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Eva v. State

Supreme Court of Montana

January 16, 2018

RAYMOND EVA, Petitioner and Appellant,
STATE OF MONTANA, Respondent and Appellee.

          Submitted on Briefs: October 11, 2017

         District Court of the Second Judicial District, In and For the County of Butte/Silver Bow, Cause No. DV-16-411 Honorable Ray Dayton, Presiding Judge.

          For Appellant: Raymond Eva, self-represented; Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General; Eileen Joyce, Butte-Silver Bow County Attorney; Butte, Montana


          Dirk Sandefur, Justice

         ¶1 Pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, we decide this case by memorandum opinion, which 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 Raymond Eva (Eva) appeals the order of the Montana Second Judicial District Court, Silver Bow County, denying and dismissing his petition for postconviction relief. We affirm.

         ¶3 On May 26, 2004, Eva pled guilty to two counts of Sexual Intercourse Without Consent and two counts of felony Sexual Assault. The District Court sentenced him to concurrent thirty-year terms of commitment to Montana State Prison (MSP) on each offense, with twenty years suspended. After serving nine years, Eva discharged on September 13, 2013, to serve the suspended portion of his concurrent sentences on supervised probation.

         ¶4 On December 7, 2015, Eva's supervising probation officer filed a Report of Violation alleging that Eva violated the terms of his probation by: (1) associating with a known offender without permission; (2) communicating with minors via social media; (3) having sexual contact with three juveniles; (4) viewing pornography on a smart phone and computer; and (5) being terminated from required sex offender treatment. At his answer hearing on May 19, 2016, Eva admitted to all allegations except for the alleged sexual contact with a 15-year-old boy. Inter alia, Eva admitted to opening his home to his friend and fellow probationer, Anthony Valenzuela; communicating with persons on social media who he later discovered to be minors; having sexual contact with two male juveniles aged 16 and 17 years; and viewing certain pornographic materials on a computer and cell phone. Based on these admissions, the District Court revoked the suspended portion of Eva's sentences and resentenced him to MSP for the remainder of the thirty-year concurrent terms on each of his felony convictions.

         ¶5 On November 29, 2016, Eva filed a petition for postconviction relief together with a request for appointment of counsel. As grounds for his petition, Eva alleged that: (1) probation officers illegally searched his home; (2) he received ineffective assistance of counsel regarding his probation revocation proceeding based on counsel's failure to move for suppression of pornography seized from his home, failure to assert that Eva was not in possession of the pornography because officers found it on only on Valenzuela's computer and phone, and failure to obtain copies of the pornography prior to sentencing; (3) the State illegally failed to disclose benefits allegedly provided to State's witnesses in return for their testimony against Eva; (4) the District Court illegally altered his sentence by changing his Department of Corrections (DOC) commitment to an MSP commitment; and (5) his revocation and resentencing constituted double jeopardy. Pursuant to § 46-21-201(1)(a), MCA, the District Court ordered a State response to Eva's petition. Upon consideration of Eva's petition and the State's response, the District Court denied and dismissed the petition without a hearing on the ground that the petition failed to sufficiently state a cognizable claim for postconviction relief by a preponderance of the evidence. Eva timely appeals. We affirm.

         ¶6 The standard of review of a district court's denial of a postconviction petition is whether the court's findings of fact are clearly erroneous and whether its conclusions of law are correct. Beach v. State, 2009 MT 398, ¶ 14, 353 Mont. 411, 220 P.3d 667; Hirt v. State, 2009 MT 116, ¶ 24, 350 Mont. 162, 206 P.3d 908. We review discretionary decisions, including rulings as to whether to conduct an evidentiary hearing, for an abuse of discretion. Marble v. State, 2015 MT 242, ¶ 13, 380 Mont. 366, 355 P.3d 742; Beach, ¶ 14. Ineffective assistance of counsel claims present mixed questions of fact and law reviewed de novo for correctness. Hirt, ¶ 24.

         ¶7 A person convicted "of an offense in a court of record who has no adequate remedy of appeal and claims" that his conviction occurred in violation of a constitutional right or that the person was subject to an improper revocation, or received an illegal sentence, may petition the court to vacate or correct the judgment of conviction or sentencing order. Sections 46-21-101(1) and -103, MCA. The petitioner has the burden of showing that the asserted facts warrant the requested relief by a preponderance of the evidence. Heath v. State, 2009 MT 7, ¶ 16, 348 Mont. 361, 202 P.3d 118; Ellenburg v. Chase, 2004 MT 66, ¶ 12, 320 Mont. 315, 87 P.3d 473; State v. Cobell, 2004 MT 46, ¶ 12, 320 Mont. 122, 86 P.3d 20. To that end, the petitioner must assert postconviction claims by verified petition:[1](1) "clearly set[ting] forth the alleged violation"; (2) specifically "identify[ing] all facts supporting the [asserted] grounds for relief set forth in the petition" with "attached affidavits, records, or other evidence establishing the existence of those facts"; and (3) "accompanied by a supporting memorandum, including appropriate arguments and citations and discussion of authorities." Sections 46-21-103 and -104(1)(a), (c) and (2), MCA.[2] Unsupported conclusory allegations of fact and law are insufficient. See Herman v. State, 2006 MT 7, ¶ 49, 330 Mont. 267, 127 P.3d 422; Ellenburg, ¶ 16.[3] A postconviction petition is subject to summary dismissal for non-compliance with these threshold requirements or if the petition and court record "conclusively show that petitioner is not entitled to relief." Herman, ¶¶ 15, 38; see also §§ 46-21-104 and -201(1)(a), MCA.

         ¶8 If the petition and court record do not "conclusively show that the petitioner is not entitled to relief, " the court must order the State to file a responsive pleading. Section 46-21-201(1)(a), MCA.[4] Upon review of the petition, State's response, and court record, "the court may then dismiss the petition as a matter of law for failure to state a claim for relief" by a preponderance of the evidence. Section 46-21-201(1)(a), MCA; Herman, ¶¶ 38, 45, 49.[5] The court may conduct a hearing to "to determine the issue" but a hearing is not required except under "unique circumstances" where necessary to resolve genuine issues of non-record material fact manifest on the face of the pleadings and court record. Section 46-21-201(1)(a) and (5), MCA; Heath, ¶¶ 21-24; Herman, ¶¶ 38, 49-51; Cobell, ¶ 12.[6]

         ¶9 Here, Eva's asserted claims of ineffective assistance of counsel and the State's unlawful failure to disclose benefits allegedly provided to the State's witnesses are fact-dependent claims. However, Eva did not file a verified petition as required by § 46-21-103, MCA, and did not support his petition with affidavits, records, or other evidence as required by § 46-21-104(1)(c), MCA. Eva's petition is similarly devoid of legal analysis and supporting authority demonstrating that probation officers illegally searched his home, that the District Court improperly revoked his sentence or imposed an illegal sentence on resentencing, or that the revocation and ...

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