State v. Gollehon

• Decision Date: 21 December 1995
• Docket Number: No. 95-316,95-316
• Citation: 274 Mont. 116,906 P.2d 697
• Parties: STATE of Montana, Plaintiff and Respondent, v. William GOLLEHON, Defendant and Appellant.
• Court: Montana Supreme Court

Page 697

906 P.2d 697

274 Mont. 116

STATE of Montana, Plaintiff and Respondent, v. William GOLLEHON, Defendant and Appellant.

No. 95-316.

Supreme Court of Montana.

Submitted on Briefs Nov. 16, 1995.

Decided Nov. 30, 1995.

Rehearing Denied Dec. 21, 1995.

Michael Donahoe, Assistant Federal Defender, Helena, for Appellant.

Joseph P. Mazurek, Attorney General, Jennifer Anders, Pamela Collins, Assistant Attorneys General, Helena; Christopher Miller, Powell County Attorney, Deer Lodge, for Respondent.

NELSON, Justice.

William Gollehon (Gollehon) was convicted of deliberate homicide by accountability and sentenced to death. He appeals from an order of the District Court denying his motion for a new trial and request for discovery. We affirm the trial court's denial of Gollehon's motion for new trial; we do not address the trial court's ruling on his request for discovery.

Gollehon raises on appeal the issue of whether the State failed to timely disclose information that he could have used as mitigating evidence at his sentencing hearing and whether that failure justifies reversal of the death sentence that was imposed in his case.

We restate the issue as whether Gollehon's raising this issue in the context of an untimely motion for new trial bars our consideration of the merits of his claim. We hold that it does.

BACKGROUND

In October 1991, Gollehon was convicted of deliberate homicide by accountability and sentenced to death for his participation in the beating death of fellow prison inmate, Gerald Pileggi. This Court upheld that conviction and sentence in State v. Gollehon (1993), 262 Mont. 1, 864 P.2d 249.

On March 11, 1994, Gollehon petitioned the United States Supreme Court for certiorari. That Court declined to accept Gollehon's case for review in an order published October 3, 1994. Gollehon v. Montana (1994), --- U.S. ----, 115 S.Ct. 95, 130 L.Ed.2d 45.

The State then moved the District Court for a hearing to reset Gollehon's execution date since the previous execution date had expired during the direct appeal process. At the March 24, 1995 hearing, Gollehon moved the District Court for an order requiring the State to produce any pretrial or posttrial promises or agreements with two eyewitnesses who testified at Gollehon's trial. Gollehon argued that this information, had it been disclosed, could have been used as impeachment evidence at trial.

The District Court granted Gollehon's request for discovery of pretrial agreements between the State and the eyewitnesses and ordered further briefing on the issue of whether Gollehon was entitled to any posttrial agreements. The District Court reset Gollehon's execution for June 11, 1995.

On March 29, 1995, Gollehon moved for a new trial and a stay of execution. The State responded that the motion for new trial was untimely and should be summarily dismissed on that basis.

The District Court held a hearing on Gollehon's motions on June 7, 1995, just four days prior to Gollehon's scheduled execution date.

                At the hearing, the court determined that Gollehon's motion for a new trial was untimely.   In addition, the court denied Gollehon's request for discovery of the State's posttrial arrangements with the witnesses, finding that any evidence regarding posttrial agreements would be irrelevant at sentencing as it was not the court's function to reweigh the jury's determination of witness credibility in a capital sentencing proceeding
                

Gollehon appeals the order of the District Court denying his motion for a new trial and his request for discovery. Because of the proximity of Gollehon's execution date, the District Court issued a stay of execution pending Gollehon's appeal.

DISCUSSION

Gollehon maintains that his appeal "concerns the State's duty to disclose material information that would have aided [him] in convincing this Court that the balance of aggravating and mitigating factors demanded the imposition of a non-death sentence." Gollehon argues that the State violated its obligations under Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, and under 46-15-322(1)(e), MCA, in failing to disclose the 1992 commutation of the sentence of State's witness Armstrong and his 1993 parole. Armstrong was one of the eyewitnesses who testified against Gollehon at his homicide trial.

We decline to reach the merits of Gollehon's Brady claim, however, in the procedural context in which the claim is raised. Specifically, Gollehon is appealing from the District Court's denial of his out-of-time motion for new trial. While Gollehon focuses on his substantive Brady claim, our initial inquiry is whether his claim, brought in the context of an untimely motion for new trial, should even be entertained. We conclude that it should not.

Section 46-16-702(2), MCA, provides that a motion for a new trial "must be filed by the defendant within 30 days following a verdict or finding of guilty...." There is no provision in the statute for extending that time period. Gollehon's time for filing his new trial motion expired November 7, 1991, 30 days from entry of the verdict on October 7, 1991. Accordingly, his new trial motion, filed some three and one-half years after the entry of the verdict, is clearly untimely.

While Gollehon relies on past decisions of this Court (two of which were written by the author of this opinion) to avoid the plain and unambiguous requirements of the statute and to reach the merits, we are now persuaded that we originally started down this shaky staircase in error and that our judicially created exceptions to the statute are fast becoming the rule. With that premise in mind, it is appropriate to re-examine our prior decisions.

State v. Best (1972), 161 Mont. 20, 503 P.2d 997, is cited as the seminal authority for the argument that evidence newly discovered posttrial provides an exception to the 30-day filing requirement for a new trial motion under our present statutory scheme. In that case the defendant filed in this Court his new trial motion during the pendency of his direct appeal. We noted that the motion was both untimely and filed in the wrong court under § 95-2101, RCM (1947), the predecessor to § 46-16-702, MCA. Best, 503 P.2d at 1000. In that conclusion we were correct, and we should have simply refused to entertain the defendant's motion on that basis. We needlessly went further, however.

In dicta, citing State v. Nicks (1957), 131 Mont. 567, 312 P.2d 519, we stated that,

[i]f the grounds for seeking a new trial do not arise until after expiration of the 30 day period or until after the appeal is filed, the proper procedure is to stay the appeal, remand the case to the district court, file the motion, secure the district court's decision thereon, and continue with the appeal.

Best, 503 P.2d at 1001.

Unfortunately, under § 95-2101, RCM (1947)--the new trial statute in effect when we decided Best--Nicks was not authority either for the referred to "procedure" or for an exception to the 30-day filing requirement. Rather, Nicks involved § 94-7604, RCM (1947), which was repealed in 1967 and § 95-2101, RCM (1947), was adopted. Section 94-7604, RCM (1947), allowed a new trial motion to be filed "within thirty days after the discovery of the facts upon which the party relies in support of his motion [and] in all other cases ... within ten days after the rendition of the verdict." Section 94-7604, RCM (1947); Nicks, 312 P.2d at 520.

While we reached the right result in Best, we erred in stating that we lacked jurisdiction to entertain the new trial motion at issue there because of the defendant's "failure to follow [the Nicks ] procedure." Best, 503 P.2d at 1001. While that procedure may have been available to Nicks under the statute governing his case, it was not available to Best under the different statute applicable in that case. The result inBest was correct because the defendant's motion for new trial was not timely filed--not for the reason we articulated.

In State v. Perry (1988), 232 Mont. 455, 758 P.2d 268, the defendant filed a motion for new trial following the recantation of the State's eyewitness some 15 years after Perry's murder conviction. Perry, 758 P.2d at 269-70. We rejected the State's argument that the motion, though denoted a motion for new trial, was actually a petition for post-conviction relief which was procedurally barred pursuant to the five year statute of limitations imposed by § 46-21-102, MCA. Perry, 758 P.2d at 272. Moreover, we declined to treat Perry's motion as a petition for writ of habeas corpus, although we noted that his claim, nevertheless, sounded in the nature of that relief. Perry, 758 P.2d at 273. With no statutory posttrial remedies available, we finally concluded that we must, nevertheless, reach the merits of Perry's claim because he had no other avenue of relief and that to deprive him of a method of redress regardless of his diligence or the justness of his claim would be inconsistent with the intent of the legislature and with Art. II, sec. 17, of Montana's 1972 Constitution. Perry, 758 P.2d at 272-73.

Perry is unique on its facts. That case does not stand for the general proposition that a motion for new trial may be entertained beyond the 30-day filing requirement of § 46-16-702, MCA, and it is a misapplication of our decision in that case to argue that its analysis should be extended beyond other cases with like facts.

State v. Redcrow (1990), 242 Mont. 254, 790 P.2d 449, involved the defendant's motion for new trial filed approximately two months following her conviction of deliberate homicide. Redcrow, 790 P.2d at 451. The district court, while noting the untimeliness of Redcrow's motion in its order, nevertheless ruled on the merits of her motion because it was filed "within a reasonable period of time" after the verdict and "because of the serious nature of the offense." Redcrow, 790 P.2d at 452. Citing Best, we acknowledged the 30-day time limit imposed by ...