Orcutt v. State

2016 MT 260N

• Court: Montana Supreme Court
• Decided: October 11, 2016
• Docket: 15-0648
• Status: Published

Opinion

10/11/2016

DA 15-0648 Case Number: DA 15-0648

IN THE SUPREME COURT OF THE STATE OF MONTANA

2016 MT 260N

TRACY K. ORCUTT,

Petitioner and Appellant,

v.

STATE OF MONTANA,

Respondent and Appellee.

APPEAL FROM: District Court of the Seventh Judicial District, In and For the County of Dawson, Cause No. DV 15-073 Honorable Richard A. Simonton, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Tracy K. Orcutt, Self-Represented, Glendive, Montana

For Appellee:

Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana

Oliva Norlin-Rieger, Dawson County Attorney, Glendive, Montana

Submitted on Briefs: August 24, 2016

Decided: October 11, 2016

Filed:

__________________________________________ Clerk Justice Patricia Cotter delivered the Opinion of the Court.

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

Rules, this case is decided by unpublished opinion and shall not be cited and does not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 Tracy K. Orcutt, appearing pro se, appeals from an October 2015 order of the

Seventh Judicial District Court, Dawson County, denying his second Petition for

Post-Conviction Relief. We affirm.

¶3 In 2014, Orcutt pled nolo contendere to two felony drug charges: criminal

production or manufacture of dangerous drugs and criminal possession of dangerous

drugs with intent to distribute. He did not appeal. On November 3, 2014, Orcutt filed his

first petition for post-conviction relief, alleging ineffective assistance of counsel and a

myriad of errors within his conviction. The District Court dismissed the petition on

November 28, 2014, finding that the record and pleadings in the case showed,

conclusively, that Orcutt was not entitled to relief. In October 2015, Orcutt filed his

second petition for post-conviction relief, alleging substantially the same grounds for

relief and errors in his underlying conviction as he alleged in his first petition, and

alleging the existence of newly discovered evidence entitling him to relief. In October

2015, the District Court dismissed Orcutt’s second petition.

¶4 “We review a district court’s denial of a petition for post-conviction relief to

determine whether the court’s findings of fact are clearly erroneous and whether its

2 conclusions of law are correct.” Beach v. State, 2009 MT 398, ¶ 14, 353 Mont. 411, 220

P.3d 667. A district court must dismiss “a second or subsequent petition by a person who

has filed an original petition unless the second or subsequent petition raises grounds for

relief that could not reasonably have been raised in the original or an amended original

petition.” Section 46-21-105(1)(b), MCA.

¶5 After reviewing the petition, pleadings, and record in this case, we determine that

the grounds for relief upon which Orcutt relies reasonably could have been raised in his

first petition for post-conviction relief. In fact, a substantial number of the arguments he

now raises were raised in his first petition. Because Orcutt’s arguments in his second

petition for post-conviction relief were or could have been raised in his original petition,

the District Court did not err in dismissing the petition.

¶6 We note that the District Court stated in its order: “Having considered Orcutt’s

Amended Second Petition for Post-Conviction Relief, the relief requested is denied and

the Amended Second Petition is dismissed. Orcutt may not file another Petition for

Post-Conviction Relief.” While the evidentiary threshold may be heightened for second

or subsequent petitions for post-conviction relief, there is nothing in our statutory scheme

that categorically bars a petitioner from raising additional claims if adequate grounds for

relief should arise in the future. Therefore, we strike the portion of the District Court’s

order that precluded Orcutt from filing such a petition.

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

our Internal Operating Rules, which provides for unpublished opinions. In the opinion of

this Court, this case presents a question controlled by settled law.

3 ¶8 Affirmed.

/S/ PATRICIA COTTER

We Concur:

/S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ JAMES JEREMIAH SHEA /S/ LAURIE McKINNON