NICOLE LEANNE KENT, a/k/a NICOLE LEANNE LINDBLOM, Petitioner and Appellant,
STATE OF MONTANA, Respondent and Appellee.
Submitted on Briefs: July 12, 2017
Decided: July 12, 2017
From District Court of the First Judicial District, In and
For the County of Lewis And Clark, Cause No. CDV-2017-299
Honorable Kathy Seeley, Presiding Judge
Appellant: Colin M. Stephens, Nick Kirby Brooke, Smith &
Stephens, P.C., Missoula, Montana
Appellee: Timothy C. Fox, Montana Attorney General, Ryan
Aikin, Assistant Attorney General, Helena, Montana Leo
Gallagher, Lewis and Clark County Attorney, Helena, 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
Nicole Kent (Kent) appeals the Montana First Judicial
District Court's order denying her petition for
postconviction relief. We affirm.
Kent is a Canadian citizen who has lived in Helena, Montana,
since childhood. In May 2014 Kent was charged with multiple
felony and misdemeanor drug-related criminal violations.
Pursuant to a plea agreement, Kent pled guilty to three of
the felony charges: possession of dangerous drugs, possession
with intent to distribute, and child endangerment. All
remaining charges were dismissed. In November 2014 Kent was
sentenced to three concurrent, five-year commitments to the
Department of Corrections (DOC), with two years suspended,
and transferred to the "Passages" chemical
dependency treatment facility in Billings. Either prior to,
or shortly after, her sentencing hearing, Kent was visited by
an agent from Homeland Security who placed an immigration
detainer on her. After her transfer to Billings she was
interviewed by another federal agent regarding immigration.
On January 11, 2017, Kent was paroled and released into the
custody of federal immigration authorities, and shortly
thereafter she was transferred to an immigration holding
facility in Tacoma, Washington. In Tacoma, Kent met with an
attorney who advised that one of the consequences of her
guilty plea to the felony drug distribution offense was
mandatory deportation. Thereafter, on April 20, 2017, Kent
filed a petition for postconviction relief on the grounds
that her attorney, who represented her during plea agreement
and sentencing, was ineffective because he failed to
investigate and advise her of the immigration consequences of
her guilty plea to a drug distribution offense. The District
Court denied the petition, without a hearing, on the grounds
that it was untimely and therefore procedurally barred. The
court further concluded that there was no basis for applying
an equitable tolling exception to the time bar.
Section 46-21-102(1), MCA, requires a petition for
postconviction relief be filed within one year of the date
the conviction becomes final. There was and is no dispute
that Kent failed to file her petition within one year. Thus,
the decisive issue for the District Court, and now this
Court, is whether the alleged ineffective assistance of
counsel claim triggered an "equitable tolling" of
the statute until Kent learned for certain that she was
subject to mandatory deportation. The District Court
summarized its reasons for rejecting Kent's claim of
equitable tolling as follows:
[T]he threshold consideration here is not whether Kent's
counsel was ineffective. Rather, the issue is whether her
claim of ineffective assistance is procedurally barred. . . .
[T]he circumstances in the instant case do not warrant a
tolling of the time bar. Kent knew early on that there may be
immigration consequences resulting from a criminal
conviction. She repeatedly informed her attorney that she was
concerned that a felony conviction would impact her
immigration and residency status. She states also that she
rejected one plea offer, fearing that a felony conviction
would result in deportation. Further, she was visited by a
Homeland Security agent in October 2014 who told her he was
placing an immigration detainer on her and informed her she
would have to appear before an immigration judge following
completion of her sentence.
Thus, Kent knew of the immigration detainer in October 2014.
Further, she recites meetings and communications from ICE in
late 2014. Nonetheless, she raised no ineffective assistance
claim until the instant case was filed in April 2017. . . .
[S]he provides no adequate explanation for the years of delay
in filing her petition for postconviction relief.
The [c]ourt concludes that application of the time bar in
this case does not work a clear miscarriage of justice so
obvious that it compromises the integrity of the judicial
process. (Citation omitted.)
We review a district court's denial of a petition for
postconviction relief to determine whether the court's
findings of fact are clearly erroneous and whether its
conclusions of law are incorrect. Marble v. State,
2015 MT 242, ¶ 13, 380 Mont. 366, 355 P.3d 742. We
review de novo a district court's decision not to apply
the doctrine of equitable tolling as it relates ...