ALLEN J. POTTER, Petitioner and Appellant,
STATE OF MONTANA, Respondent and Appellee.
Submitted on Briefs: April 5, 2017
Court of the Fourth Judicial District, In and For the County
of Missoula, Cause No. DV-16-342 Honorable John W. Larson,
Appellant: Allen James Potter, Self-Represented, Shelby,
Appellee: Timothy C. Fox, Montana Attorney General, Jonathan
M. Krauss, Assistant Attorney General, Helena, Montana
Kirsten Pabst, Missoula County Attorney, Missoula, Montana.
Jeremiah Shea Justice.
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
Allen J. Potter appeals an order of the Fourth Judicial
District Court, Missoula County, dismissing Potter's
petition for postconviction relief for failure to state a
claim for relief. We address whether the District Court erred
by dismissing Potter's petition. We affirm.
On August 24, 2006, Potter was convicted of felony aggravated
assault, and was designated as a Persistent Felony Offender
(PFO). After reviewing a presentence investigation report
(PSI), the District Court sentenced Potter to twenty years
without possibility of parole for the assault, and an
additional fifty years with twenty suspended as a PFO.
Following the sentencing, Potter filed his first petition for
postconviction relief for ineffective assistance of counsel,
but the case was dismissed for failure to state a claim. On
March 15, 2013, Potter petitioned for a writ of habeas corpus
in which he claimed the State incorrectly sentenced him by
giving him a PFO sentence and a sentence for the
aggravated assault to be served consecutively, rather than a
single PFO sentence. The State conceded the argument, and we
granted the writ and remanded the case for the sole purpose
of correcting Potter's sentence. On remand, the District
Court held a resentencing hearing and imposed a seventy-year
PFO sentence with twenty years suspended. On April 13, 2016,
Potter filed a second petition for postconviction relief,
again asserting ineffective assistance of counsel.
Potter's petition was denied, and he timely appealed.
We review petitions for postconviction relief to determine
whether the district court's findings of fact are clearly
erroneous, and whether the district court's conclusions
of law are correct. State v. Evert, 2007 MT 30,
¶ 12, 336 Mont. 36, 152 P.3d 713.
Potter's second petition for postconviction relief once
again claims ineffective assistance of counsel, this time
alleging his attorney failed to address how the relationship
between Potter and the victim was relevant to the sentencing,
and failed to call an expert witness to discuss how
Potter's relationship with the victim impacted his
emotional state. The State argues Potter's petition fails
to state a claim for relief and that we should affirm the
District Court's dismissal of Potter's petition. We
Petitions for postconviction relief must be based on
something more than "mere conclusory allegations."
Kelly v. State, 2013 MT 21, ¶ 9, 368 Mont. 309,
300 P.3d 120. Section 46-21-104, MCA, details the
requirements for a petition for postconviction relief:
(1) The petition for postconviction relief must:
(a) identify the proceeding in which the petitioner was
convicted, give the date of the rendition of the final
judgment complained of, and clearly set forth the alleged
violation or violations;
(b) identify any previous proceedings that the petitioner may
have taken to secure relief ...