could have
been raised in a timely appeal. See State v. Wright, 2001 MT 282, ¶ 13, 307 Mont. 349,
42 P.3d 753.
Because he did not appeal, VanZomeren's conviction becarne final sixty days after
June 4, 2019, or August 4, 2019. Section 46-21-102(1)(a), MCA. VanZomeren has a year
from August 4, 2019, to file a timely petition for postconviction relief in the
Yellowstone County District Court to the extent he wishes to raise non-record based
ineffective assistance of counsel claims.
IT IS THEREFORE ORDERED that VanZorneren's Petition for a Writ of Habeas
Corpus is DENIED.
The Clerk is directed to provide a copy of this Order to counsel of record and to
Eric Dean VanZornerentzsonally.
DATED this )--4"- day of March, 2020.
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