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Pierce v. State

Supreme Court of Montana

May 28, 2019

ROBERT S. PIERCE, Petitioner and Appellant,
v.
STATE OF MONTANA, Respondent and Appellee.

          Submitted on Briefs: March 27, 2019

          APPEAL FROM: District Court of the Third Judicial District, In and For the County of Anaconda-Deer Lodge, Cause No. DV-17-59 Honorable Brad Newman, Presiding Judge.

          For Appellant: Robert S. Pierce, Self-Represented, Deer Lodge, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana.

          Ben Krakowka, Anaconda-Deer Lodge County Attorney, Anaconda, Montana.

          Daniel Guzynski, Mary Elizabeth Cochenour, Special Deputy County Attorneys, Helena, Montana

          OPINION

          MIKE McGRATH CHIEF JUSTICE.

         ¶1 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 Montana Reports.

         ¶2 Robert S. Pierce appeals from an order of the Third Judicial District Court, Anaconda-Deer Lodge County, denying his petition for postconviction relief. We affirm.

         ¶3 On April 25, 2013, a jury convicted Pierce of sexual intercourse without consent and sexual assault involving his step-granddaughter, M.R., who was nine years old when the first offense occurred. Pierce was sentenced to forty years in prison, with fifteen years suspended for the rape, and twenty-five years in prison for the sexual assault, to run concurrently. On July 6, 2017, Pierce filed a pro se petition for postconviction relief, asserting twelve independent grounds for relief. The District Court denied Pierce's petition and request for appointment of counsel. Pierce appeals.

         ¶4 This Court reviews 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 correct. Marble v. State, 2015 MT 242, ¶ 13, 380 Mont. 366, 355 P.3d 742. Discretionary rulings in postconviction relief proceedings, including rulings related to whether to hold an evidentiary hearing, are reviewed for an abuse of discretion. Marble, ¶ 13. Claims of ineffective assistance of counsel constitute mixed questions of law and fact that we review de novo. Weaver v. State, 2005 MT 158, ¶ 13, 327 Mont. 441, 114 P.3d 1039.

         ¶5 A person adjudged guilty of an offense who has no adequate remedy of appeal may petition the court for postconviction relief pursuant to § 46-21-101, MCA, alleging the sentence violates "the constitution or the laws of this state or the constitution of the United States." A person seeking postconviction relief bears the burden to show, by a preponderance of the evidence, that the facts justify relief. Griffin v. State, 2003 MT 267, ¶ 10, 317 Mont. 457, 77 P.3d 545. A postconviction petition must identify all facts supporting the grounds for relief set forth in the petition and have attached affidavits, records, or other evidence establishing the existence of those facts. Section 46-21-104(1)(c), MCA. Mere conclusory allegations are insufficient to support a petition. Marble, ¶ 38.

         ¶6 The first issue raised on appeal is whether the District Court erred in denying Pierce's claim of actual innocence based on Pierce's failure to sufficiently plead the claim and provide evidentiary support. To prevail on a substantive actual innocence claim, the petitioner must first show by clear and convincing evidence that, but for a procedural error, no reasonable juror would have found him or her guilty of the offense. Beach v. State, 2009 MT 398, ¶ 44, 353 Mont. 411, 220 P.3d 667.[1]

         ¶7 To support his claim of actual innocence, Pierce argues: (1) documents from his post-trial civil case demonstrate Pierce was wrongfully convicted; (2) a law enforcement officer, Bill Sather, impermissibly disclosed information to the media; (3) the victim's mother and Sather conspired to get Pierce convicted; (4) the transcripts of M.R.'s pretrial interviews were deemed inadmissible but then improperly considered by the therapist conducting the psychosexual offender evaluation; and (5) the therapist determined that Pierce did not ...


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