State v. Gorder
| Decision Date | 16 May 1990 |
| Docket Number | No. 89-541,89-541 |
| Citation | 243 Mont. 333,792 P.2d 370 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Mark GORDER, Defendant and Appellant. |
| Court | Montana Supreme Court |
Russell K. Jones, Kaiser & Douglass, Spokane, Wash., for defendant and appellant.
Marc Racicot, Atty. Gen., Elizabeth S. Baker, Asst. Atty. Gen., Helena, Cynthia K. Thornton, Powder River County Atty., Broadus, for plaintiff and respondent.
Mr. Gorder appeals his conviction of conspiracy to possess dangerous drugs with intent to sell following a jury trial in the Sixteenth Judicial District, Powder River County, Montana. We affirm.
We will rephrase the issue raised for review as follows: Can defendant challenge jury instructions in a petition for post-conviction relief when defendant failed to object to the disputed instructions at trial?
On June 19, 1988, twenty-nine U-Haul boxes were discovered on a rural road in Powder River County. The boxes were found to contain approximately 778 pounds of marijuana. Law enforcement officers eventually arrested Ronald Amerline and his brother, Jody Scott Amerline, in connection with possessing and abandoning the marijuana. Ron Amerline pled guilty to possession of marijuana with intent to distribute, and Jody Amerline pled guilty to possession.
At trial, the prosecution contended that Mr. Gorder conspired with Ron Amerline to transport marijuana from Tucson, Arizona to Buffalo, New York on three occasions. Ron Amerline, a co-conspirator, testified for the prosecution during Mr. Gorder's trial.
Essentially, Mr. Gorder argues that the District Court erred in instructing the jury regarding how to properly evaluate a co-conspirator's testimony. However, Mr. Gorder concedes that he cannot directly appeal this alleged error because the defense failed to object to the disputed instructions at trial. See Sec. 46-20-104(2), MCA. Since he cannot appeal this issue, Mr. Gorder asks this Court to construe this appeal as a petition for post-conviction relief.
Section 46-21-103, MCA, provides for the commencement of a petition for post-conviction relief with this Court. Further, the record before us substantially complies with Sec. 46-21-104, MCA, which sets forth the required contents of a petition for post-conviction relief. Therefore, in the interests of judicial economy, we will grant defendant's request and consider this action as a petition for post-conviction relief.
Not all allegations of error may be raised in a petition for post-conviction relief. In pertinent part, Sec. 46-21-105, MCA, states:
When a petitioner has been afforded a direct appeal of his conviction, grounds for relief that could reasonably have been raised on direct appeal may not be raised in his original or amended petition.
The purpose of the above waiver provision is to preserve the integrity of the trial and direct appeal and to prevent abuse of the post-conviction relief process.
In this case, defendant, through a petition for post-conviction relief, hopes to make an end run around the procedural default provision in Sec. 46-20-104, MCA. Not only did defendant run afoul of Sec. 46-20-104, MCA, which requires timely objections at trial to preserve issues for appeal, but defendant also violated Sec. 46-16-401(4), MCA. That statute specifically requires counsel to register any objections to instructions before they are...
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