Ellenburg v. Chase, 02-176

• Decision Date: 23 March 2004
• Docket Number: No. 02-176,02-176
• Citation: 2004 MT 66,87 P.3d 473,320 Mont. 315
• Parties: MICHAEL ELLENBURG, Petitioner and Appellant, v. DOUG CHASE, STATE OF MONTANA, et al., Respondents and Respondents.
• Court: Montana Supreme Court

2004 MT 66

320 Mont. 315

87 P.3d 473

MICHAEL ELLENBURG, Petitioner and Appellant, v. DOUG CHASE, STATE OF MONTANA, et al., Respondents and Respondents.

No. 02-176

Supreme Court of Montana.

Submitted on Briefs: August 29, 2002

Decided: March 23, 2004

For Appellant: Michael Ellenburg, pro se, Deer Lodge, Montana.

For Respondents: Hon. Mike McGrath, Montana Attorney General, Pamela P. Collins, Assistant Attorney General, Helena, Montana, Fred Van Valkenburg, Missoula County Attorney, Missoula, Montana.

Justice James C. Nelson delivered the Opinion of the Court.

¶ 1 Michael Ellenburg, acting pro se, appeals an order of the District Court for the Fourth Judicial District, Missoula County, denying his petition for postconviction relief. We affirm.

¶ 2 The issue on appeal, as framed by the State, is: Whether Ellenburg's petition for postconviction relief was properly denied.

Factual and Procedural Background

¶ 3 On October 14, 1997, Ellenburg, a licensed insurance agent, was charged by Information with three counts of felony theft, two counts of misdemeanor elder abuse and one count of felony forgery, all stemming from Ellenburg's misuse of an elderly client's funds. The facts surrounding the charges are set forth in State v. Ellenburg, 2000 MT 232, 301 Mont. 289, 8 P.3d 801.

¶ 4 At his arraignment on October 31, 1997, Ellenburg pleaded not guilty to the charges. On November 17, 1998, Ellenburg filed a motion to dismiss the charges under Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, based on a search of his residence in June 1997, resulting in the seizure of his business records, and for an alleged violation of his right to a speedy trial. After an evidentiary hearing on January 28, 1999, the District Court denied Ellenburg's motion.

¶ 5 Thereafter, Ellenburg moved to withdraw his not-guilty pleas and, pursuant to a plea agreement, Ellenburg pleaded guilty to two counts of felony theft and one count of felony forgery, reserving the right to appeal the District Court's denial of his motion to dismiss. In addition, Ellenburg waived the preparation of a pre-sentence investigative report and agreed to pay restitution.

¶ 6 The District Court sentenced Ellenburg to ten years at Montana State Prison on each of the felony theft charges and twenty years on the charge of felony forgery. The District Court ordered that the sentences run consecutively, but the court suspended the sentences for felony theft and five years of the sentence for felony forgery with conditions. The court also ordered that Ellenburg pay restitution in the amount of $136,635.

¶ 7 Ellenburg appealed the denial of his motion to dismiss the charges, but we affirmed the judgment of the District Court in August 2000. Ellenburg, ¶¶ 44, 57.

¶ 8 On July 25, 2001, Ellenburg filed a petition for postconviction relief in the District Court along with a supporting brief. The court denied the petition on March 4, 2002, concluding that the only claim raised by Ellenburg that was not precluded by a procedural bar or his guilty plea was Ellenburg's claim of ineffective assistance of counsel for counsel's failure to introduce Ellenburg's medical and psychological records to mitigate his sentence. As to that claim, the court concluded that Ellenburg received exactly the sentence he bargained for, therefore, Ellenburg was not prejudiced by counsel's failure to introduce his records.

¶ 9 Ellenburg now appeals the District Court's denial of his petition for postconviction relief .

Standard of Review

¶ 10 We review a district court's denial of a petition for postconviction relief to determine whether its findings are clearly erroneous and whether it correctly interpreted the law. Dawson v. State, 2000 MT 219, ¶ 18, 301 Mont. 135, ¶ 18, 10 P.3d 49, ¶ 18, cert. denied, 532 U.S. 928, 121 S.Ct. 1372, 149 L.Ed.2d 299 (2001).

Discussion

¶ 11 Relying on Rule 12(b)(6), M.R.Civ.P., and various cases interpreting that Rule, Ellenburg asserts on appeal that the standard for dismissing a postconviction petition without a hearing is identical to the standard for dismissing a civil complaint based on the pleadings alone. Thus, he asserts that in considering his motion to dismiss, we must construe his petition in the light most favorable to him and that all allegations of fact contained in the petition must be taken as true. However, in its brief on appeal, the State points out that Ellenburg's assertions are incorrect because Rule 12(b)(6) is inconsistent with the specific pleading and proof provisions of the postconviction petition statutes.

¶ 12 The Rules of Civil Procedure apply to postconviction relief petitions only if they are consistent with the specific provisions of the postconviction statutes. Section 46-21-201(1)(c), MCA. Unlike civil complaints, the postconviction statutes are demanding in their pleading requirements. Section 46-21-104, MCA, sets forth what a postconviction petition must contain:

(1) The petition for postconviction relief must:

(a) identify the proceeding in which the petitioner was convicted, give the date of the rendition of the final judgment complained of, and clearly set forth the alleged violation or violations;

. . . .

(c) 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. [Emphasis added.]

And, § 46-21-104(2), MCA, provides that a petition must be accompanied by a supporting memorandum, including appropriate arguments and citations and discussion of authorities.

Additionally, a postconviction petitioner has the burden of proving by a preponderance of the evidence that he or she is entitled to relief. State v. Peck (1993), 263 Mont. 1, 3-4, 865 P.2d 304, 305. Thus, contrary to Ellenburg's assertions, because the testing of the sufficiency of postconviction claims is directed by the more specific provisions of the postconviction statutes, the traditional civil law standards for testing the sufficiency of claims is unavailable to postconviction petitioners.

¶ 13 Whether Ellenburg's petition for postconviction relief was properly denied.

¶ 14 Ellenburg raises several issues on appeal, some of which he raised in his petition for postconviction relief in the District Court and some of which he did not. This Court has stated on numerous occasions that it will not review issues that were not preserved for appeal in the district court. State v. Schmalz, 1998 MT 210, ¶¶ 11-13, 290 Mont. 420, ¶¶ 11-13, 964 P.2d 763, ¶¶ 11-13; State v. Spotted Blanket, 1998 MT 59, ¶ 13, 288 Mont. 126, ¶ 13, 955 P.2d 1347, ¶ 13. As the State notes in its brief on appeal, the rule is the same in the civil context. Rule 2(a), M.R.App.P., provides that, in a civil case, the Court may review on appeal any decision of a district court that has been objected to within the meaning of Rule 46, M.R.Civ.P. (a party must make known to the trial court, at the time the ruling is made or sought, the party's objection to the action and the grounds therefor).

¶ 15 Ellenburg claims that counsel failed to advise him about his right to appeal and failed to take the necessary steps to perfect the appeal. Because Ellenburg did not raise this issue in the District Court, he is barred from raising it on appeal. Schmalz, ¶¶ 11-13; Spotted Blanket, ¶ 13. Nevertheless, Ellenburg was not prejudiced by counsel's alleged failure in this regard because Ellenburg did, in fact, appeal his conviction. See State v. Ellenburg, 2000 MT 232, 301 Mont. 289, 8 P.3d 801.

¶ 16 Ellenburg also claims that the State misrepresented evidence and introduced false and misleading evidence at sentencing. Once again, because Ellenburg failed to raise this issue in the District Court, he is barred from raising it on appeal. Schmalz, ¶¶ 11-13; Spotted Blanket, ¶ 13. Even so, a petition for postconviction relief must be based on more than mere conclusory allegations. It 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." State v. Wright, 2001 MT 282, ¶ 9, 307 Mont. 349, ¶ 9, 42 P.3d 753, ¶ 9 (quoting § 46-21-104(1)(c), MCA). Here, Ellenburg fails to state what evidence was misrepresented or what the alleged false and misleading evidence was. Hence, even if Ellenburg had raised this issue in the District Court, he has waived his right to have this Court consider the issue because he failed to provide any evidentiary support for his allegations. Wright, ¶ 9.

¶ 17 Ellenburg further claims that the State breached the plea agreement, however, Ellenburg fails to indicate in what manner the plea agreement was breached. Once again, Ellenburg did not raise this issue in the District Court, but even if he had, he waived his right to have this Court consider the issue because he failed to provide any evidentiary support for his allegations. Wright, ¶ 9.

¶ 18 In addition, Ellenburg claims that trial counsel provided ineffective assistance because counsel failed to investigate and failed to present mitigating evidence. This claim is different than the ineffective assistance of counsel claim Ellenburg presented in the District Court. There, Ellenburg contended that counsel failed to introduce Ellenburg's medical and psychological records in mitigation. Here, Ellenburg contends that trial counsel failed "to adequately investigate and present mitigation evidence on his behalf" implying that some other mitigating evidence would have come to light had counsel adequately investigated. This Court has repeatedly held that a party may not change its theory on appeal from the one advanced in the district court. State v. Kober, 1999 MT 264, ¶ 11, 296 Mont. 425, ¶ 11, 989 P.2d 399, ¶ 11. Thus, we decline to review this argument further.

¶ 19 Even though several of the issues that Ellenburg now raises on appeal were raised in his postconviction...