Submitted on Briefs: May 10, 2017
FROM: District Court of the Fifth Judicial District, In and
For the County of Jefferson, Cause No. DV 2016-24 Honorable
Loren Tucker, Presiding Judge
Appellant: Mike Chilinski (Self-Represented), Helena, Montana
Appellee: Timothy C. Fox, Montana Attorney General, Katie F.
Schulz, Assistant Attorney General, Helena, Montana, Steven
C. Haddon, Jefferson County Attorney, Boulder, Montana
Michael E Wheat 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
Mike Chilinski (Chilinski) appeals from the September 14,
2016 order of the Fifth Judicial District Court, Jefferson
County, denying his petition for postconviction relief (PCR).
In October 2012, a jury convicted Chilinski of 91 counts of
animal cruelty and the District Court sentenced him to the
Department of Corrections for 30 years with 25 years
suspended. Chilinski filed an appeal with the Montana Supreme
Court and, on August 5, 2014, this Court affirmed his
conviction in State v. Chilinski, 2014 MT 206, 376
Mont. 122, 330 P.3d 1169.
On March 8, 2016, Chilinski filed a PCR petition with the
District Court, alleging errors including ineffective
assistance of counsel (IAC) and error in the
prosecution's failure to disclose material evidence. On
September 14, 2016, the court dismissed the petition, finding
that his claim was barred under § 46-21-105(2), MCA, and
further concluding that his IAC claim substantively failed
under the two-part test set forth in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984).
Chilinski now appeals the District Court's denial of his
We review a district court's denial of a PCR petition to
determine if the court's findings of fact are clearly
erroneous and if its conclusions of law are correct.
McGarvey v. State, 2014 MT 189, ¶ 14,
375 Mont. 495, 329 P.3d 576. We review de novo a district
court's interpretation and application of a statute.
Dick Irvin, Inc. v. State, 2013 MT 272, ¶ 18,
372 Mont. 58, 310 P.3d 524.
Section 46-21-105(2)-(3), MCA, provides, in relevant part:
(2) When a petitioner has been afforded the opportunity for a
direct appeal of the petitioner's conviction, grounds for
relief that were or could reasonably have been raised on
direct appeal may not be raised, considered, or decided in a
proceeding brought under this chapter. Ineffectiveness or
incompetence of counsel in proceedings on an original or an
amended original petition under this part may not be raised
in a second or subsequent petition under this part.
(3) For purposes of this section, "grounds for
relief" includes all legal and factual issues that were
or could have been raised in support of the petitioner's
claim for relief.
In this case, Chilinski was afforded the opportunity for a
direct appeal and previously raised three alleged errors in
this Court, based on the same trial record he relies upon
here. The trial record does not provide any new legal or
factual issues that could not have been reasonably discovered
and raised in the petitioner's direct appeal. As such, we
conclude that the District Court did not err in finding that
Chilinski's claims for relief are based on asserted error
that was evident on the trial record and thus could and
should have been raised on direct appeal. Furthermore, while
Chilinski asks us in his reply brief to exercise plain error
review in this case, he does not allege any newly discovered,
exculpatory evidence to warrant such review.
As for Chilinski's IAC claims, it is apparent from the
District Court's order that the court carefully reviewed
and analyzed his claims under the relevant law, and reached
legally supported conclusions. Consequently, the court did
not err in denying Chilinski's PCR petition on IAC
grounds. Having reviewed the issues, the District Court's