NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Capital Punishment Handbook: State Law Summaries - Montana

        a.     History
        b.     Capital Offenses
        c.     Representation In Capital Cases
        d.     Trial Of Capital Offenses
        e.     Capital Sentencing: Penalty Hearing
        f.      Aggravating Circumstances
        g.     Mitigating Circumstances
        h.     Appellate Review Of Capital Sentences
        i.      Collateral Remedies
        j.      Post-Conviction Relief
        k.     Habeas Corpus
        l.      Appellate Review Of Collateral Proceedings
        m.    Procedural Bar/Waiver/Exhaustion
        n.     Execution
        o.     Competency Or Execution
        p.     Stays Of Execution
        q.     Clemency Procedures

In light of the U.S. Supreme Court’s holding in Furman v. Georgia, 408 U.S. 238 (1972), Montana amended its capital sentencing law, which had allowed for complete, unguided sentencing discretion in determining either a sentence of death or life imprisonment for capital offenses. The legislature’s 1973 amendment to the capital sentencing law sought to guide the sentencing authority’s decision by eliminating any discretion on the part of the sentencer. The new law made the death penalty mandatory for anyone convicted of first degree murder.

In 1977, the Montana legislature, in response to the U.S. Supreme Court’s holding in Woodson v. North Carolina, 428 U.S. 280 (1976), again amended its death penalty statute by enacting the current capital sentencing scheme. Montana Code § 46-18-301 provides for imposition of the death penalty only after a sentencing hearing where the sentencing court considers the aggravating and mitigating circumstances. However, in 2003 Montana Code § 46-18-302 was amended to provide that evidence of aggravating circumstances may not be considered at the sentencing hearing unless the trier of fact found beyond a reasonable doubt that aggravating circumstances existed. Montana Code § 46-18-301 provides for imposition of the death penalty only after a sentencing hearing where the sentencing court considers the aggravating and mitigating circumstances. Additionally, § 46-18-307 provides for mandatory supreme court review of all death sentences. Automatic review of death sentences is limited to the issues set forth in § 46-18-310(1)(a), (b), and (c).

Woodson v. North Carolina, 428 U.S. 280 (1976) (declaring mandatory death sentences unconstitutional).

Furman v. Georgia, 408 U.S. 238 (1972) (holding complete, unguided discretion capital punishment statute unconstitutional).

State v. Coleman, 185 Mont. 299, 605 P.2d 1000 (1979) (Coleman II) (upholding constitutionality of Montana’s bifurcated capital sentencing scheme), cert. denied, 446 U.S. 970 (1980).

State v. Coleman, 177 Mont. 1, 579 P.2d 732 (1978) (Coleman I) (finding Montana’s mandatory death penalty statute unconstitutional in light of Woodson).

State v. Rhodes, 164 Mont. 455, 524 P.2d 1095 (1974) (finding pre-1973 capital punishment statute unconstitutional in light of Furman because statute provided for complete, unguided sentencing discretion).

Mont. Code Ann. § 46-18-301 (2005) (requiring sentencing hearing after capital conviction to determine appropriate sentence).

Mont. Code Ann. § 46-18-302 (2005) (listing evidence that may be received at sentencing hearing; evidence introduced at guilt phase need not be reintroduced at penalty phase).

Mont. Code Ann. § 46-18-307 (2005) (requiring automatic review of death sentences by Montana Supreme Court, limited to issues set forth in § 46-18-310(a)-(c)).

Deliberate homicide is subject to capital punishment in Montana. Section 45-5-102 of the Montana Code defines deliberate homicide as (1) purposely or knowingly causing the death of another human being, or (2) death incident to a robbery, rape, arson, burglary, kidnapping, aggravated kidnapping, felonious escape, assault with a weapon, aggravated assault, or any other forcible felony. Deliberate homicide is punishable by death, life imprisonment, or a term of between ten to one hundred years.

The death penalty is also available upon a conviction for aggravated kidnapping. In 1997, the Montana legislature sanctioned the death penalty for a second conviction for rape, provided the offender inflicted serious bodily injury upon the victim during each offense.

The 1999 legislature amended Montana Code § 46-18-220, which previously subjected state inmates to the death penalty if convicted of aggravated kidnapping, attempted deliberate homicide, aggravated assault or aggravated kidnapping while in state prison. The new law subjects anyone “in official detention” to the death penalty if convicted of an above-listed offense. Official detention is defined broadly. It includes any confinement or lawful detention, including detention pursuant to an arrest. The legislature also passed a law prohibiting the death penalty from being imposed upon a person less than 18 years old when the offense was committed.

The Montana Code does not currently prohibit execution of the mentally retarded. However, on June 20, 2002, the U.S. Supreme Court held in Atkins v. Virginia, 536 U.S. 304 (2002), that the execution of the mentally retarded constitutes cruel and unusual punishment prohibited by the Eighth Amendment. See § 1.6.

Roper v. Simmons, 543 U.S. 551 (2005) (holding that the Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed).

Atkins v. Virginia, 536 U.S. 304 (2002) (holding that executing the mentally retarded violates the Eighth Amendment’s prohibition against cruel and unusual punishment).

Mont. Code Ann. § 45-5-303 (2005) (providing death penalty for aggravated kidnapping).

Mont. Code Ann. § 45-5-503(3)(c) (2005) (providing death penalty for second aggravated rape offense).

Mont. Code Ann. § 46-18-220 (2005) (providing death sentence for person in official detention committing attempted deliberate homicide, aggravated assault, or aggravated kidnapping).

On April 24, 1997, the Montana Legislature passed legislation directing the state attorney general to petition the supreme court for a court order establishing standards for competency of counsel appointed to represent death-sentenced indigents on their state postconviction proceedings. 1997 Mont. Laws ch. 378, § 7. In response to this petition, the supreme court established an advisory commission who submitted proposed competency standards in October 1998. The supreme court adopted these standards for competency on June 29, 1999, and they became effective on January 1, 2000. The standards provide for the appointment of two attorneys to represent a deathsentenced indigent at trial, appellate, and postconviction stages.

The legislation also requires the trial court within thirty days of sentencing to notify a death-sentenced indigent defendant of the right to appointed postconviction counsel who meet the supreme court’s competency standards. Additionally, within seventy-five days from the date the death conviction becomes final, the sentencing court must appoint postconviction counsel unless the court determines after a hearing that the indigent defendant knowingly rejects counsel. The standards prohibit the court from appointing counsel who previously represented the defendant at any stage in the case unless the defendant and counsel agree to the appointment. Appointed counsel receive “reasonable compensation” and reasonable costs as determined by the court.

In 2005, the Montana Legislature passed the Montana Public Defender Act establishing a statewide public defender system and replacing the Appellate Defender Commission with a Public Defender Commission. Many of the provisions of the Act do not take effect until July 1, 2006.

Mont. Code Ann. § 46-8-101 (2005), (providing for indigent criminal defendant right to counsel). 

Mont. Code Ann. § 46-8-104 (2005) (providing appointment of postconviction counsel).

Mont. Code Ann. § 46-8-111 (2005), repealed by 2005 Mont. Laws, ch 449 § 74, effective 7/1/2006 (providing determination of indigence eligibility for court-appointed counsel); see 2005 Mont Laws, ch 449 establishing a statewide public defender system.

Mont. Code Ann. § 46-8-201 (2005), repealed by 2005 Mont. Laws, ch 449 § 74, effective 7/1/2006 (providing remuneration of court-appointed counsel); see 2005 Mont Laws, ch 449 establishing a statewide public defender system.

Mont. Code Ann. § 46-21-201(3) (2005), amended by 2005 Mont. Laws, ch 449 § 53, effective 7/1/2006 (requiring sentencing court, within specified time period, to appoint postconviction counsel pursuant to supreme court guidelines); see 2005 Mont Laws, ch 449 establishing a statewide public defender system.

Mont. Code Ann. § 46-21-201(3)(e) (2005), amended by 2005 Mont. Laws, ch 449 § 53, effective 7/1/2006 (requiring appointed counsel to be compensated as provided in § 46-8-201–compensation certified as reasonable by the supreme court); see 2005 Mont Laws, ch 449 establishing a statewide public defender system.

1997 Mont. Laws ch. 378, § 7 (requiring state attorney general to petition supreme court for competency standards).

Montana’s trial court of general jurisdiction is the district court. The district court exercises original jurisdiction over civil and criminal cases, including felonies and postconviction proceedings. Capital trials are held in two phases, a guilt phase and a penalty phase. In any case in which death is a potential punishment if: (1) the defendant is found guilty; (2) an enhancing act was noticed in the information; and (3) the jury unanimously finds the enhancing act occurred beyond a reasonable doubt, the court holds a penalty phase to determine the defendant’s sentence. General criminal trial procedures provided in Chapter 16 of Title 46 of the Montana Code apply to the guilt phase proceedings in a capital case. Also, a few rules and procedures apply specifically to capital cases: A juror who has conscientious objections to the death penalty may not serve on a capital case. Each side in a capital case has eight peremptory challenges, and the defendant’s voluntary absence in a capital case precludes the case from proceeding through the verdict.

State v. Gollehon, 262 Mont. 1, 864 P.2d 249 (1993) (holding that death qualification of jury is constitutional), cert. denied, 513 U.S. 827 (1994).

Mont. Code Ann. § 46-16-115(2)(h) (2005) (allowing challenge for cause in capital case where juror has conscientious objections to death penalty).

Mont. Code Ann. § 46-16-116 (2005) (providing each side in capital case eight peremptory challenges).

Mont. Code Ann. § 46-16-122(3) (2005) (voluntary absence of defendant precludes case from continuing through verdict in capital cases).

If the trier returns a verdict of guilty in a capital case, the court conducts a sentencing hearing to determine the aggravating and mitigating circumstances of the crime. This determination is made by the court alone. A jury does not participate in the sentencing process. In Ring v. Arizona, 536 U.S. 584 (2002), the Supreme Court held that capital defendants are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment. The Supreme Court reasoned that because Arizona’s enumerated aggravating factors operate as “the functional equivalent of an element of a greater offense” (Apprendi v. New Jersey, 530 U.S. 466, 494 n.19 (2000), the Sixth Amendment requires that they be found by a jury. See § 4.6.1, for further discussion.

In 2003 Montana Code § 46-18-302 was amended, in response to Ring v. Arizona, to provide that evidence of an aggravating circumstance may not be considered at the sentencing hearing unless the defendant pleaded guilty and admitted the aggravating circumstance or the trier of fact found beyond a reasonable doubt that the aggravating circumstance existed. Montana Code § 46-1-401 was also amended to provide that a penalty enhancement may not be imposed unless a defendant who knowingly and voluntarily pleaded guilty to an offense also admitted to the enhancing act, omission, or fact. The Legislature did not amend the language of Montana Code § 46-18-301, which provides for imposition of the death penalty only after a sentencing hearing where the sentencing court considers the aggravating and mitigating circumstances. At the capital sentencing hearing, the court hears evidence concerning the nature and circumstances of the crime; the defendant’s character, background, history, and mental and physical condition; the harm caused to the victim and the victim’s family as a result of the offense; and any other facts in aggravation or mitigation of the penalty. Mont. Code § 46-18-302. Evidence of an aggravating or mitigating nature introduced at the guilt phase of the trial need not be reintroduced at the sentencing phase. The court may receive any evidence of probative value, notwithstanding its admissibility under the rules of evidence. 

After receiving this evidence, the court must impose a death sentence if the evidence shows that one or more aggravating circumstances exist and that no mitigating circumstance is “sufficiently substantial to call for leniency.” If the court finds at least one aggravating factor but also finds that mitigating circumstances are sufficiently substantial to warrant leniency, it may impose a sentence for life or a term of years.

When the court imposes a sentence of death, the court must render specific written findings of fact as to the existence or nonexistence of each statutorily enumerated mitigating and aggravating circumstance. The court must pronounce sentence within 120 days of the verdict and is limited to one extension of time of up to sixty days.

Schriro v. Summerlin, 542 U.S. 348 (2004) (holding that Ring v. Arizona did not apply retroactively to cases already final on direct review).

Ring v. Arizona, 536 U.S. 584 (2002) (holding that capital defendants are entitled to jury determination of any fact on which legislature conditions increase in their maximum punishment; also holding that Walton v. Arizona, 497 U.S. 639 (1990) and Apprendi v. New Jersey, 530 U.S. 466 (2000) are irreconcilable and overruling Walton to extent that it allowed sentencing judge, sitting without jury, to find aggravating circumstance necessary for imposition of death penalty).

State v. Smith, 280 Mont. 158, 931 P.2d 1272 (1996) (holding death penalty statute that does not require court to find aggravating factor(s) beyond a reasonable doubt constitutional), cert. denied, 522 U.S. 965 (1997).

State v. Smith, 261 Mont. 419, 863 P.2d 1000 (1993) (expressing displeasure with district court’s verbatim adoption of state’s proposed findings but finding not inherently flawed to warrant reversal; stating written findings need not be filed contemporaneously with oral imposition of death penalty).

State v. Langford, 248 Mont. 420, 813 P.2d 936 (1991) (holding death penalty constitutional under state constitution; affirming McKenzie), cert. denied, 522 U.S. 1102 (1998). 

State v. Smith, 217 Mont. 461, 705 P.2d 1087 (1985) (holding jury participation in capital sentencing not constitutionally required), cert. denied, 474 U.S. 1073 (1986). 

State v. Smith, 211 Mont. 379, 704 P.2d 19 (1984) (finding statute imposes no affirmative duty on supreme court to predisclose to defendant cases it will consider in proportionality review).

State v. McKenzie, 186 Mont. 481, 608 P.2d 428 (holding death penalty does not violate Eighth Amendment or state constitution, as amended by the 1972 constitutional convention), cert. denied, 449 U.S. 1050 (1980).

Mont. Code Ann. § 46-18-301 (2005) (providing capital penalty sentencing hearing conducted before court alone; providing 120-day time limit).

Mont. Code Ann. § 46-18-302 (2005) (listing evidence that may be received at sentencing hearing; evidence of aggravating circumstance may not be considered at sentencing hearing unless defendant pleaded guilty and admitted aggravating circumstance or trier of fact found beyond a reasonable doubt that aggravating circumstance existed; evidence introduced at guilt phase need not be reintroduced at penalty phase).

Mont. Code Ann. § 46-18-305 (2005) (stating court at sentencing phase must impose death sentence if defendant pleaded guilt and admitted to, or trier of fact found beyond a reasonable doubt, one or more aggravating circumstances and court finds no mitigating circumstances sufficiently substantial to call for leniency).

Section 46-18-303 of the Montana Code sets forth ten aggravating circumstances for the court’s consideration:

(1) deliberate homicide committed while in official detention;

(2) deliberate homicide committed by an offender previously convicted of another deliberate homicide;

(3) deliberate homicide committed by torture;

(4) deliberate homicide committed by lying in wait or ambush;

(5) deliberate homicide committed as part of a scheme or operation which could cause death of more than one person;

(6) deliberate homicide committed during commission of rape, deviant sexual conduct, or incest, and victim was less than 18 years old;

(7) deliberate homicide of peace officer;

(8) aggravated kidnapping resulted in death of victim or death of victim’s rescuer;

(9) attempted deliberate homicide, aggravated assault, or aggravated kidnapping committed while in official detention by an offender who was previously convicted of deliberate homicide or is a persistent felon; and

(10) rape committed by an offender previously convicted of rape and offender inflicted serious bodily harm upon victim in course of committing both offenses.

As amended in 2003, § 46-1-401 provides that the aggravating circumstances contained in § 46-18-303 are enhancing acts, omissions, or facts, except that use of the fact of one or more prior convictions for the same type of offense or for one or more other types of offenses to enhance the penalty for a charged offense is not subject to the requirements of § 46-1-401.

State v. Gollehon, 262 Mont. 1, 864 P.2d 249 (1993) (holding lower court’s finding that conviction for deliberate homicide by accountability constituted deliberate homicide for aggravating factors determination was not error), cert. denied, 513 U.S. 827 (1994).

State v. Smith, 261 Mont. 419, 863 P.2d 1000 (1993) (holding constitutional § 46-18-303(5), defining a deliberate homicide committed as a part of a scheme or operation that, if completed, would have resulted in the death of more than one person).

State v. Langford, 248 Mont. 420, 813 P.2d 936 (1991) (holding sentencing court’s consideration of lack of remorse as aggravating factor not error), cert. denied, 522 U.S. 1102 (1998).

State v. Keith, 231 Mont. 214, 754 P.2d 474 (1988) (finding that parolee does not qualify as person serving sentence of imprisonment under § 46-18-303; § 303(7) constitutionally narrows class of death-eligible defendants).

Section 46-18-304 of the Montana Code sets forth seven specific statutory mitigating circumstances:

(1) lack of significant prior criminal activity;

(2) influence of extreme mental or emotional disturbance;

(3) extreme duress or substantial domination by another person;

(4) substantial impairment of defendant’s capacity to appreciate criminality of conduct or to conform his or her conduct to the requirements of law;

(5) victim’s participation in or consent to defendant’s conduct;

(6) defendant’s conduct was relatively minor participation as accomplice in offense committed by another person;

(7) defendant was less than18 years of age;

In addition, the statute provides that the court may consider “any other fact that exists in mitigation of the penalty.”

Smith v. McCormick, 914 F.2d 1153 (9th Cir. 1990) (holding that court applied § 403 unconstitutionally by not weighing and considering all mitigating circumstances together).

State v. Sattler, 288 Mont. 79, 956 P.2d 54 (1998) (holding that court did not err in discussing each statutory mitigating factor in its findings, even when defendant did not raise each factor; court not required to make findings on each piece of proffered mitigating evidence).

State v. Smith, 280 Mont. 158, 931 P.2d 1272 (1996) (holding that proportionality evidence cannot be considered by sentencing court as a mitigating factor), cert. denied, 522 U.S. 965 (1997).

State v. Smith, 261 Mont. 419, 863 P.2d 1000 (1993) (holding postconviction conduct is relevant mitigation evidence; therefore, court erred resentencing defendant without ordering a current presentence report).

State v. Langford, 248 Mont. 420, 813 P.2d 936 (1991) (allowing lack of remorse as evidence of absence of mitigating factors; holding defendant’s lack of prior violent criminal activity does not require sentencing leniency), cert. denied, 522 U.S. 1102 (1998).

State v. Dawson, 233 Mont. 345, 761 P.2d 352 (1988) (holding court did not err finding mitigating factor 304(1)(a), lack of significant history of prior criminal activity, but finding factor did not warrant leniency; prosecutor’s comment regarding defendant’s silence at trial was not an improper comment on defendant’s failure to testify because reference was in response to defense presented at trial; finding that defendant has demonstrated no remorse or genuine concern or respect for human life was properly viewed as absence of a mitigating factor).

Fitzpatrick v. State, 194 Mont. 310, 638 P.2d 1002 (1981) (finding statute placing burden on defendant to prove mitigating circumstances in order to avoid penalty of death constitutionally sound because evidence in mitigation does not have to do with guilt or innocence).

The Montana Supreme Court has appellate jurisdiction over final judgments of the district courts. Additionally, the court conducts an automatic, en banc review of every death sentence. The court considers the mandatory sentencing review and any direct appeal in a consolidated proceeding. The court’s sentencing review is limited to determining: (1) whether the sentencing court imposed the death sentence under the influence of passion, prejudice, or any other arbitrary factor, (2) whether the evidence supports the court’s finding of the existence or nonexistence of the aggravating or mitigating circumstances, and (3) considering both the crime and the defendant, whether the death sentence is excessive or disproportionate to the penalty that the court imposed in other § 46-18-310 sentencing hearing cases. 

To assure that a death sentence is not disproportionate to the degree of the defendant’s culpability for the victim’s death, in 1996 the Montana Supreme Court rejected the U.S. Supreme Court’s Tison analysis, adopting instead an Enmund proportionality analysis grounded in the state constitution. See State v. Kills on Top, 279 Mont. 384, 928 P.2d 182 (1996). Although the supreme court had affirmed the defendant’s sentence on appeal in 1991, it reversed itself, as well as the defendant’s death sentence, in the postconviction appeal. 

Montana’s Rules for Automatic Review of a Death Sentence consist of eleven rules defining the procedures involved in such review. The Rules require the county attorney to file in the district court a notice of automatic review within five days after a death sentence is imposed. Within sixty days after receiving certification of the trial court record, the supreme court initiates the automatic review. This time period can be extended for good cause. The automatic review has priority over other cases before the supreme court. The rules also provide to the parties the right to brief submission and oral argument.

The defendant may appeal any final judgment of conviction as well as orders affecting the defendant’s substantial rights. The supreme court cannot reverse a conviction on trial court error unless the record shows that the defendant suffers prejudice as a result of the error. On appeal, the supreme court may: (1) reverse, affirm, or modify a judgment or order; (2) set aside, affirm, or modify proceedings dependent upon the judgment or order from which the appeal was taken; (3) reduce an offense to a lesser included offense; (4) reduce the punishment imposed by the trial court; or (5) order a new trial.

State v. Sattler, 288 Mont. 79, 956 P.2d 54 (1998) (holding that if one of several statutory aggravating factors found not to exist on appeal, court not required to reverse or remand as long as it finds inapplicability of factor does not render death penalty arbitrary or capricious).

State v. Smith, 280 Mont. 158, 931 P.2d 1272 (1996) (holding that supreme court’s role in reviewing death sentence is not to reweigh aggravating and mitigating circumstances but rather to independently determine whether evidence supports trial court’s findings; proportionality review does not violate due process), cert. denied, 522 U.S. 965 (1997).

State v. Kills on Top, 279 Mont. 384, 928 P.2d 182 (1996) (adopting Enmund-type proportionality analysis grounded in the state constitution and reversing death sentence), reh’g denied January 2, 1997.

State v. Smith, 261 Mont. 419, 863 P.2d 1000 (1993) (holding that remand for sentencing to different judge appropriate in death penalty case when error found relating to mitigation findings).

State v. Langford, 248 Mont. 420, 813 P.2d 936 (1991) (finding that automatic supreme court review prevents random or arbitrary imposition of the death penalty), cert. denied, 522 U.S. 1102 (1998).

Mont. Code Ann. § 46-18-307 (2005) (providing automatic review by supreme court of death sentences).

Mont. Code Ann. § 46-18-308 (2005) (providing sixty days for supreme court initiation of automatic review; consolidating automatic review and direct appeal if any; setting automatic review cases as priority).

Mont. Code Ann. § 46-18-310 (2005) (listing issues court shall determine on mandatory sentencing review; requiring clearly erroneous standard of review).

Mont. Code Ann. § 46-20-701 (2005) (providing that no cause reversed unless showing of prejudicial error).

Mont. R. Death Sent. Rev. 1 (stating violation of rules does not entitle party to relief unless right to a fair hearing is significantly prejudiced).

Mont. R. Death Sent. Rev. 2 (providing for notice of automatic review by county attorney within five days of death sentence).

Mont. R. Death Sent. Rev. 6, 7 (providing for briefs from parties and en banc oral argument on automatic appeal).

Montana provides postconviction collateral relief for challenges to the validity of a conviction or sentence. Montana’s postconviction review statute incorporates all common law remedies, including the writ of habeas corpus.

An application for postconviction relief must allege that the sentence is in violation of the state or federal constitution or laws, that the sentencing court was without jurisdiction, or that the trial proceedings would have otherwise been subject to attack through a writ of habeas corpus or other common law writ.

A petition for postconviction relief is made to the sentencing court. It must be filed within one year of the date of conviction, or, if the claim is based on newly discovered evidence which would establish petitioner’s innocence, within one year from the date the evidence is discovered or reasonably should have been discovered. 

In a postconviction proceeding, the district court has the discretion to dismiss the petition on its face, dismiss the petition after briefing, or adjudicate the issues. The district court may receive proof by affidavit or deposition, or hold an evidentiary hearing. The rules of civil procedure apply in postconviction proceedings, to the extent they are applicable and are not inconsistent with the postconviction statute. 

In death penalty cases, the court is required to promptly hold a conference to schedule an expeditious resolution of the proceeding. The court must issue its opinion within ninety days of any hearing or within ninety days of the submission of briefs if there is no hearing.

State v. Redcrow, 294 Mont. 252, 980 P.2d 622 (1999) (holding that for statute of limitation purposes, conviction means the date of verdict).

Hawkins v. Mahoney, 294 Mont. 124, 979 P.2d 697 (1999) (setting forth 1997 amendment, precluding postconviction relief petitions from being filed in the supreme court and imposing new one-year statute of limitation that applies only to convictions that became final after April 24, 1997, or to convictions that became final between April 24, 1996, and April 24, 1997, if a petition was filed within one year after April 24, 1997 (quoting Compiler’s Comments)).

Hagen v. State, 293 Mont. 60, 973 P.2d 233 (1999) (holding that nonrecord-based ineffective assistance of trial counsel and ineffective assistance of appellate counsel claims properly brought in a postconviction relief petition).

Gollehon v. District Court, 271 Mont. 363, 897 P.2d 1058 (1995) (holding, under former five-year statute of limitation, that state has right to seek execution of death sentence during five-year period within which postconviction petition can be filed).

Mont. Code Ann. § 46-21-101(1) (2005) (providing grounds for postconviction collateral petition).

Mont. Code Ann. § 46-21-102 (2005) (providing that petition must be filed within one year of conviction or if claim based on newly discovered evidence within one year from date evidence discovered).

Mont. Code Ann. § 46-21-105 (2005) (providing amendments; subsequent petitions; waiver of grounds for relief).

Mont. Code Ann. § 46-21-201(1)(b) (2005) (duty imposed on court to expedite death penalty proceeding; ninety-day decision deadline).

Mont. Code Ann. § 46-21-201(5) (2005) (providing for evidentiary hearing and proof by other evidence such as affidavits and depositions).

The statutory habeas writ is available to inquire into the cause of imprisonment or restraint, but it is not available to attack the validity of a prisoner’s conviction or sentence. In such cases, a postconviction collateral petition is the appropriate remedy.

Kills on Top v. State, 273 Mont. 32, 901 P.2d 1368 (1995) (holding substitution of postconviction relief proceedings is not unconstitutional suspension of writ of habeas corpus), cert. denied, 516 U.S. 1177 (1996).

Mont. Code Ann. § 46-21-101 (2005) (providing that error alleged under writ of habeas corpus should be raised in postconviction relief petition).

Mont. Code Ann. § 46-22-101 (2005) (providing that writ of habeas corpus not appropriate for attacking validity of sentence or conviction).

Either party may appeal a district court’s decision to the supreme court within sixty days of the entry of a postconviction order.

Mont. Code Ann. § 46-21-203 (2005) (providing either party may appeal to the supreme court on order entered on postconviction petition within sixty days).

Montana law provides that the failure to make a timely objection during trial to any alleged error affecting the judgment of the court constitutes a waiver of the objection. Errors concerning jurisdictional or constitutional rights will be disregarded on appeal if not objected to at trial, unless the error is shown to be prejudicial to the guilt or sentencing determination and the defendant establishes either: (1) that the right claimed did not exist at the time of trial and that it has a retroactive application, (2) that the state suppressed evidence that prevented the claim from being raised, or (3) that “material and controlling facts” upon which the claim is based were not known to the defendant or the defendant’s attorney and could not have been ascertained by use of reasonable diligence.

Grounds that could reasonably have been raised on direct appeal may not be raised in a postconviction proceeding. Additionally, any grounds for relief that were not raised in the original or amended petition are considered waived. However, the court may permit a subsequent petition if the petition alleges grounds which could not reasonably have been raised in the first petition, except for an ineffective assistance claim against prior postconviction counsel.

Montana Supreme Court:

Smith v. State, 303 Mont. 47, 15 P.3d 395 (2000) (affirming trial court’s dismissal of postconviction petition in capital case because issues either procedurally barred or barred by res judicata), cert. denied, 533 U.S. 917 (2001).

Dawson v. State, 301 Mont. 135, 10 P.3d 49 (2000) (declining to reconsider claims raised on direct appeal because petitioner failed to make a showing that the “ends of justice” would be served by reconsideration), cert. denied, 532 U.S. 928 (2001).

Gollehon v. State, 296 Mont. 6, 986 P.2d 395 (1999) (declining to rule whether claims raised in postconviction proceeding were raised on appeal, notwithstanding that petitioner sought clarification to assure exhaustion of claims in federal court; holding claims-if properly raised-were barred by res judicata and if improperly raised were procedurally barred), cert. denied, 529 U.S. 1041 (2000).

State v. Redcrow, 294 Mont. 252, 980 P.2d 622 (1999) (holding “miscarriage of justice” exception to § 46-21-102 procedural bar arises when a jury could find, in light of new evidence, that the defendant is actually innocent of the crime).

Hans v. State, 283 Mont. 379, 942 P.2d 674 (1997) (holding when counsel has abandoned defendant’s appeal, defendant should raise in one postconviction relief petition all claims that could have been raised on direct appeal, along with all postconviction relief issues; court rejected procedure allowing “out of time” appeal when counsel abandoned defendant’s appeal).

Kills on Top v. State, 273 Mont. 32, 901 P.2d 1368, 1387 (1995) (applying § 46-21-105(2), holding claims which could reasonably have been raised on appeal are procedurally barred from consideration in postconviction proceedings; bar not limited to cases where state establishes that claims were withheld from appeal to cause delay), cert. denied, 516 U.S. 1177 (1996).

Mont. Code Ann. § 46-20-104 (2005) (providing that failure to make objection during trial waives objection).

Mont. Code Ann. § 46-21-105(2) (2005) (providing postconviction relief proceedings; waiver of grounds for relief).

At the time of sentencing, the trial court sets a date for execution between thirty and sixty days from the date of sentencing. After setting the date, the court must sign an execution warrant within five days. The warrant, which communicates the date of execution and the duration of the warrant, is delivered to the director of the department of corrections.

There must be a currently valid execution warrant for an execution to occur. Accordingly, if the date set for execution by a warrant passes while a judicial stay is imposed, the sentencing court must set a new date twenty to ninety days from the date the new warrant is issued. The capital prisoner is entitled to be present in court on the day the new execution date is set. If the governor stays an execution by granting a respite, the death warrant remains valid and the execution occurs on the date the respite expires.

Montana inflicts death by lethal injection. State statute requires that executions occur at the state prison outside of public view. However, the warden must allow twelve witnesses to the execution, three of whom the prisoner may designate.

Langford v. State, 287 Mont. 107, 951 P.2d 1357 (1997) (requiring all executions to be performed by lethal injection, not ex post facto law or bill of attainder under state constitution, as applied to prisoner who opted for execution by hanging under former law), cert. denied, 522 U.S. 1102 (1998).

State v. McKenzie, 271 Mont. 32, 894 P.2d 289 (1995) (holding failure to execute death warrant on original date fixed does not result in discharge of prisoner but rather requires court to fix new date for execution).

Mont. Code Ann. § 46-19-103(1) (2005) (requiring court to set execution date with pronouncement of death sentence; reissue execution date if passes during stay; presence of defendant).

Mont. Code Ann. § 46-19-103(3) (2005) (providing lethal injection as method of execution).

Mont. Code Ann. § 46-19-103(4) (2005) (requiring execution warrant issued within five days of death sentence; delivery of warrant to department of corrections’ director).

Mont. Code Ann. § 46-23-315 (2005) (providing for grant of respite by governor during period when application for clemency is being considered).

Montana law suspends execution while the defendant lacks mental fitness. If there is good reason to believe that the defendant lacks mental fitness, the district court will conduct a competency hearing. If the defendant is found unfit, the court will suspend the execution and remand the defendant to the custody of the state hospital until fitness is reestablished. Once the court determines that the defendant has regained fitness, the court must direct the warden to discharge the death sentence. However, if the court determines that the sentence would be unjust considering the time spent in the state hospital, the court may suspend the death sentence and order the defendant discharged. 

The court orders the suspension of an execution if three physicians determine that the defendant is pregnant. The governor issues a new death warrant specifying a date for the execution upon satisfaction that the defendant no longer is pregnant.

Mont. Code Ann. §§ 46-19-201–202 (2005) (providing procedures regarding mental fitness of death row inmate).

Mont. Code Ann. §§ 46-19-203–204 (2005) (providing procedures regarding pregnancy of death row inmate).

When a notice of automatic review of a death sentence is filed, the district court enters a stay of execution. The stay expires upon issuance of remittitur on the supreme court’s order affirming, vacating, or modifying the death sentence. If the stay expires after the execution date or within five days before the execution date, the district court sets a new execution date.

A petitioner seeking postconviction relief may seek a stay of execution from the district court.

Mont. Code Ann. § 46-20-204(1) (2005) (providing for stay of execution issued on initiation of appeal).

Mont. R. App. P. 7 (providing for stay of execution during appeal of postconviction judgment).

Mont. R. Death Sent. Rev. 9 (providing for stay of execution on automatic appeal; expires on remittitur of Supreme Court; remand for new execution date if stay expires within five days prior to execution date).

The governor has the power to grant clemency subject to statutory procedures. The Montana Code defines clemency as mercy exercised by the governor, such as commutation of the death sentence to one less severe, respite (stay of execution of the sentence), or pardon (relieving the convict of all legal consequences of the conviction). In capital cases, an application for clemency may not be filed while an automatic review is pending. An application must also be filed within ten days after the district court sets a date of execution.

While clemency is a matter for the governor’s discretion, the governor may exercise these powers only upon an application for clemency filed with the state Board of Pardons. The Board of Pardons, after investigating the case and holding a hearing if favored by majority vote, recommends to the governor whether clemency should be granted or denied. The Board of Pardons may hold a public hearing concerning the grant or denial of clemency after giving appropriate notice. The governor’s grant or denial of clemency is not appealable.

Mont. Code Ann. § 46-23-301(2) (2005) (requiring filing of all clemency applications with board; capital defendant may not file application while automatic review pending and must file application within ten days after district court sets execution date).

Mont. Code Ann. § 46-23-301(3) (2005) (providing that governor’s clemency ruling final).

Mont. Code Ann. § 46-23-315 (2005) (providing authority of governor to grant respite).