State v. Howard, 96-196

• Decision Date: 29 May 1997
• Docket Number: No. 96-196,96-196
• Citation: 938 P.2d 710,282 Mont. 522
• Parties: STATE of Montana, Plaintiff and Respondent, v. Michael D. HOWARD, Defendant and Appellant.
• Court: Montana Supreme Court

Page 710

938 P.2d 710

282 Mont. 522

STATE of Montana, Plaintiff and Respondent, v. Michael D. HOWARD, Defendant and Appellant.

No. 96-196.

Supreme Court of Montana.

Submitted on Briefs April 3, 1997.

Decided May 29, 1997.

William F. Hooks, Helena, for defendant and appellant.

Joseph P. Mazurek, Attorney General, Elizabeth Griffing, Assistant Attorney General, Helena; Gerald J. Navratil, County Attorney, Glendive, for plaintiff and respondent.

HUNT, Justice.

Appellant Michael D. Howard (Howard) appeals the decision of the Seventh Judicial District Court, Dawson County, denying his "Motion to Vacate Conviction." We affirm.

Howard presents two issues on appeal:

1. Did the District Court err by construing Howard's "Motion to Vacate Conviction" as a petition for post-conviction relief?

2. Did the District Court err by determining that Howard's "Motion to Vacate Conviction" was time-barred?

In 1981, Howard was charged in Dawson County with one count of felony theft. The theft Howard was charged with involved the participation of two women, one of whom was also charged with felony theft. Howard's court-appointed counsel was the same attorney who had represented Howard's accomplice in her court appearance. The District Court, aware of a possible conflict of interest, gave the attorney time to discuss the matter with Howard. The attorney continued to represent Howard, and no further mention of a conflict of interest was made on the record. Howard subsequently pled guilty to the charge of felony theft and received a sentence of five years in prison, with two years suspended. The judgment, however, initially reflected a conviction for criminal mischief; the District Court later filed an amended judgment correcting the error and changing the crime description to felony theft.

In 1993, Howard asked the District Court for a copy of the file of his accomplice, who had died in 1983, asserting that access to her file was necessary to his own "further legal proceedings." The District Court denied his request. Howard then filed a petition for post-conviction relief with this Court. In his petition, Howard asserted that his counsel at the plea hearing had suffered from an untenable professional conflict of interest, because the same attorney had also represented Howard's accomplice in her plea hearing. This Court summarily dismissed his petition, stating that § 46-21-102, MCA, gave a petitioner five years from the date of judgment in which to file a petition for post-conviction relief, and noting that Howard was far past the time allowed.

Howard then filed with the District Court his "Motion to Vacate Conviction," again asserting that his counsel at his plea hearing had been subject to a conflict of interest. The District Court construed the motion as another petition for post-conviction relief and again dismissed it as out of time. Howard appeals.

The parties agree that the issue of whether the District Court erred in construing Howard's "Motion to Vacate Conviction" as a petition for post-conviction relief is purely a question of law which involves no factual determination. This Court reviews a District Court's conclusions of law de novo, to ensure the court's interpretation of the law is correct. State v. Schnittgen (1996), 277 Mont. 291, 295-96, 922 P.2d 500, 503 (citing State v. Gould (1995), 273 Mont. 207, 219, 902 P.2d 532, 540).

1. Did the District Court err by construing Howard's "Motion to Vacate Conviction" as a petition for post-conviction relief?

Both Howard and the State agree that the District Court could not consider Howard's "Motion to Vacate Conviction" as such; no provision of law allows a court to vacate a conviction simply upon the motion of the defendant. The parties disagree, however, in how Howard's motion should be construed. The State contends the motion amounts to a petition for post-conviction relief, which was properly dismissed as out of time. Howard contends the motion is "similar to" a motion to withdraw his guilty plea.

In arguing that the District Court erred in construing his "Motion to Vacate Conviction" as a petition for post-conviction relief, Howard contends that his motion did not meet the technical requirements for a post-conviction petition nor was it properly verified. In contending that the motion more correctly should be construed as a motion to withdraw his guilty plea, Howard notes that a motion to withdraw a guilty plea may be made at any time before or after judgment, for good cause. Section 46-16-105(2), MCA. Since the statute governing motions to withdraw a guilty plea contains no time limit, Howard contends the District Court should have heard the merits of the motion rather than summarily dismissing it.

Howard first argues that his motion cannot be considered as a petition for post-conviction relief because it was not presented to the District Court in the correct form nor was it verified. We note, however, that the filing was not in the correct form for a proper motion to withdraw a guilty plea, either. Further, this Court has never held that strict compliance to the prescribed form of a post-conviction petition is an absolute prerequisite to the consideration of the merits of the petition. While we of course expect all petitioners to comply with the applicable statutory requirements regarding the form of post-conviction petitions, we recognize that certain petitioners, notably those proceeding pro se, will request relief via some manner other than the properly verified post-conviction petitions. In the interests of justice and judicial economy, this Court occasionally permits such filings to be deemed as petitions for post-conviction relief even if they are not denominated as such. See, e.g., Rudolph v. Day (1995), 273 Mont. 309, 902 P.2d 1007; Blaney v. Gamble (1994), 266 Mont. 51, 879 P.2d 51; State v. Gorder (1990), 243 Mont. 333, 792 P.2d 370. The District Court, therefore, was not precluded from considering Howard's filing as a petition for post-conviction relief merely because its form was incorrect.

Furthermore, the allegations raised in Howard's motion were of the type properly raised in a petition for post-conviction relief. Section 46-21-101, MCA, provides in part:

A person adjudged guilty of an offense in a court of record who has no adequate remedy of appeal and who claims that a sentence was imposed in violation of the constitution or the laws of this state or the constitution of the United States, that the court was without jurisdiction to impose the sentence, that a suspended or deferred sentence was improperly revoked, or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack upon any ground of alleged error available under a writ of...