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Potter v. State

Supreme Court of Montana

May 23, 2017

ALLEN J. POTTER, Petitioner and Appellant,
v.
STATE OF MONTANA, Respondent and Appellee.

          Submitted on Briefs: April 5, 2017

         District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV-16-342 Honorable John W. Larson, Presiding Judge

          For Appellant: Allen James Potter, Self-Represented, Shelby, Montana.

          For Appellee: Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana Kirsten Pabst, Missoula County Attorney, Missoula, Montana.

          OPINION

          James Jeremiah Shea Justice.

         ¶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 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.

         ¶3 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.

         ¶4 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.

         ¶5 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 agree.

         ¶6 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 ...

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