Gyme Kelly v. State
300 P.3d 120
Mont.2013Background
- Kelly was pulled over for speeding and arrested for DUI; state charged felony DUI and sought revocation of his suspended sentence.
- On Nov 18, 2010, Kelly pled guilty to felony DUI and admitted violating the suspended sentence; court sentenced him to 40 years (25 suspended) for felony DUI and 15 years for the prior DUI, consecutive.
- On Dec 30, 2011, Kelly filed a postconviction relief petition alleging ineffective assistance of counsel about a more favorable plea offer; State moved to dismiss for failure to plead with factual support; district court summarily dismissed.
- Kelly attached a one-page affidavit in his opening brief asserting counsel failed to inform him of a less harsh plea and that he would have pursued it if informed.
- Court upheld strict postconviction pleading standards requiring factual support and held Frye does not override Montana pleading requirements; the attached affidavit was not properly before the court and, even if considered, was insufficient to support relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the petition was sufficiently pled with facts. | Kelly argues the petition and attached affidavit state actionable facts. | State contends petition lacks factual support and must be dismissed. | Yes; petition insufficiently pled. |
| Whether the postconviction affidavit could be considered on appeal. | Affidavit would support claims if admitted. | Affidavit not properly before the district court and insufficient even if considered. | Affidavit not properly before court; insufficient even if considered. |
| Whether Frye governs pleading standards in Montana postconviction proceedings. | Frye supports relief for ineffective assistance at plea stage. | Montana pleading standards govern; Frye does not override them. | Frye does not override Montana pleading requirements. |
Key Cases Cited
- Ellenburg v. Chase, 320 Mont. 315, 87 P.3d 473 (2004 MT 66) (postconviction pleading requirements; need facts and records)
- State v. Wright, 307 Mont. 349, 42 P.3d 753 (2001 MT 282) (ineffective counsel claims require factual grounding in record)
- State v. Lewis, 582 P.2d 346 (1978 MT) (ineffective counsel must be grounded in record facts)
- State v. McColley, Mont. 1991 (1991 MT) (pleading requirements for postconviction claims)
- Frye v. Missouri, 132 S. Ct. 1399 (2012) (Shelarly, defense counsel must inform about plea offers; not controlling on procedural pleading)