VanZomeren v. Kowalski

Opinion

03/17/2020

IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 20-0108

OP 20-0108

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ERIC DEAN VANZOMEREN, MAR 1 7 2020 Bovven Cireenvvood

Court

Clerk of Supreme

State of Montana

Petitioner,

v. ORDER

CAPTAIN JASON KOWALSKI,

Respondent.

Eric Dean VanZomeren has filed a petition for a writ of habeas corpus, claiming that his incarceration is illegal because of statutory and constitutional violations. VanZomeren is currently placed at the Missoula Assessment and Sanction Center(MASC).

VanZomeren's attached Judgment shows that on June 4, 2019, he entered a plea of guilty to felony assault on a minor in the Thirteenth Judicial District Court, Yellowstone County. The District Court committed him to the Department of Corrections for a three-year term. VanZomeren received credit for time served prior to imposition of sentence from June 27, 2018,through June 4, 2019. VanZomeren did not appeal.

In his twenty-page petition, VanZomeren requests his immediate release from custody along with dropping the charge, overturning his conviction, awarding half of his sentence as credit for time served, and his release. He contends that the threat of being sentenced as a persistent felony offender (PFO) was used to reach a plea agreement. VanZomeren provides some factual background and puts forth claims of: (1) actual innocence;(2) ineffective assistance of counsel(IAC);(3) denial ofjury trial; and (4) the Judge's failure to abide by the plea agreement. He concludes that these "errors" amount to violations of his due process rights.

VanZomeren's claims are not appropriate for a writ ofhabeas corpus. VanZomeren pleaded guilty to assault on a minor in a court ofrecord. "[A] defendant waives the right to appeal all nonjurisdictional defects upon voluntarily and knowingly entering a guilty

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plea, including clairns of constitutional violations which may have occurred prior to the plea.'" State v. Pavey, 2010 MT 104, ¶ 11, 356 Mont. 248, 231 P.3d 1104 (quoting State v. Violette, 2009 MT 19, ¶ 16, 349 Mont. 81, 201 P.3d 804). And he has exhausted his appeal rernedy by failing to file a timely appeal. Section 46-22-101(2), MCA. VanZomeren is barred to raise any record-based IAC claims or other errors that could have been raised in a timely appeal. See State v. Wright, 2001 MT 282, ¶ 13, 307 Mont. 349, 42 P.3d 753.

Because he did not appeal, VanZomeren's conviction becarne final sixty days after June 4, 2019, or August 4, 2019. Section 46-21-102(1)(a), MCA. VanZomeren has a year from August 4, 2019, to file a timely petition for postconviction relief in the Yellowstone County District Court to the extent he wishes to raise non-record based ineffective assistance of counsel claims.

IT IS THEREFORE ORDERED that VanZorneren's Petition for a Writ of Habeas Corpus is DENIED.

The Clerk is directed to provide a copy of this Order to counsel of record and to Eric Dean VanZornerentzsonally.

DATED this )--4"- day of March, 2020.

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