Ommundson v. State

2012 MT 122N

• Court: Montana Supreme Court
• Decided: June 5, 2012
• Docket: 11-0703
• Status: Published

Opinion

June 5 2012

DA 11-0703

IN THE SUPREME COURT OF THE STATE OF MONTANA 2012 MT 122N

DAVID RAY OMMUNDSON,

Petitioner and Appellant,

v.

STATE OF MONTANA,

Respondent and Appellee.

APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 11-1210 Honorable Susan P. Watters, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

David Ray Ommundson (self-represented litigant); Glendive, Montana

For Appellee:

Steve Bullock, Montana Attorney General; Katie F. Schulz, Assistant Attorney General, Helena, Montana

Scott Twito, Yellowstone County Attorney, Billings, Montana

Submitted on Briefs: May 16, 2012

Decided: June 5, 2012

Filed:

__________________________________________ Clerk Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2 In January, 2007, David Ray Ommundson was tried in the District Court of the

Thirteenth Judicial District and convicted of the offense of indecent exposure.

Ommundson appealed and this Court affirmed the conviction. State v. Ommundson,

2008 MT 340, 346 Mont. 263, 194 P.3d 672. In January, 2009, Ommundson filed a

petition pro se for postconviction relief. The District Court denied relief on the petition

by order of February 4, 2009. Ommundson did not appeal.

¶3 In August, 2011, Ommundson filed a second petition pro se for postconviction

relief. On November 4, 2011 the District Court issued an order denying relief on the

petition, and Ommundson appeals. We affirm.

¶4 A district court may dismiss a petition for postconviction relief as a matter of law,

and this Court reviews those decisions for correctness. Herman v. State, 2006 MT 7, ¶

13, 330 Mont. 267, 127 P.3d 422. All grounds for postconviction relief must be raised in

the original or amended original petition. Section 46-21-105(1)(a), MCA. A second or

subsequent petition for postconviction relief must be denied unless it raises grounds for

relief that could not reasonably have been raised in the original petition. Section 46-21-

2 105(1)(b), MCA. When the petitioner has had the opportunity for direct appeal, any

grounds for relief that were or reasonably could have been raised on appeal may not be

raised in a petition for postconviction relief. Section 46-21-105(2), MCA.

¶5 Ommundson’s second petition for postconviction relief contends that he received

ineffective assistance of counsel at trial; that he received ineffective assistance of

appellate counsel; that the prosecution failed to disclose material evidence; and that he

has newly discovered evidence. The District Court properly determined that these issues

could have been raised upon direct appeal; or were raised and determined adversely to

him in the first postconviction proceeding; or were not supported by any evidence.

Ommundson has not demonstrated that any of the grounds for relief in the current

petition could not have been raised in prior proceedings so as to allow him to file a

second petition for postconviction relief.

¶6 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our Internal Operating Rules, which provides for noncitable memorandum opinions. The

issues in this case are legal and are controlled by settled Montana law, which the District

Court correctly interpreted. The District Court is affirmed.

/S/ MIKE McGRATH

We concur:

/S/ BRIAN MORRIS /S/ JIM RICE /S/ PATRICIA COTTER /S/ BETH BAKER