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Parks v. Montana Fourth Judicial District Court

Supreme Court of Montana

March 20, 2018

TERRY PARKS, Petitioner,
v.
MONTANA FOURTH JUDICIAL DISTRICT COURT, MISSOULA COUNTY, DEPT. 4, JUDGE KAREN S. TOWNSEND, PRESIDING, Respondent.

          ORDER

         Terry Parks has filed a petition for a writ of supervisory control, contending that the Missoula County District Court has not properly addressed his petition for postconviction relief (PCR) over the last twenty-two months. He requests that this Court take control of his proceeding.

         This Court is familiar with Parks' underlying criminal matter. In 2011, a jury found Parks guilty of three violations of § 30-10-301(1)(b), MCA, concerning fraudulent securities transactions. The Missoula County District Court sentenced Park to three consecutive ten-year terms with twenty years suspended. Parks appealed. State v. Parks, 2013 MT 280, 372 Mont. 88, 310 P.3d 1088 (Parks I). This Court affirmed as to one conviction and reversed the other two convictions. Parks I, ¶ 36. We remanded the matter to the District Court for resentencing. In November 2013, the District Court resentenced Parks to a ten-year prison term with five years suspended. Parks appealed that decision. State v. Parks, 2015 MT 32N, 378 Mont. 538, 348 P.3d 671 (table) (Parks II). We affirmed. Parks II, ¶ 9.

         In his instant petition for relief, Parks maintains that his "current PCR case has wrongfully, needlessly and deliberately languished in the Subject Court for 22 months to this point." He states that he initially filed his petition for PCR on May 3, 2016. At that time. Parks also filed a notice of filing and a request for state-appointed counsel. Parks raises many issues concerning his PCR petition, his original conviction, and re-sentencing. He argues that the court erred by not appointing counsel in his PCR proceedings and that the court appears more lenient with the State and more protective of his previous counsel in its Orders. He includes thirty exhibits with his petition for supervisory control, including a March 6, 2018 copy of the District Court's case register or docket.

         Supervisory control is an extraordinary remedy. This Court may exercise its supervisory power over all other courts on a case-by-case basis. M. R. App. P. 14(3).

This extraordinary remedy can be invoked when the case involves purely legal questions and urgent or emergency factors make the normal appeal process inadequate. M. R. App. P. 14(3); ... . The case must meet one of three additional criteria: (a) the other court is proceeding under a mistake of law and is causing a gross injustice; (b) constitutional issues of state-wide importance are involved; or (c) the other court has granted or denied a motion for substitution of a judge in a criminal case. M. R. App. P. l4(3)(a)-(c).

State v. Spady, 2015 MT 218, ¶ 11, 380 Mont. 179, 354 P.3d 590 (internal citation omitted).

         Contrary to Parks's assertions, there has been much activity in his District Court proceeding. After Parks filed his initial petition, on May 19, 2016, the District Court issued an Order noting that his petition was not verified and was not served upon counsel for the State of Montana. The court denied his request for appointment of counsel and imposed a thirty-day deadline to file and serve his amended petition in conformance with § 46-21 -104, MCA. Parks filed an Amended Original Petition for PCR on June 20, 2016. He subsequently filed three requests for status of PCR procedure in September, October, and November 2016. The court issued an interim order on November 4, 2016, and explained that the court cannot give legal advice or answer his questions whether anything is "amiss or lacking . . . ." The court also noted that his PCR petition was also not verified, pursuant to § 46-21-103, MCA, and imposed a ten-day deadline. On November 14, 2016, Parks filed a "Verified Amended Petition for Post-Conviction Relief." The State filed a notice of appearance on March 3, 3017, and the court issued an order setting a briefing schedule.

         In May 2017, the State requested and received additional time to respond to Parks's petition. The State also moved the court for an Order protecting defense counsel, who at that time had moved out of state and had not been located. The State filed its response to Parks's petition on August 17, 2017, and Parks filed his reply on September 1, 2017. Over the next several months, Parks also filed other documents: a Motion to Order Placement of Petitioner's Good Faith 2011 Pro Se Motion and Brief on the Record, Preserving Claims; a Petition for Timely, Just and Fair Disposition of My August 25 Motion and Grant for PCR Proceedings; and a Notice of Petitioner's Conditional Intent to Petition the Montana Supreme Court to Exercise Supervisory Control. In the court's most recent Orders of January 9, 2018, the court gave the State and previous defense counsel more time to respond and preserved the Office of Public Defender from disciplinary or malpractice claims. Parks filed a response to these Orders.

         Parks's petition does not justify this extraordinary remedy. There are no specific timelines or deadlines in the statutes for postconviction relief. Section 46-21-103, MCA, provides that "[t]he proceeding for relief under 46-21-101 must be commenced by filing a verified petition with the clerk of the appropriate court. The clerk shall docket the petition upon its receipt and bring the petition promptly to the attention of the court." Parks filed his verified petition in November 2016, and the matter was brought to the court's attention. This matter is still proceeding, and after the court receives all responses, it will issue a decision. We conclude that Parks has not demonstrated that the District Court is proceeding under a mistake of law, which imparls a gross injustice, or that urgency or emergency factors exist. Spady, ¶ 11; M. R. App. P. 14(3). Therefore, IT IS ORDERED that Parks's Petition for a Writ of Supervisory Control is DENIED.

         The Clerk is directed to provide a copy of this Order to the Hon. Karen Townsend, Fourth Judicial District Court, Missoula County; to ...


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