Melvin Gatlin v. State

December 6 2011

DA 11-0319

IN THE SUPREME COURT OF THE STATE OF MONTANA 2011 MT 305N

MELVIN LEE GATLIN, JR.,

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 11-534 Honorable Karen S. Townsend, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Melvin Lee Gatlin, self-represented; Shelby, Montana

For Appellee:

Steve Bullock, Montana Attorney General; Mardell Ployhar, Assistant Attorney General; Helena, Montana

Fred R. Van Valkenburg, Missoula County Attorney; Jason T. Marks, Deputy County Attorney; Missoula, Montana

Submitted on Briefs: November 16, 2011

Decided: December 6, 2011 Filed:

__________________________________________ Clerk

Justice Jim Rice 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 Melvin Lee Gatlin appeals from the order entered by the Fourth Judicial District Court, Missoula County, denying his petition for postconviction relief, which challenged his conviction upon guilty plea of two counts of robbery. Gatlin’s case was previously before this Court on appeal. State v. Gatlin, 2009 MT 348, 353 Mont. 163, 219 P.3d 874. ¶3 Gatlin was originally charged with robbing two casinos in Missoula County and a grocery store in Butte-Silver Bow County in December of 2007. Gatlin, ¶¶ 5-7. He was arrested in Butte and detained in the Butte-Silver Bow County jail during the pendency of the Butte-Silver Bow County proceeding. Gatlin, ¶ 9. Charges were filed in Missoula County, but no further action was taken until after Gatlin entered a no contest plea and was sentenced in Butte-Silver Bow County, when he was then transferred to Missoula County. Gatlin, ¶¶ 9-10. Gatlin filed a motion to dismiss the Missoula County charges on the grounds that the Information had not been timely filed, and he had not been informed of his right to counsel at his initial appearance. Gatlin, ¶ 12. After his motion was denied, Gatlin pled guilty to the Missoula County charges pursuant to a plea agreement in which he reserved his right to appeal the denial of his motion to dismiss. *3 Gatlin, ¶ 14. This Court reversed his Missoula County convictions on the ground that Gatlin had not been advised of his right to counsel at his initial appearance, and we instructed the District Court to dismiss the charges without prejudice because Gatlin had not been prejudiced by the delay. Gatlin, ¶¶ 23, 29. After remand, the Missoula County robbery charges were re-filed, and Gatlin thereafter entered guilty pleas to the charges. ¶4 Gatlin then filed a petition for postconviction relief, claiming ineffective assistance of counsel and failure of the prosecutor to disclose material evidence. The District Court denied the petition, and on appeal, Gatlin offers new arguments, claiming that his two Missoula County robbery convictions violate his constitutional double jeopardy and equal protection rights. The State argues that Gatlin waived these claims by pleading guilty to the charges, forfeited them by not raising them before the District Court, failed to establish grounds for plain error review, and failed to sufficiently develop a legal argument and basis for his claims. The State also contests the claims on their merits. ¶5 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. Having reviewed the briefs and the record on appeal, we conclude that the appellant has not met his burden of persuasion or demonstrated reversible error. ¶6 Affirmed.

/S/ JIM RICE *4 We concur:

/S/ BRIAN MORRIS /S/ PATRICIA COTTER /S/ BETH BAKER /S/ MICHAEL E WHEAT