JAMES MICHAEL STEWART. Petitioner and Appellant,
STATE OF MONTANA, Respondent and Appellee.
Submitted on Briefs: May 30, 2018
FROM: District Court of the Thirteenth Judicial District, In
and For the County of Yellowstone, Cause No. DV 17-0422
Honorable Mary Jane Knisely, Presiding Judge
Appellant: James Michael Stewart, Self -Represented, Deer
Appellee: Timothy C. Fox, Montana Attorney General, Jonathan
M. Krauss, Assistant Attorney General, Helena, Montana, Scott
Twito, Yellowstone County Attorney, Robert Spoja, Deputy
County Attorney, Billings, 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
James M. Stewart (Stewart) appeals the denial of his petition
and associated motions for post-conviction relief. We affirm.
Stewart was arrested on August 3, 2013, after leading
officers on a high-speed chase in Yellowstone County. Stewart
was charged with five crimes; he posted bond and was
released. Nine days later, Stewart was arrested in
Butte-Silver Bow County for Partner or Family Member Assault
(PFMA). Unable to post bond, Stewart remained in the
Butte-Silver Bow County jail. On April 21, 2015, a
Yellowstone County jury found Stewart guilty of operating a
motor vehicle with an alcohol concentration of 0.08% or
higher, a felony, in violation of § 61-8-406, MCA, and
the misdemeanor offense of eluding a peace officer. He was
designated a persistent felony offender (PFO), and sentenced
to ten years in the Montana State Prison with five years
suspended. Stewart appealed, arguing he was denied a speedy
trial; this Court affirmed his conviction. State v.
Stewart, 2017 MT 32, 386 Mont. 315, 389 P.3d 1009.
Stewart then filed a petition for post-conviction relief in
which he asserted three grounds for relief in the District
Court. Stewart filed numerous other motions or supporting
documents over the next few months regarding his claims.
Ultimately, Stewart asserted claims for post-conviction
relief on five subjects: 1) ineffective assistance of
counsel, 2) speedy trial violation, 3) failure to withdraw
guilty plea, 4) misapplication of PFO sentencing statutes,
and 5) miscalculation of credit for time served prior to
sentencing. The District Court denied the claims without a
On appeal, Stewart's issues can be boiled down to two
arguments. He asserts his counsel was ineffective for failing
to object to what he perceives to have been an illegal
sentence. He argues his sentence with regard to Count III,
Operation of a Motor Vehicle by a Person with alcohol
Concentration of 0.08% or More, to ten (10) years to the
Montana State Prison with five (5) years suspended, does not
comport with § 61-8-731, MCA. And, he raises a new claim
of a constitutionally infirm prior DUI conviction.
A postconviction claim that could have been raised in the
district court cannot be raised for the first time on appeal.
State v. Sanders, 2004 MT 374, ¶ 14, 325 Mont.
59, 103 P.3d 1053. Stewart did not raise his claim of a
constitutionally infirm prior DUI in the District Court, and
therefore we will not consider it.
We review denial of a petition for post-conviction relief to
determine whether the District Court's findings of fact
are clearly erroneous and whether its conclusions of law are
correct. Whitlow v. State, 2008 MT 140, ¶ 9,
343 Mont. 90, 183 P.3d 861. Claims of ineffective assistance
of counsel must be grounded in facts and not merely
conclusory allegations. State v. Finley, 2002 MT
288, ¶ 9, 312 Mont. 493, 59 P.3d 1132.
With regard to Stewart's claim of an illegal sentence, it
appears he misapprehends PFO designation and its sentencing
implications. PFO designation is a mandatory sentencing
enhancement which is applicable to sentencing in felony DUIs.
State v. Kime, 2013 MT 14, ¶¶ 13-16, 368
Mont. 261, 295 P.3d 580. The District Court properly found
Stewart met the definition of a PFO under § 46-18-501,
MCA (1977), and the court was bound by § 46-18-502, MCA,
to sentence him as a PFO. The sentence imposed by the
District Court was legal. Therefore, counsel's failure to
object to the valid, legal sentence imposed was not
ineffective assistance of counsel.
We have determined to decide this case pursuant to Section I,
Paragraph 3(c) of our Internal Operating Rules, which
provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled ...