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James E. Scriver, Jr v. State of Montana

December 19, 2012

JAMES E. SCRIVER, JR., PETITIONER AND APPELLANT,
v.
STATE OF MONTANA, RESPONDENT AND APPELLEE.



APPEAL FROM: District Court of the Ninth Judicial District, In and For the County of Teton, Cause No. DDV 11-038 Honorable Dirk M. Sandefur, Presiding Judge

The opinion of the court was delivered by: Chief Justice Mike McGrath

Submitted on Briefs: October 24, 2012

Decided: December 19, 2012

Filed:

Clerk

Chief Justice Mike McGrath 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 James Scriver, Jr. appeals from the District Court's Order Denying Petition for Post-conviction Relief, filed June 5, 2012. We reverse and remand.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 In 1995 the State of Montana charged Scriver with sexual assault, a felony. He was released from custody on the condition that he appear at all subsequent court proceedings. He failed to do so and absconded for a period of years. In 2003 he surrendered to authorities in Idaho. The Idaho authorities subsequently released him, allegedly because Montana failed to timely extradite him. Six years later in 2009, Scriver was arrested in Wyoming and returned to Montana to face the sexual assault charge. Upon his return he was additionally charged with bail jumping for having absconded from prosecution since 1995.

¶4 Scriver ultimately entered an agreement to plead guilty to sexual assault and bail jumping. The District Court accepted Scriver's plea and in September 2010 sentenced him to 20 years at the Montana State Prison for sexual assault, restricting parole and good time allowance, and designating him as a Tier 2 sex offender. The District Court sentenced Scriver to five years for bail jumping, to run consecutive to the sentence for sexual assault.

¶5 Scriver did not appeal, but obtained sentence review, which left his sentence unchanged. In August 2011, Scriver petitioned pro se for post-conviction relief, claiming that he was provided ineffective assistance of counsel prior to entering guilty pleas to felony sexual assault and bail jumping. He claimed that his attorney failed to advise him of his right to a speedy trial as it related to the charge of sexual assault and that his guilty plea to that offense was therefore not voluntary.

ΒΆ6 The District Court reviewed the record in Scriver's prior criminal proceeding, including the written plea agreement, the acknowledgment of waiver of rights form, and the transcript of the change of plea hearing. Based upon this review, the District Court found that Scriver knowingly, voluntarily and intelligently entered the guilty pleas to sexual assault and bail ...


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