Larson v. State

11/07/2017
DA 17-0010
Case Number: DA 17-0010
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 271N
WALTER M. LARSON, JR.,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Seventh Judicial District,
In and For the County of Dawson, Cause No. DV 16-115
Honorable Richard A. Simonton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Walter M. Larson, Jr., Self-Represented, Shelby, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant
Attorney General, Helena, Montana
Cody Lensing, Brett Irigoin, Deputy Dawson County Attorneys, Glendive,
Montana
Submitted on Briefs: October 4, 2017
Decided: November 7, 2017
Filed:
__________________________________________
Clerk
Justice James Jeremiah Shea 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 Walter M. Larson, Jr. (“Larson”), appearing pro se, appeals from the December
21, 2016 Order of the Seventh Judicial District Court, Dawson County, dismissing his
second petition for postconviction relief with prejudice. We address whether the District
Court erred in dismissing Larson’s second petition. We affirm.
¶3 On April 1, 2013, Larson was convicted of deliberate homicide and tampering
with physical evidence. On October 16, 2013, Larson appealed his conviction, and on
September 15, 2015, we affirmed Larson’s conviction. 1 On October 26, 2015, Larson
filed his first Petition for Postconviction Relief (PCR), alleging ineffective assistance of
trial counsel. The District Court ordered Larson’s trial attorneys, Randi Hood and J.
Thomas Bartelson, to respond, and both attorneys filed responsive affidavits. On
December 7, 2015, the District Court dismissed Larson’s first PCR Petition for failure to
state a claim for which relief could be granted. Larson appealed and argued that the
District Court erred by failing to hold an evidentiary hearing prior to dismissing his
Petition and by failing to appoint counsel during the postconviction proceeding. On
1
State v. Larson, 2015 MT 271, ¶¶ 1, 42, 381 Mont. 94, 356 P.3d 488 [hereinafter Larson I].
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October 11, 2016, we affirmed the District Court’s dismissal of the first PCR Petition.2
We held that the District Court did not abuse its discretion when it determined that a
hearing was not required and that, because Larson’s PCR Petition failed to state a claim
upon which relief could be granted, the District Court was not required to appoint counsel
to assist Larson. Larson II, ¶¶ 6–7 (citing §§ 46-8-104, 46-21-201(2), MCA). On
November 29, 2016, Larson filed his second PCR Petition, re-alleging ineffective
assistance of trial counsel. On December 21, 2016, the District Court dismissed Larson’s
second Petition, and he again appealed. Larson argues that the District Court erred in
denying his PCR Petition by not ordering his former defense counsel to re-submit
response affidavits and by not holding an evidentiary hearing to determine the validity of
his claims.
¶4 We review a district court’s denial of a petition for PCR to determine whether its
findings of fact are clearly erroneous and its conclusions of law are correct. Beach v.
State, 2009 MT 398, ¶ 14, 353 Mont. 411, 220 P.3d 667; Whitlow v. State, 2008 MT 140,
¶ 9, 343 Mont. 90, 183 P.3d 861. We review discretionary rulings, including rulings on
whether to hold an evidentiary hearing, for abuse of discretion. Heath v. State, 2009 MT
7, ¶ 13, 348 Mont. 361, 202 P.3d 118.
¶5 In Larson’s second PCR Petition and subsequent briefing, all his accusations are
again framed in terms of ineffective assistance of counsel. Larson argues that he has
made several attempts to access documents and evidence, including investigative reports
and the files of former counsel, that could help to prove his non-record based claims, and
2
Larson v. State, 2016 MT 259N, ¶¶ 2, 9, 36 Mont. 393, 384 P.3d 46 [hereinafter Larson II].
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that the District Court should have appointed counsel to assist Larson with his PCR
defense. Larson also argues that the merits of his allegations have never been addressed
by the District Court; instead, the District Court dismissed Larson’s PCR Petitions based
on procedural errors and declined to give him latitude as a pro se litigant. The State of
Montana responds that the right to counsel ends following the conclusion of a direct
appeal, § 46-8-103(1), MCA; see also State v. Bromgard, 285 Mont. 170, 175, 948 P.2d
182, 185 (1997) (explaining that there is no constitutional requirement that counsel be
appointed in a PCR proceeding), and that any assignment of counsel after the direct
appeal is fully within the district court’s discretion, see §§ 46-8-104, 46-21-201(2), MCA.
The State responds that the dismissal of Larson’s first PCR Petition for procedural
deficiencies creates no right to file a second petition; instead, such successive petitions
are governed by § 46-21-105, MCA.
¶6 The District Court determined that Larson’s second PCR Petition was virtually
identical to his first PCR Petition: it set out the “same allegations” and offered “no
additional substantial evidence” for the District Court to consider. See § 46-21-105(1)(b),
MCA. The District Court characterized the second PCR Petition as “redundant” and
“frivolous” and did not require Larson’s trial attorneys to respond a second time. See
§§ 46-8-104(2)–(3), 46-21-201(2), MCA.
¶7 A district court “shall dismiss a second or subsequent petition [for PCR] by a
person who has filed an original petition unless the second or subsequent petition raises
grounds for relief that could not reasonably have been raised in the original or amended
original petition,” § 46-21-105(1)(b), MCA, the goal being “to eliminate the unnecessary
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burden placed upon the courts by repetitious or specious petitions,” Bromgard, 285 Mont.
at 174, 985 P.2d at 184 (quoting the Commission Comments to § 46-21-105, MCA)
(internal citations omitted). A petition for PCR must not be based on “mere conclusory
allegations,” Ellenburg v. Chase, 2004 MT 66, ¶ 16, 320 Mont. 315, 87 P.3d 473; or on
self-serving statements, Kelly v. State, 2013 MT 21, ¶¶ 9–11, 368 Mont. 309, 300 P.3d
120. A petitioner’s failure to satisfy these statutory requirements, or to show that the
petitioner is entitled to relief, may result in a district court’s dismissal of the petition.
Marble v. State, 2015 MT 242, ¶¶ 31, 38, 380 Mont. 366, 355 P.3d 742 (internal citations
omitted); § 46-21-104(1), MCA.
¶8 In our previous denial of Larson’s first Petition for PCR, we determined that
Larson failed to comply with statutory requirements when his petition did not identify
facts supporting his alleged grounds for relief and did not attach “affidavits, records, or
other evidence establishing the existence of those facts.” Larson II, ¶¶ 5–6 (quoting
§ 46-21-104(1)(c), MCA). While we afford pro se litigants considerable latitude in
proceedings, we “expect all litigants, including those acting pro se, to adhere to the
procedural rules.” First Bank (N.A.)-Billings v. Heidema, 219 Mont. 373, 376, 711 P.2d
1384, 1386 (1986). In his second PCR Petition, Larson made virtually identical
conclusory allegations as those made in his first Petition, offering no new evidence to
support his repeated allegations. See § 46-21-105(1)(b), MCA; Bromgard, 285 Mont. at
175–76, 948 P.2d at 184–86. As the District Court correctly concluded, all of Larson’s
“additional facts” were, or could have been, raised in his first Petition; Larson added no
other substantial evidence for the District Court to consider. See § 46-21-105(1)(b),
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MCA. Larson failed to offer new evidence in support of his allegations of ineffective
assistance of counsel, and the District Court did not err when it dismissed Larson’s
second PCR Petition for failure to meet the statutory requirements of § 46-21-105(1)(b),
MCA.
¶9 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, the case presents a question controlled by settled law or by the clear
application of applicable standards of review. The District Court’s findings of fact are
not clearly erroneous, its conclusions of law are correct, and its ruling was not an abuse
of discretion. We affirm.
/S/ JAMES JEREMIAH SHEA
We Concur:
/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR
/S/ JIM RICE
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