Submitted on Briefs: October 30, 2019
District Court of the Eleventh Judicial District, In and For
the County of Flathead, Cause No. DV 18-058C Honorable Heidi
Ulbricht, Presiding Judge
Appellant: Brian Nauman, Self-Represented, Missoula, Montana
Appellee: Timothy C. Fox, Montana Attorney General, Tammy K
Plubell, Assistant Attorney General, Helena, Montana Travis
R. Ahner, Flathead County Attorney, Alison E. Howard, Deputy
County Attorney, Kalispell, 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 Nauman appeals an Eleventh Judicial District Court
order denying his petitions for postconviction relief. We
In January 2001, Nauman was convicted of felony Sexual
Assault (DC 99-063). On March 6, 2001, the court entered
written judgment. Nauman did not appeal his conviction,
instead, beginning in 2003, filed numerous postconviction
pleadings in district court, federal court, and this Court,
challenging his conviction and denial of parole. See,
e.g., Nauman v. State, No. OP 13-0061, 369 Mont. 540,
310 P.3d 1098 (table) (Feb. 12, 2013) (Nauman I).
All his petitions were denied. In 2011, the State filed a
petition to revoke Nauman's suspended sentence for
violating conditions of his sentence. In February 2012,
Nauman filed motions to suppress evidence obtained by his
probation officer. The District Court denied the motions,
revoking Nauman's suspended sentence. Nauman appealed. On
July 21, 2014, this Court affirmed the District Court.
State v. Nauman, No. DA 13-0010, 2014 MT 171N,
¶ 10, 2014 Mont. LEXIS 402 (Nauman II).
Also, in 2011, the State charged Nauman in District Court
with Failure to Register as a Sexual Offender (DC 11-403), a
felony. Nauman entered an Alford plea pursuant to a
plea agreement with the State, recommending Nauman for three
years to the Department of Corrections. The court accepted
the plea in a plea hearing; however, the court sentenced
Nauman to three years in the Montana State Prison. On appeal,
we reversed the judgment and remanded to the District Court
with instructions to enter a sentence consistent with the
plea agreement or allow Nauman to withdraw his guilty plea.
State v. Nauman, 2014 MT 248, ¶ 27, 376 Mont.
326, 334 P.3d 368 (Nauman III). Nauman moved to
withdraw his guilty plea, which the District Court denied as
untimely. Nauman filed a motion to reconsider. On October 23,
2014, the District Court filed a Second Amended Judgment and
Sentence in which it sentenced Nauman in accordance with the
plea agreement. Nauman did not appeal the
judgment. On November 28, 2014, the District Court
filed an Order and Rationale concluding, based on the date of
filing of the Second Amended Judgment, that Nauman's
motion to withdraw his guilty plea was timely, but that he
failed to establish good cause to withdraw his plea because
his Alford plea was knowing and voluntary. Nauman
appealed. On October 25, 2016, we affirmed the District Court
decision. State v. Nauman, No. DA 14-0812, 2016 MT
275N, ¶ 11, 2016 Mont. LEXIS 930 (Nauman IV).
On January 24, 2018, Nauman filed a pro se petition for
postconviction relief for both cause numbers. The District
Court concluded that Nauman's postconviction petition for
DC 99-063 was time-barred by the Montana Post-Conviction
Hearing Act one-year statute of limitations. The court further
concluded that Nauman's petition for DC 11-403 was timely
filed, basing the statute of limitations as commencing 90
days following this Court's October 2016 decision on
Nauman's motion to withdraw his guilty plea. However, the
District Court denied Nauman's petition for failure to
state a claim for relief. Nauman appeals the District
Court's dismissal of his petition for postconviction
relief for both cause numbers.
We review a district court's denial of postconviction
relief to determine whether the court's findings of fact
are clearly erroneous and whether its conclusions of law are
correct. State v. Placzkiewicz, 2001 MT 254, ¶
10, 307 Mont. 189, 36 P.3d 934. We review a lower court's
discretionary ruling in postconviction relief proceedings for
an abuse of discretion. State v. Price, 2006 MT 79,
¶ 17, 331 Mont. 502, 134 P.3d 45.
When a defendant does not file a direct appeal, his
conviction becomes final upon expiration of his time for
filing. Daniels, ¶ 11. A petitioner must file a
petition for postconviction relief within one year of the
date his conviction became final. Section 46-21-102(1), MCA.
The statute does not allow for tolling of the one-year time
period by filing a motion to withdraw a guilty plea after the
one-year time period begins to run. Peterson v.
State, 2017 MT 165, ¶ 11, 388 Mont. 122, 398 P.3d
Nauman did not directly appeal either charge. Consequently,
DC 99-063 became final on May 7, 2001, and DC 11-403 became
final on December 22, 2014. Daniels, ¶ 11.
Nauman had one year from these dates, pursuant to §
46-21-102(1), MCA, to file a petition for postconviction
relief Accordingly, Nauman's petitions, filed
in January 2018, are time-barred. The District Court did not
err in denying Nauman's petitions for postconviction
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 ...