04/01/2025
DA 24-0241 Case Number: DA 24-0241
IN THE SUPREME COURT OF THE STATE OF MONTANA
2025 MT 65N
TERRY SULLIVAN,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV-20-1304 Honorable Shane A. Vannatta, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Terry Sullivan, Self-Represented, Missoula, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Roy Brown, Assistant Attorney General, Helena, Montana
Matthew C. Jennings, Missoula County Attorney, Missoula, Montana
Submitted on Briefs: March 5, 2025
Decided: April 1, 2025
Filed:
s r---6ma•—•f __________________________________________ Clerk Justice Laurie McKinnon 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 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 Terry Sullivan (Sullivan) appeals the February 13, 2024 Order of the Fourth Judicial
District Court, Missoula County, denying his amended petition for postconviction relief
from his misdemeanor conviction for disorderly conduct in Missoula Municipal Court. We
affirm.
¶3 The State charged Sullivan with misdemeanor disorderly conduct in May 2016 after
he exited his vehicle in traffic while at a red light and challenged another driver to fight
him while shouting obscenities. Sullivan failed to make his initial appearance, and the
Municipal Court held that he had waived his right to a jury trial. Sullivan’s attorney was
able to successfully convince the court to reverse that decision and allow a jury trial.
Additionally, Sullivan’s attorney filed an unsuccessful motion to dismiss the charge against
Sullivan, alleging the State lacked probable cause. The jury ultimately convicted Sullivan
on January 5, 2017. New counsel represented Sullivan in his appeal of his conviction to
the District Court until Sullivan decided to proceed pro se. When Sullivan failed to file his
opening brief, the District Court dismissed the matter on August 1, 2017.
2 ¶4 Sullivan filed a motion for reconsideration in the District Court. The District Court
denied his motion on September 7, 2017. Sullivan’s attempt to appeal to this Court failed
as untimely. City of Missoula v. Sullivan (Sullivan I), No. DA 17-0648, Order (Mont.
Nov. 14, 2017). Sullivan then filed a petition for an out of time appeal and a petition for
rehearing, both of which we also denied. City of Missoula v. Sullivan (Sullivan II), No.
DA 17-0648, Order (Mont. Dec. 5, 2017). Sullivan’s subsequent petition for a rehearing
proved more successful, as we vacated and withdrew Sullivan I and Sullivan II “[d]ue to
analytical imprecision” but we again reached the same conclusions as the prior Orders
because Sullivan failed to show good cause for an out of time appeal and had
“at best shown no more than his own mistake, or otherwise excusable neglect” in following
timing deadlines. City of Missoula v. Sullivan (Sullivan III), No. DA 17-0648, Order
(Mont. Jan 2, 2018). On July 26, 2018, Sullivan attempted to appeal the August 1, 2017
dismissal of his appeal to the District Court which we dismissed with prejudice as untimely.
City of Missoula v. Sullivan (Sullivan IV), No. DA 18-0451, Order (Mont. Apr. 23, 2019).
¶5 Sullivan petitioned the District Court for postconviction relief on October 13, 2020,
alleging 76 ineffective assistance of counsel claims against his public defender during his
2016 Municipal Court trial, supported by a 212-page memorandum. On May 17, 2022, the
District Court dismissed Sullivan’s postconviction relief petition, concluding that Sullivan
premised his arguments on a mistaken understanding of the law and that he failed to support
his petition with “affidavits, records, citations, or other evidence establishing the existence
of the facts he alleges[.]” Sullivan then filed an amended petition in which he incorporated
3 “by reference, as if fully set forth herein verbatim[,]” his first postconviction relief petition
and its supporting memorandum. He further used his amended petition to assail the court’s
dismissal of his original postconviction relief petition. On February 13, 2024, the District
Court denied and dismissed Sullivan’s amended petition. Sullivan now appeals.
¶6 We review a district court’s denial of a petition for postconviction relief to
determine whether its factual findings are clearly erroneous and whether its legal
conclusions are correct. Garding v. State, 2020 MT 163, ¶ 12, 400 Mont. 296, 466 P.3d
501 (citation omitted). Ineffective assistance of counsel claims present mixed questions of
law and fact which we review de novo. State v. Godfrey, 2009 MT 60, ¶ 10, 349 Mont.
335, 203 P.3d 834.
¶7 “[P]ostconviction relief is civil in nature and independent of the underlying criminal
cause.” Coleman v. State, 194 Mont. 428, 433, 633 P.2d 624, 627 (1981). “A person
judged guilty of an offense in a court of record who has no adequate remedy of appeal [. . .]
may petition the court that imposed the sentence to vacate, set aside, or correct the sentence
or revocation order.” Section 46-21-101(1), MCA. The petitioner in postconviction relief
proceedings has the burden to show by a preponderance of the evidence that the facts justify
relief. Godfrey, ¶ 13 (quotation omitted). The statutory requirements for postconviction
relief are demanding in their pleading requirements. Ellenberg v. Chase, 2004 MT 66,
¶ 12, 320 Mont. 315, 87 P.3d 473. When seeking postconviction relief, the defendant must
identify all facts supporting the grounds for relief set forth in the petition and have attached
affidavits, records, or other evidence establishing the existence of those facts. Godfrey,
4 ¶ 13 (citations omitted); § 46-21-104(c), MCA. Mere conclusory allegations are not
enough to support the petition. Godfrey, ¶ 13 (citation omitted). A defendant’s affidavit,
unsupported by evidence, is also insufficient to support a petition for postconviction relief.
Godfrey, ¶ 13 (citing Williams v. State, 2002 MT 189, ¶ 19, 311 Mont. 108, 53 P.3d 864).
¶8 Here, Sullivan supported his amended petition with a signed declaration purporting
that all the facts included in his two postconviction filings “are true and correct[.]” Beyond
this declaration, Sullivan offers no affidavits, records, or other evidence establishing the
facts alleged. Instead, Sullivan offers conclusory allegations he claims entitle him to relief
from his conviction. By his own admission, the claims of ineffective assistance of counsel
are non-record based. Yet, Sullivan did not submit an affidavit from his defense counsel
allowing for an explanation of the allegedly deficient conduct at trial. A district court has
wide latitude to dismiss a petition for failing to comply with the requirements of
§ 46-21-104(c), MCA. Hamilton v. State, 2010 MT 25, ¶ 10, 355 Mont. 133, 226 P.3d 588
(citations omitted). The District Court correctly dismissed Sullivan’s ineffective assistance
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04/01/2025
DA 24-0241 Case Number: DA 24-0241
IN THE SUPREME COURT OF THE STATE OF MONTANA
2025 MT 65N
TERRY SULLIVAN,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV-20-1304 Honorable Shane A. Vannatta, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Terry Sullivan, Self-Represented, Missoula, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Roy Brown, Assistant Attorney General, Helena, Montana
Matthew C. Jennings, Missoula County Attorney, Missoula, Montana
Submitted on Briefs: March 5, 2025
Decided: April 1, 2025
Filed:
s r---6ma•—•f __________________________________________ Clerk Justice Laurie McKinnon 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 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 Terry Sullivan (Sullivan) appeals the February 13, 2024 Order of the Fourth Judicial
District Court, Missoula County, denying his amended petition for postconviction relief
from his misdemeanor conviction for disorderly conduct in Missoula Municipal Court. We
affirm.
¶3 The State charged Sullivan with misdemeanor disorderly conduct in May 2016 after
he exited his vehicle in traffic while at a red light and challenged another driver to fight
him while shouting obscenities. Sullivan failed to make his initial appearance, and the
Municipal Court held that he had waived his right to a jury trial. Sullivan’s attorney was
able to successfully convince the court to reverse that decision and allow a jury trial.
Additionally, Sullivan’s attorney filed an unsuccessful motion to dismiss the charge against
Sullivan, alleging the State lacked probable cause. The jury ultimately convicted Sullivan
on January 5, 2017. New counsel represented Sullivan in his appeal of his conviction to
the District Court until Sullivan decided to proceed pro se. When Sullivan failed to file his
opening brief, the District Court dismissed the matter on August 1, 2017.
2 ¶4 Sullivan filed a motion for reconsideration in the District Court. The District Court
denied his motion on September 7, 2017. Sullivan’s attempt to appeal to this Court failed
as untimely. City of Missoula v. Sullivan (Sullivan I), No. DA 17-0648, Order (Mont.
Nov. 14, 2017). Sullivan then filed a petition for an out of time appeal and a petition for
rehearing, both of which we also denied. City of Missoula v. Sullivan (Sullivan II), No.
DA 17-0648, Order (Mont. Dec. 5, 2017). Sullivan’s subsequent petition for a rehearing
proved more successful, as we vacated and withdrew Sullivan I and Sullivan II “[d]ue to
analytical imprecision” but we again reached the same conclusions as the prior Orders
because Sullivan failed to show good cause for an out of time appeal and had
“at best shown no more than his own mistake, or otherwise excusable neglect” in following
timing deadlines. City of Missoula v. Sullivan (Sullivan III), No. DA 17-0648, Order
(Mont. Jan 2, 2018). On July 26, 2018, Sullivan attempted to appeal the August 1, 2017
dismissal of his appeal to the District Court which we dismissed with prejudice as untimely.
City of Missoula v. Sullivan (Sullivan IV), No. DA 18-0451, Order (Mont. Apr. 23, 2019).
¶5 Sullivan petitioned the District Court for postconviction relief on October 13, 2020,
alleging 76 ineffective assistance of counsel claims against his public defender during his
2016 Municipal Court trial, supported by a 212-page memorandum. On May 17, 2022, the
District Court dismissed Sullivan’s postconviction relief petition, concluding that Sullivan
premised his arguments on a mistaken understanding of the law and that he failed to support
his petition with “affidavits, records, citations, or other evidence establishing the existence
of the facts he alleges[.]” Sullivan then filed an amended petition in which he incorporated
3 “by reference, as if fully set forth herein verbatim[,]” his first postconviction relief petition
and its supporting memorandum. He further used his amended petition to assail the court’s
dismissal of his original postconviction relief petition. On February 13, 2024, the District
Court denied and dismissed Sullivan’s amended petition. Sullivan now appeals.
¶6 We review a district court’s denial of a petition for postconviction relief to
determine whether its factual findings are clearly erroneous and whether its legal
conclusions are correct. Garding v. State, 2020 MT 163, ¶ 12, 400 Mont. 296, 466 P.3d
501 (citation omitted). Ineffective assistance of counsel claims present mixed questions of
law and fact which we review de novo. State v. Godfrey, 2009 MT 60, ¶ 10, 349 Mont.
335, 203 P.3d 834.
¶7 “[P]ostconviction relief is civil in nature and independent of the underlying criminal
cause.” Coleman v. State, 194 Mont. 428, 433, 633 P.2d 624, 627 (1981). “A person
judged guilty of an offense in a court of record who has no adequate remedy of appeal [. . .]
may petition the court that imposed the sentence to vacate, set aside, or correct the sentence
or revocation order.” Section 46-21-101(1), MCA. The petitioner in postconviction relief
proceedings has the burden to show by a preponderance of the evidence that the facts justify
relief. Godfrey, ¶ 13 (quotation omitted). The statutory requirements for postconviction
relief are demanding in their pleading requirements. Ellenberg v. Chase, 2004 MT 66,
¶ 12, 320 Mont. 315, 87 P.3d 473. When seeking postconviction relief, the defendant must
identify all facts supporting the grounds for relief set forth in the petition and have attached
affidavits, records, or other evidence establishing the existence of those facts. Godfrey,
4 ¶ 13 (citations omitted); § 46-21-104(c), MCA. Mere conclusory allegations are not
enough to support the petition. Godfrey, ¶ 13 (citation omitted). A defendant’s affidavit,
unsupported by evidence, is also insufficient to support a petition for postconviction relief.
Godfrey, ¶ 13 (citing Williams v. State, 2002 MT 189, ¶ 19, 311 Mont. 108, 53 P.3d 864).
¶8 Here, Sullivan supported his amended petition with a signed declaration purporting
that all the facts included in his two postconviction filings “are true and correct[.]” Beyond
this declaration, Sullivan offers no affidavits, records, or other evidence establishing the
facts alleged. Instead, Sullivan offers conclusory allegations he claims entitle him to relief
from his conviction. By his own admission, the claims of ineffective assistance of counsel
are non-record based. Yet, Sullivan did not submit an affidavit from his defense counsel
allowing for an explanation of the allegedly deficient conduct at trial. A district court has
wide latitude to dismiss a petition for failing to comply with the requirements of
§ 46-21-104(c), MCA. Hamilton v. State, 2010 MT 25, ¶ 10, 355 Mont. 133, 226 P.3d 588
(citations omitted). The District Court correctly dismissed Sullivan’s ineffective assistance
of counsel claims for failure to provide an evidentiary record, and we likewise decline to
examine claims backed by an incomplete record.
¶9 Regardless of whether Sullivan provided the required evidence to the District Court,
his ineffective assistance of counsel claims fail because he has not demonstrated his
defense counsel’s performance at trial was deficient. A party alleging ineffective
assistance of counsel must prove two elements: 1) counsel’s performance was deficient
and 2) this deficient performance prejudiced the defendant. Strickland v. Washington,
5 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Counsel is deficient when counsel makes
“errors so serious that counsel was not functioning as ‘counsel’ as guaranteed” by the U.S.
and Montana constitutions. State v. Schowengerdt, 2018 MT 7, ¶ 31, 390 Mont. 123,
409 P.3d 38 (citations omitted). A defendant claiming ineffective assistance of counsel
bears the “heavy burden” to overcome the strong presumption that counsel’s actions were
within the broad range of reasonable professional assistance. Whitlow v. State, 2008 MT
140, ¶ 21, 343 Mont. 90, 183 P.3d 861 (citations omitted).
¶10 In the instant case, Sullivan has not provided evidence to rebut the presumption that
his defense counsel operated within the broad range of reasonable professional assistance.
Instead, he relies on his lack of success at trial as evidence of deficient performance.
“Success is not the test of efficient counsel.” Riggs v. State, 2011 MT 239, ¶ 32, 362 Mont.
140, 264 P.3d 693 (citation omitted). Accordingly, Sullivan’s failure to provide evidence
of deficiency on the part of trial counsel beyond the mere fact that he lost below is fatal for
his claims here.
¶11 Further, Sullivan’s remaining argument challenging his conviction is also
inappropriate for postconviction proceedings. “When a petitioner has been afforded the
opportunity for a direct appeal of the petitioner’s conviction, grounds for relief that were
or could reasonably have been raised on direct appeal may not be raised, considered, or
decided in a proceeding brought under this chapter.” Section 46-21-105(2), MCA.
Criminal defendants may not substitute postconviction relief for direct appeal. DeShields
v. State, 2006 MT 58, ¶ 15, 331 Mont. 329, 132 P.3d 540 (citation omitted).
6 ¶12 Here, Sullivan had the opportunity to make his arguments regarding the
applicability of § 45-8-101(d), MCA, to his case in his appeal to the District Court in 2017.
Sullivan apparently abandoned that appeal by failing to file his opening brief. He
subsequently exhausted his appeals, both through his attempts to have the District Court
reconsider his case and in his previous attempts to appeal to this Court.
Section 46-21-105(2), MCA, is a procedural bar to Sullivan’s claims. The District Court
was correct to not entertain a new theory raised for the first time in Sullivan’s petitions for
postconviction relief that he could have reasonably asserted through direct appeal.
¶13 For the above reasons, we affirm the District Court’s conclusion that Sullivan has
failed to demonstrate he is entitled to postconviction relief.
¶14 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. This appeal presents
no constitutional issues, no issues of first impression, and does not establish new precedent
or modify existing precedent.
/S/ LAURIE McKINNON
We Concur:
/S/ JAMES JEREMIAH SHEA /S/ KATHERINE M BIDEGARAY /S/ INGRID GUSTAFSON /S/ JIM RICE