Sees the Ground v. State

2012 MT 183N

• Court: Montana Supreme Court
• Decided: August 21, 2012
• Docket: 11-0625
• Status: Published

Opinion

August 21 2012

DA 11-0625

IN THE SUPREME COURT OF THE STATE OF MONTANA 2012 MT 183N

GORDON SEES THE GROUND, JR.,

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 10-0763 Honorable Gregory R. Todd, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Gordon Sees The Ground, Jr. (self-represented litigant); Shelby, Montana

For Appellee:

Steve Bullock, Montana Attorney General; Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana

Scott Twito, Yellowstone County Attorney, Billings, Montana

Submitted on Briefs: August 1, 2012

Decided: August 21, 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 Gordon Sees The Ground, Jr. appeals from the District Court’s Order dated

August 18, 2011 denying his petition for postconviction relief. We affirm.

¶3 In 2008, Sees The Ground was convicted of felony DUI after Billings police

officers found him slumped over the steering wheel of a car with the ignition key in the

on position, the headlights on, and parked partially in the traffic lane. Sees The Ground

appealed the conviction and this Court affirmed. State v. Sees The Ground, 2009 MT

375N (table). Sees The Ground was subsequently charged with and convicted of perjury

based upon the testimony he gave at his DUI trial. Sees The Ground testified at the DUI

trial that Orrie Plainbull had driven the car to the location where Sees The Ground was

later found behind the wheel. This was perjury because Plainbull was in the hospital

being treated for injuries suffered in a fall during the time Sees The Ground claims

Plainbull was driving him around Billings. Sees The Ground appealed the perjury

conviction but the appeal was withdrawn.

¶4 Sees The Ground claimed in his postconviction relief petition filed in District

Court that the prosecution in his DUI trial withheld material information about a witness

2 named Gregory Wood, who called 911 to report Sees The Ground slumped over in the

vehicle. Sees The Ground claims that the prosecution withheld information that Wood

also witnessed two men in a car and saw the passenger get out, fall on the sidewalk, and

injure himself while the vehicle drove away. The injured man proved to be Orrie

Plainbull, and the vehicle that drove away was the one in which police later found Sees

The Ground slumped over the steering wheel.

¶5 The District Court found in this case that Sees The Ground had the transcript of

Wood’s 911 call and that a defense investigator had interviewed Wood. The District

Court concluded that Sees The Ground had not established that the prosecution withheld

any material information concerning witness Wood and we find no reason to disturb that

conclusion. Sees The Ground and his attorney knew about Wood prior to trial and Wood

testified at trial. These claims could have been raised on direct appeal but they were not

and so are barred by § 46-21-105(2), MCA (issues which were or could reasonably have

been raised on direct appeal may not be raised or considered in a petition for

postconviction relief).

¶6 Sees The Ground attempts to raise other issues for the first time on appeal,

including allegations that he received ineffective assistance of counsel and that he would

never have committed perjury if he had known that the State had evidence that Plainbull

could not have driven the car. We decline to consider these issues because they were not

presented to the District Court. State v. Johnson, 2008 MT 227, ¶ 26, 344 Mont. 313,

187 P.3d 662.

3 ¶7 We have determined to decide this case pursuant to Section 1, Paragraph 3(d) of

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

Having reviewed the briefs and the record on appeal we conclude that Sees The Ground

has not met his burden of persuasion and that the District Court properly denied relief.

¶8 Affirmed.

/S/ MIKE McGRATH

We concur:

/S/ JAMES C. NELSON /S/ PATRICIA COTTER /S/ BETH BAKER /S/ MICHAEL E WHEAT