BRIAN D. SMITH, Petitioner and Appellant,
STATE OF MONTANA, Respondent and Appellee.
Submitted on Briefs: April 4, 2018
FROM: District Court of the Fourth Judicial District, In and
For the County of Missoula, Cause No. DV-16-698 Honorable
Leslie Halligan, Presiding Judge
Appellant: Brian D. Smith, Self-Represented, Shelby, Montana
Appellee: Timothy C. Fox, Montana Attorney General, C. Mark
Fowler, Assistant Attorney General, Helena, Montana
Kirsten H. Pabst, Missoula County Attorney, Suzy Boylan,
Deputy County Attorney, Missoula, Montana
MCGRATH CHIEF 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
Brian Smith (Smith) appeals pro se from a Fourth Judicial
District Court order denying Smith's petition for
postconviction relief. We affirm.
On April 3, 2011, Smith assaulted his girlfriend with a
hammer, resulting in permanent damage. Following his arrest,
an attorney was appointed to represent him. Ultimately, Smith
pled guilty to aggravated assault, a felony, and signed a
standard Plea of Guilty and Waiver of Rights Form. On May 21,
2012, the District Court sentenced Smith to twenty years in
the Montana State Prison, without parole.
On June 1, 2012, Smith filed a motion to withdraw his guilty
plea. The District Court denied the motion on July 26, 2012.
Smith requested a hearing before the Sentence Review Board.
Shortly after a hearing was scheduled, it was cancelled
because Smith informed the Board that he was in the process
of filing for postconviction relief. It was not until years
later, on August 16, 2016, that he filed a petition for
postconviction relief. The District Court denied Smith's
petition on February 14, 2017, because it was time-barred
pursuant to § 46-21-102, MCA. Smith appeals, arguing he
is entitled to postconviction relief because although his
petition was not timely, he has discovered new evidence in
This Court reviews a district court's denial of a
petition for postconviction relief to determine whether the
district court's findings of fact are clearly erroneous
and its conclusions of law are correct. Robinson v.
State, 2010 MT 108, ¶ 10, 356 Mont. 282, 232 P.3d
403. We review discretionary rulings in postconviction relief
proceedings, including rulings related to whether to hold an
evidentiary hearing, for an abuse of discretion. Heath v.
State, 2009 MT 7, ¶ 13, 348 Mont. 361, 202 P.3d
A postconviction relief petition is time-barred if it is not
filed within one year of the date that the conviction becomes
final. Section 46-21-102(1), MCA. A conviction becomes final
when (1) the time for appeal to the Montana Supreme Court
expires; (2) if an appeal is taken to the Montana Supreme
Court, the time for petitioning the United States Supreme
Court for review expires; or (3) if review is sought in the
United States Supreme Court, on the date that that court
issues its final order in the case. Section 46-21-102(1),
MCA. Smith did not appeal his conviction to this Court.
Therefore, his conviction was final in July of 2012. Smith
filed the current petition over four years later in August
2016, clearly outside the one-year time limitation. The
petition for postconviction relief is statutorily
However, a petitioner may have more time to file if
newly-discovered evidence establishes that the petitioner did
not engage in the criminal conduct for which he was
convicted. Section 46-21-102(2), MCA; see State v.
Rosales, 2000 MT 89, ¶ 7, 299 Mont. 226, 999 P.2d
313 (holding that the "miscarriage of justice
exception" applies to postconviction claims if the
defendant alleges newly-discovered evidence that establishes
the defendant did not commit the offense). Smith alleges that
he has discovered new evidence in his case. In his opening
brief, Smith states that he received proof on January 13,
2017, that his trial counsel never obtained the medical
record pertaining to Smith's first suicide attempt, which
occurred before he committed the assault and would support an
affirmative defense of mental incapacity. Smith alleges that
he would have requested a jury trial and not pled guilty had
he known about the possibility of pursuing a mental
The evidence asserted by Smith is not newly discovered.
Further, this evidence does not establish Smith's actual
innocence. See State v. Graham, 2002 MT 237, ¶
12, 311 Mont. 500, 57 P.3d 54 (holding that "For a
petitioner to prove actual innocence he must do more than
show that a reasonable doubt exists in the light of the new
evidence, but rather that no reasonable juror would have
found the defendant guilty."). Smith does not assert
that he did not know of the existence of his medical record.
The record that he alleges is new pertains to his own medical
treatment and evaluation; he would have known of its
existence prior to the date he made his guilty plea. The fact
that Smith was ...