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Mocko v. State

Supreme Court of Montana

August 6, 2013

STEPHEN R. MOCKO, Petitioner and Appellant,
v.
STATE OF MONTANA, Respondent and Appellee.

Submitted on Briefs: July 17, 2013

APPEAL FROM: District Court of the Nineteenth Judicial District, In and For the County of Lincoln, Cause No. DV 12-20 Honorable James B. Wheelis, Presiding Judge

For Appellant:

Stephen R. Mocko, self-represented; Eureka, Montana

For Appellee:

Timothy C. Fox, Montana Attorney General; C. Mark Fowler, Assistant Attorney General; Helena, Montana

Bernard G. Cassidy, Lincoln County Attorney; Libby, Montana

OPINION

Beth Baker, Justice

¶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 Stephen Mocko appeals the Nineteenth Judicial District Court's August 27, 2012 denial of his motion to amend his petition for postconviction relief. Mocko argues that the Lincoln County Justice Court lacked jurisdiction over the criminal case against him, that the criminal court failed to establish a factual basis for his guilty plea, and that he received ineffective assistance of counsel during the criminal proceedings. He argues that the District Court abused its discretion when it summarily denied his petition and refused to allow him to amend it. We affirm.

¶3 In October 2009, Mocko was charged in Lincoln County Justice Court with misdemeanor Driving Under the Influence of Alcohol, second offense. The citation, written by a Lincoln County Sheriff's Deputy, indicates that Mocko had a broken taillight and was swerving on "Hwy 37 – River Dr." Mocko eventually entered into a written plea agreement with the State, pursuant to which he agreed to plead nolo contendere to Reckless Driving in exchange for the State's dismissal of the DUI charge. Mocko was represented by counsel at the time the plea agreement was signed, though he also appeared pro se at times during the pendency of the case. While he had filed several pretrial motions, Mocko did not reserve his right to appeal any of the Justice Court's adverse rulings. His written plea agreement stated his acknowledgment that "there is a factual basis to believe that I am guilty of each offense, and that the violations occurred within Lincoln County." In addition, the plea agreement expressly waived "the right to object to and move for the suppression of any evidence that may have been obtained in violation of the law or constitution."

¶4 On February 2, 2011, as agreed, Mocko entered his nolo contendere plea to Reckless Driving and the State moved to dismiss the DUI charge. The court imposed judgment the same day; in accordance with the plea agreement, it sentenced Mocko to ninety days in the county detention facility, all of which was suspended, fined him $300 plus surcharges, and ordered Mocko to complete a chemical dependency assessment. No appeal was taken.

¶5 On February 2, 2012, Mocko filed a petition for postconviction relief, along with a seventy-page supporting memorandum and a motion to vacate the judgment. Mocko claimed that the Justice Court lacked jurisdiction to adjudicate the charge against him because the charging instrument was invalid and the State never filed a new document charging him with Reckless Driving; that the Justice of the Peace acted outside her jurisdiction by failing to disqualify herself after Mocko filed an affidavit of prejudice; that the State violated his constitutional rights by failing to provide him with evidence in its possession; that there was insufficient colloquy at the change of plea hearing to establish a factual basis for the charge of Reckless Driving; and that Mocko was denied effective assistance of counsel. The District Court denied Mocko's original petition on April 2, 2012, without a hearing. His subsequent motion to alter or amend was deemed denied.

ΒΆ6 Mocko sought leave to amend his petition to raise another claim of ineffective assistance on the ground that his counsel failed to inform him that the plea agreement could reserve the right to appeal the pretrial rulings against him. The District Court denied the motion, ruling it untimely and without merit. Mocko's appeal reiterates the claims raised in his ...


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