State v. Cooksey , 2016 MT 75N ( 2016 )

March 29 2016
DA 15-0198
Case Number: DA 15-0198
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 75N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
BOBBY COOKSEY,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourteenth Judicial District,
In and For the County of Musselshell, Cause No. DC 09-13
Honorable Randal I. Spaulding, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Bobby Cooksey, Self-Represented, Deer Lodge, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant
Attorney General, Helena, Montana
Kent Sipe, Musselshell County Attorney, Roundup, Montana
Submitted on Briefs: March 2, 2016
Decided: March 29, 2016
Filed:
__________________________________________
Clerk
Justice Patricia Cotter 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 Bobby Cooksey (Cooksey) was convicted of deliberate homicide on September
20, 2010. On January 5, 2011, the District Court imposed Cooksey’s sentence, which
included restitution to the victim’s family. Cooksey petitioned to have his firearms and
ammunition exempted from the writ of execution, but after a hearing on the matter, the
District Court denied his petition on April 28, 2011. We affirmed his conviction on
appeal. State v. Cooksey, 2012 MT 226, 366 Mont. 346, 286 P.3d 1174. Cooksey then
petitioned the United States Supreme Court for a writ of certiorari, which the Supreme
Court denied on April 15, 2013. Cooksey v. Montana, 133 S. Ct. 1836 (2013). That day,
April 15, 2013, is the day Cooksey’s conviction became final for purposes of
postconviction review. Section 46-21-102(1)(c), MCA (“A conviction becomes final for
purposes of this chapter when . . . (c) if review is sought in the United States supreme
court, on the date that that court issues its final order in the case.”).
¶3 Cooksey had one year from the day his conviction became final to petition for
postconviction relief (PCR). Section 46-21-102(1), MCA (A petition for postconviction
relief “may be filed at any time within 1 year of the date that the conviction becomes
final.”). On August 13, 2014, more than a year after his conviction became final,
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Cooksey filed a motion requesting that the District Court vacate its April 28, 2011 Order
denying his motion to have his firearms and ammunition exempted from execution.
Cooksey’s motion could be construed as a PCR petition because he is attacking the
legitimacy of his sentence, § 46-21-101(1), MCA, which included a restitution order but
did not specifically list the personal property that would be subject to execution. The
District Court concluded that Cooksey’s claims are barred whether they are construed as
a PCR petition or not, and denied the motion to vacate. Cooksey appeals the denial of his
motion to vacate.
¶4 If Cooksey’s motion to vacate is construed as a PCR petition, see § 46-21-101(1),
MCA, his claims are time barred because he did not bring them within a year of the date
on which his conviction became final, § 46-21-102(1), MCA. Further, the issues he
raises are substantively barred because they could have been but were not raised on direct
appeal. Section 46-21-105(2), MCA (“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.”); see e.g. Ellenburg v. Chase, 2004
MT 66, ¶ 19, 320 Mont. 315, 87 P.3d 473.
¶5 If Cooksey’s motion to vacate is construed as something other than a PCR
petition, his claims are barred because he did not timely appeal the District Court’s April
28, 2011 Order denying his claimed exemptions. See M. R. Civ. P. 59(e)-(f), 60(b)(1);
M. R. App. P. 4(5). Further, in his brief on appeal, Cooksey raises no error made by the
District Court and states no basis for reversing the District Court’s decision. His only
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argument seems to be based on his personal belief that his firearms and ammunition
should not have been subject to execution. Because Cooksey has failed to support his
appeal with any argument or authority, as he is required to do under Rule 12(1)(g) of the
Montana Rules of Appellate Procedure, he has failed to carry his burden of proving error
on the part of the District Court. “We have repeatedly held that it is not this Court’s
obligation to conduct legal research on behalf of a party or to develop legal analysis that
might support a party’s position.” State v. Cybulski, 2009 MT 70, ¶ 13, 349 Mont. 429,
204 P.3d 7.
¶6 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, the case presents a question controlled by settled law or by the clear
application of applicable standards of review. The District Court did not err in
concluding that Cooksey’s petition was time barred.
¶7 Affirmed.
/S/ PATRICIA COTTER
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ BETH BAKER
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