December 4, 2013
PAUL F. BLAKELY, Petitioner,
MARTIN FRINK, Warden, Respondent.
Paul F. Blakely (Blakely) has filed a petition for a writ of habeas corpus claiming that by participating in both the accusatory and the adjudicatory processes that resulted in his conviction, Judge Salvagni deprived him of a fair trial before an impartial tribunal which violated his Sixth and Fourteenth Amendment rights guaranteed by the U.S. Constitution. He argues that Judge Salvagni lacked jurisdiction and was required to recuse himself from further participation in the case after granting leave to file the information. Blakely reasons that the judgment was "void" because jurisdiction was absent from the beginning or lost in the course of the proceedings. When discovered, Blakely asserts that a legal nullity may be challenged at any time.
In May of 2009, Blakely was convicted upon a guilty plea in Gallatin County District Court of felony indecent exposure and sentenced to 25 years in prison with 15 suspended. We conclude that his incarceration is legal as explained herein.
While Montana statutes allow the commencement of a prosecution in district court by means of an indictment by a grand jury, a felony prosecution is usually initiated by the prosecutor filing an application and affidavit identifying evidence demonstrating probable cause that the named defendant has committed an offense. Consequently, in Montana district courts, an order granting leave to file the information triggers the prosecution. Sections 46-11-101 and -201, MCA. The information determines only that probable cause exists. By granting the State leave to file the information, Judge Salvagni made no determination of Blakely's guilt.
The federal case law upon which Blakely relies has no application here, as it addresses federal grand jury proceedings and subsequent criminal prosecutions that must be handled by different judges. Blakely was not indicted by a grand jury.
A defendant waives the right to appeal all nonjurisdictional defects "upon voluntarily and knowingly entering a guilty plea, including claims 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, citing State v. Violette, 2009 MT 19, ¶ 16, 349 Mont. 81, 201 P.3d 804. Blakely retained only the right to attack the voluntary and intelligent character of the plea, any jurisdictional defects and any pretrial rulings preserved in the record for appeal. His jurisdictional argument is premised upon inapplicable federal law and an entirely different prosecution process than the Montana procedures under which he was convicted. Therefore, the jurisdictional argument fails.
Blakely's recourse is further constrained by his failure to appeal or file a timely petition for postconviction relief. Habeas corpus "is not available to attack the validity of the conviction or sentence of a person who has been adjudged guilty of an offense in a court of record and has exhausted the remedy of appeal." Section 46-22-101(2), MCA. Blakely was convicted upon his guilty plea in a court of record and by failing to appeal, he exhausted his appeal remedy. Consequently, he is barred from obtaining habeas corpus relief. Lott v. State, 2006 MT 279, ¶19, 334 Mont. 270, 150 P.3d 337.
IT IS ORDERED that the Petition for a Writ of Habeas Corpus is DENIED.
The Clerk is directed to provide a copy hereof to counsel of record and to Paul F. Blakely.