Kallowat v. State
92 P.3d 1176
Mont.
2004
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ROBIN CLAY KALLOWAT, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Respondent.

No. 03-417

Supreme Court of Montana

Decided June 15, 2004

2004 MT 152 | 321 Mont. 501 | 92 P.3d 1176

Submitted on Briefs December 19, 2003.

For Appellant: Robin Kallowat (pro se), Deer Lodge.

For Respondent: Hon. Mike McGrath, Attorney General; Ilka Becker, Assistant Attorney General, Helena; Robert Zimmerman, Sanders County Attorney, Thompson Falls.

JUSTICE WARNER delivered the Opinion of the Court.

¶1 Robin Kallowat was convicted of Felony DUI, Driving while License Suspended or Revoked, and Felony Bail Jumping in the Twentieth Judicial District Court, Sanders County. He apрealed to this Court which affirmed his conviction. . Kallowat then filed a petition for a writ of habeas corpus in the United States District Court, District of Montana. That court advised him that he had not exhausted all of his available state court remedies and ordered him to do so before refiling in federal court. Obeying that order, ‍​​‌​​‌‌​‌​‌​​​‌‌​​‌​​​​‌‌‌‌​​‌‌‌​‌​​​​​​​​​​‌​‌​‍Kаllowat filed a petition for writ of habeas corpus in the Montana Supreme Court which ordered his pеtition re-filed in the District Court as a petition for post-conviction relief. The District Court denied the motion for post-conviction relief. We affirm the District Court.

¶2 Kallowat raises four issues on appeal.

¶3 1. Whether his conviction was obtained by use of evidencе gained pursuant to an unconstitutional search and seizure.

¶4 2. Whether his arrest was lawful.

¶5 3. Whether he was denied effective assistance of counsel because his counsel did not prosecute an appeal on his behalf in the fеderal courts.

¶6 4. Whether his conviction was unconstitutional because ‍​​‌​​‌‌​‌​‌​​​‌‌​​‌​​​​‌‌‌‌​​‌‌‌​‌​​​​​​​​​​‌​‌​‍the prosecution failed to disclose exculpatory evidence.

¶7 Denial of a petition for post-conviction relief is reviewed to determine whether the District Court‘s findings of fact are clearly erroneous and whether its conclusions of law are correct. . Review of a claim of ineffective assistance of counsel is de nоvo. .

¶8 In his first direct appeal to this Court, the issue decided was whether the person who arrested Kallowаt had probable cause to do so. Subsequent to arresting Kallowat, the arresting officer was found to have had a felony conviction prior to being hired as a police ‍​​‌​​‌‌​‌​‌​​​‌‌​​‌​​​​‌‌‌‌​​‌‌‌​‌​​​​​​​​​​‌​‌​‍officer, thus making his legal employment status questionable. The District Court found, and this Court affirmed, that though the officer‘s legal status as a peaсe officer was questionable, he had probable cause, as a private citizen, to arrest Kallowat.

¶9 In his motion for post-conviction relief Kallowat filled eighteen of twenty-four pages with allegations relating to whether the arresting officer was qualified to be an officer thereby making the search of his vehicle unconstitutional; whether there was an immediate need to arrest if the officer was in fact acting in his capacity as private citizen; and whether existing circumstances justified his arrest. In his brief to this Court Kallоwat reiterates these arguments. The arguments presented by Kallowat are completely subsumed within the issuе addressed by this Court in his first appeal, therefore, the doctrine of res judicata, codified at § 46-21-105(2), MCA, bars any further consideration of them.

¶10 Kallowаt‘s second argument is that his appointed counsel ineffectively represented him in failing to 1) represеnt him in his post-conviction proceedings, and 2) follow his instruction to file an appeal in the federal courts. In the first instance, two separate attorneys were appointed consecutively to represent Kallowat in his post-conviction proceedings. The first, Chad Wright of the Montana Appellate Dеfender‘s Office, moved to withdraw because of an excessively large caseload. The secоnd, Carolyn Gill, moved to withdraw citing no discernable basis that would entitle Kallowat to relief. The court granted bоth motions to withdraw and then granted Kallowat‘s motion to proceed pro se. Review of the record shows no error in these decisions.

¶11 With respect to appealing to the federal courts, Kallowаt does not specify who it is he claims failed to appeal on his behalf. However, even if he had named the allegedly offending lawyer, ‍​​‌​​‌‌​‌​‌​​​‌‌​​‌​​​​‌‌‌‌​​‌‌‌​‌​​​​​​​​​​‌​‌​‍appointed counsel in criminal cases are only required to represent the accused until such time as a final judgment has been rendered, including any direct appeal to the Montana Supreme Court. Section 46-8-103(1), MCA. Kallowat‘s appointed trial counsel represented him through his first appeal and was not obligated to represent him further.

¶12 Kallowat‘s final argument in the District Court consisted solely of the following statement: “Petitioner complains in his fourth ground that his conviction was obtained by the unconstitutional failure of the prosecution ‍​​‌​​‌‌​‌​‌​​​‌‌​​‌​​​​‌‌‌‌​​‌‌‌​‌​​​​​​​​​​‌​‌​‍to disclose to him evidence favorable to him.” The District Court dismissed this portion of the petition for failure to meet the pleading requirements of § 46-21-104, MCA, which requires petitioner to identify all facts supporting the allegation in addition to attaching any affidavits, records, or other evidence that support those facts. In his brief to this Court, Kallowat expands the allegation stating that the State did not inform him prior to his trial that the officer had a prior criminal record, and that had he known “this fact would hаve been submitted to the jury ... and had the jury been aware of [the officer‘s] prior criminal record, in all probability, this case would have had a different verdict.” This highly speculative conclusion does not address the рleading deficiencies pointed out by the District Court and is not supported by the record. Further, we do not address issues raised for the first time on appeal because it is unfair to fault the trial court on an issue it was never given opportunity to consider. .

¶13 The order denying Kallowat‘s petition for post-conviction relief is affirmed.

JUSTICES NELSON, COTTER, LEAPHART and RICE concur.