STATE v MCKENZIE
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No. 95-161 IN THE SUPREME COURT OF THE STATE OF MONTANA 1995 STATE OF MONTANA, Plaintiff and Respondent, -VS- DUNCAN PEDER MCKENZIE, Defendant APPEAL FROM: and Appellant. District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable Thomas M. McKittrick, Judge presiding. COUNSEL OF RECORD: For Appellant: Gregory Timothy Seattle, For A. Jackson, K. Ford, Washington Jackson &Rice, Helena, MacDonald, & Hoague Montana; Bayless, Respondent: Hon. Joseph P. Mazurek, Attorney General, Pamela P. Collins, Assistant Attorney General, Helena, Montana Submitted on Briefs: Decided: Filed: Cl&-k April 11, 1995 AB!ril 20, 1995 Justice James Duncan C. Nelson Peder Judicial his McKenzie, District consider Court, a death dismiss McKenzie's to The issues the appeal, 11, before from County, Court in Court McKenzie resetting Court. of order his Eighth request to date and State's motion to the dated this the execution his granted an the denying of 1995 order, this of an order resetting This April Opinion appeals to warrant. the the Cascade objections issuing Pursuant delivered April opinion 11, 1995. follows. are: 1. Whether Court's has a right to appeal the of the execution date? 2. Whether the an execution has expired? 3. Whether the District Court had jurisdiction to hear arguments regarding McKenzie's substantive the resetting of the execution date? District date District Court has jurisdiction after an earlier execution to set date PROCEDURAL BACKGROUND In January, homicide Court, 1975, and aggravated Cascade convictions Mont. here. McKenzie state ultimately has and recent stay by the United 23, at The 577 fully federal eight of execution times 1995. for underlying these McKenzie's State v. McKenzie and will not be repeated and sentence conviction none McKenzie's since its in November District death in proceedings, States to forth his entered District 1023, P.2d on the merits. least facts deliberate Judicial Eighth of set challenged successful stayed February 278, are the was sentenced 1975. and sentencing 171 been 3, was convicted in McKenzie March (1976), McKenzie kidnapping County. on conviction numerous Duncan Court The following for the provides 2 of which death has been sentence has The most imposition. of 1988, in was dissolved District of Montana a brief review of on the procedural history,of In this McKenzie's McKenzie's first direct 171 Mont. by United 278, we (1980), 186 Mont. conviction the McKenzie then v. 5, v. Osborne which Risley Cir. McKenzie (1988). a writ of v. McKenzie corpus with court habeas court's 1415, and Ninth January denied 17, of for McKenzie's request for On February 23, the McKenzie denied, 488 U.S. States 27, 3 Court on October 11, writ 16, 1985, filed his the federal district federal the (9th district Cir. for 1994), rehearing Supreme The Court States habeas McKenzie which the of on April 1985, States of United Supreme denied petition certiorari. a rehearing 1995, later. cert. petition writ petition in for McCormick United McKenzie years affirmed the ruling. 368. petition court 1995, Court 901. that Circuit post- court's 488 U.S. second for district Court McKenzie's McKenzie's McKenzie federal seven (1988), v. corpus the federal McKenzie this District that 1525, On June The The United We denied in v. petition 640 P.2d the his petition also him 842 F.2d order. denial, habeas which Court. denied. of petitioned filed an unpublished second On this 26, McCormick then a court. against certiorari, McKenzie 1988. filed 195 Mont. 1988), remands by State affirmed writ was resolved (9th for for two reconsideration Court (1981), McKenzie 428. district and this affirmed v. after conviction. McKenzie state a petition 901 in in 1980, for Court State In Court 608 P.2d 1981, petition, filed court, 481, this conviction. 1023. McKenzie's relief denied his Supreme affirmed January of proceeding, 577 P.2d States Court, On state appeal (1976), the case. denial District of 27 F.3d en bane. Court also denied denied certiorari. Court for the District of 1988, Montana during habeas the corpus, execution Court, effect, Cascade State the including a hearing to a objections McKenzie Execution The argument "reimpose on for raised that the hearing the to death March 27, the reset of District execution date. filed Date" arguments court the in did not execution and overruled in his "Memorandum Court found that and this have date The District raised Court all Supporting was of the Objections Setting." District its date was merely a procedural proceeded with the hearing to the of McKenzie several 1995, writ Execution sentence." execution set the in no stays being matter, Request for Judicial reset this granted petition Eighth to McKenzie the hearing on execution There the a hearing to and that of second moved hearing memorandum. jurisdiction, to the Objections document stay and dissolved. for to supporting the of McKenzie's County, "Defendant's held pendency be vacated in Prior ordered that execution act and in ministerial set the execution for May 10, 1995, a notice of date resetting act, and The court a death invoke this date. and the issued warrant. McKenzie Court's appellate The State moved had no right would that of give the the motion filed of rise matter parties' to dismiss jurisdiction to dismiss appeal to this appeal over the the appeal because there Court's appellate be fully arguments, on April briefed 11, is DISCUSSION to Court's grounds no appealable jurisdiction. after an order 1995. 4 District on the and, issued seeking careful granting rulings. that McKenzie order which We ordered consideration the State's 1. The State because contends under Montana defendant only judgment which Section from rights; execution Courts is have a ministerial 1994), also 247; State Commonwealth (Va. State not merely of the that sentence. setting a judicial act. See, 895; Pate Miller 1949), v. (Kan. State 1950), 55 S.E.2d 33. order substantial order the the after the McKenzie's that by defendant." that executed maintains appeal taken the argues affect of and orders rights or 887, v. be of conviction recognized and not right may a judgment long 518 N.W.2d did no appeal The court not has substantial date State date U [aln MCA. the The McKenzie judgment the execution rather, judgment. P.2d a final affect the that law, 46-20-104(l), resetting RIGHT OF APPEAL March 3, 1975 resetting the We agree. an execution State v. Joubert (Okla.Crim. 217 287; is (Neb. 1964), P.2d As stated date 393 Rose v. by one court: The refixing or resetting of the time for execution, where for any reason the judgment of death has not been is a merely ministerial act, which, at common executed, law, as we have seen, generally devolved upon the sheriff, but which under our statute devolves upon the court in which the conviction was had. Pate -I 393 P.2d at In resetting performing 1975 249. the a ministerial judgment which substantial rights accordingly, the date is not We also execution execution District cannot Court i.e., carrying out McKenzie sentenced an appealable date District to function, were conclude date, that not the implicated Court's order was merely the this resetting 3, McKenzie's death. by March proceeding, the execution order. the be defined District Court's as an appealable 5 order resetting judgment. the Under Montana that law, the is a judgment defendant that the pronounced is by resetting the and it judgment the once his except provision 839 in 1975 the the the fixing lies." or is not -, Pate 393 McKenzie nor merely executed the and the death execution sentence has to for a sentence penalty never been not have 1268. reset v. We would the allow execution to the the life has to imprisonment, been signed, the or modify (19921, 254 Mont. Hanners conclude that District date, the there Court is to original no amend, judgment death. ARGUMENT District the execution he was sentenced McKenzie to vacate the JURISDICTIONAL that of jurisdiction State would sentencing and sentence lacks McKenzie after judgment 1267, argues Court original law which sentencing time It District judgment resetting McKenzie the In judgment "resentence" the that 2. at order original that by law. P.2d the hearing jurisdiction not 1975; sentence as provided 526, of the sentence MCA. "the was "sentenced" request a valid imposing the that: penalty. 3, note we to vacate because, death March and grant at the court. Finally, jurisdiction did McKenzie on by any 524, adjudication includes no appeal Court the it. "imposed" court order the 46-l-202(10), under such District before vacated it from "reimpose" death, it by a court 250. Here, WFlS and if recognized execution adjudication guilty, Section have of "an guilty, court." date as or not is courts a new judgment, did guilty the other at defined defendant addition, P.2d is date because had no provision statutory time 6 did Court for for the the execution not law in resetting have effect of had passed. The law in provided effect that: at the ' [iln set the date of (30) days nor more than pronounced." recodified at within he was the reset time in that a court shall stay of date Court to Because date McKenzie's Mont. the 299, correctly be had to conducted to elapsed. upon to provide dissolution § 46-19-103(l), set (later no power date to sentence to McKenzie, to court days thirty as amended a new execution duty of MCA, the a new execution concluded was merely is that P.2d setting rights in date. date, a District and has no effect not the State v. the date order thereby at Therefore execution the resetting or ministerial were See, 1000. the that a procedural law execution 605 in sixty the MCA, was amended substantial law resetting date had the court than according execution and the we have previously controlling the the do otherwise. execution thus, from RCM (1947), an According has a mandatory not death, s 46-19-103(l), set execution. discretion the 1981, be less days frame, if of Therefore, sentenced, execution However, MCA). sentenced must 95-2303(b), sixty-day the (60) was originally sentence which sixty Section time the execution as 5 46-19-103, the McKenzie pronouncing shall is time time act affected, of the Coleman to the court's (1979), District pursuant and, Court 185 acted s 46-19-103(l), MCA. In addition, the initial we find execution authority to "the failure does not but requires reset to date the execute result in the no merit the court has to McKenzie's passed, date. Other a death of the District courts have warrant discharge to fix on the date that Court has the no that date sentenced for once recognized original a prisoner a new 7 argument fixed to die, execution." Joubert, 518 N.W.2d As stated 290, "the death his McKenzie jurisdiction calling in the in McKenzie part: not or his also U [tlhe to based following before to reset the arose in fixing did Judge shall not or of did judge have because not enter have 5 3-1-804(b), the McKenzie jurisdiction this Court's who has duty argues the an order date. of that original conferring of the was found guilty of and Judge Nelson imposed the the County, Eighth case, the 1976, argument in of Judicial trial. penalty. 8 Ninth is Judicial subsequently McPhillips homicide death the McKenzie and Judge purposes deliberate 14, lacked McKenzie's substitution. jurisdiction March McKittrick McPhillips. of of background. by for order that R.D. Nelson County to district judges." Pondera J. Cascade to the Court cause for procedural Judge to a immunity requires first execution McPhillips assume execute to in pursuant proposition disqualified Robert but at McKittrick. the jurisdiction District 217 p.2d failure result date successor, points for case Miller, District execution have authority This the district on Judge on the that did judge not to die, subsequent McKittrick that does or disqualified all jurisdiction as claims reset substituted fixed in execution." provides been Court hold sentenced also to MCA, which date a person for Supreme uniformly on the of presiding Kansas authorities a new date Judge 891. by the warrant discharge at called District Nelson Court moved Thereafter and aggravated The execution in the to cause McKenzie kidnapping, date was set for this April 30, 1975, however it was stayed pending appeal expired and to Court. After remittitur, William H. Coder Judicial date by Judge Nelson's succeeded Judge Court. Coder District execution Judge term Nelson had as a judge In our not have before 14, to That court continue Eighth we issued in controls that effect. here, stay I set a new date sentenced by Judge Judge court. Court, the of is in which shall, . upon _I' in statute, which dissolution McKenzie the of in the Eighth Judicial District the defendant District) date we conclude the was properly a judge that has the without and signing that was previously statutory more, to perform court judges, and MCA, governs, 9 authority (as would 5 other ministerial warrant. MCA, which not and under any death the is sentenced." the 5 3-l-804, district (4), court that District in § 46-19-103(l) "the of MCA Judicial MCA, of judge Eighth (4), substitution district the and Moreover, in Ponder-a in 46-19-103(l) an execution the § 46-19-103(l), portion that McKittrick setting that date, judge another did a judge Nelson, Judge judge We held execution however, execution Accordingly, district Coder case. order, sentenced McKittrick "court in The relevant was previously Judge presiding the pronounced date. the call the provides defendant reset to of that execution original was required time was not (1993), to the resetting previously we concluded could jurisdiction order sentence the judge with At the which judge the reset had to be returned county. of 1976 order jurisdiction a district cause to March basis an the Nelson. on the issued in Judge act controls reposes the Rather, applicable. it of the act of the setting court in execution which date the and District original presiding judge district court is not in before sentenced--here our order Pondera County must the warrant court may set in the the Eighth indicating appoint the another a new execution date controlling. 3. McKenzie's reset the jurisdiction death properly execution was date not to penalty before claims The District on appeal. hearing SUBSTANTIVE substantive Court the death Therefore, Court. judge was defendant Judicial the signing a Court and McKenzie's Court not concluded was a procedural sentence this are resentencing consider CLAIMS Judge Likewise, on appeal. , Justices e that before the claims to act. McKittrick those this hearing and ministerial substantive itself. properly The had relating claims are no to not Hon. E'd P. McLean, sitting for Justice Trieweiler District Terry Judge N. Justice W. William Leaphart, dissenting. I dissent from the Court's I remand would consideration the dismissal case constitutes cruel the United States the District that 20 years punishment and unusual under the 8th Amendment to Constitution Justices would on the "benefit courts. United from further (March 27, 1995) without is an issue row Section 22 of the two of the recently indicated by the lower States They also and Breyer). noted state and federal Supreme Court, the two Justices foundation." on death at least Stevens is "novel," for which study" United (Justices II, Court Supreme Court States Lackey v. Texas, such a claim and Article This Montana Constitution. appeal. contention of appellant's to of this No. 94-8262 While noting it commented that that "not is that: Though the importance and novelty of the question presented by this certiorari petition are sufficient to also provide warrant review by this Court, those factors a principled basis for postponing consideration of the issue until after it has been addressed by other courts. [Emphasis added. 1 The Lackey row for 17 years. the Court lower Justices can properly courts I7-year case involves time is system through if is McKenzie, 1975--some attributable as of this 20 years. who has been on death and Breyer the merits attributable frivolous to prosecutorial has been under During the 12 course that, before argument, the as to how much of that to petitioner's repetitive, date, suggest of this make a determination judicial any, Stevens determine must first period a defendant filings abuse of the and how much, or institutional a death of that sentence 20-year delay. since period, McKenzie court, has pursued the Ninth Circuit Supreme Court. court appeals Court At this an argument If juncture, for cannot some determinations a legitimate filings. bootstrap himself abusing Obviously into a cruel advantage While I do not necessarily McKenzie's argument, it issue the federal the analysis case. the federal will suggested raised argument, makes were and which allow constitute a defendant punishment to argument the repetitive is merely by filing be in a position by McKenzie's has a matter any of time rather this than issue waiting down the road--at the position "Objection to 13 that been before in the Lackey with which time McKenzie of delay. the substantive for at a remand from two years Request the cases to be dealt for to of the presently Stevens and Breyer that merit death penalty to argue an additional has taken is consideration Court subjecting by Justices two years there that me Supreme to start date that to I would prefer possible The Court That court cannot agree States are going courts McKenzie has numerous filings through is apparent and it Accordingly, the earliest row, and petitions. United courts and which the trial of appeal and unusual appeals only, until States Lackey may have argument. the Court of meritless "postponed" on death addressed of the right the system to his by wait that this by the trial were frivolous as to which of McKenzie's exercise frivolous filings stronger be adequately United we have no findings 17-year an even before and the is assumed, arguendo, based upon his potential however, it and petitions of Appeals as to which of these various were meritorious. the numerous Execution issues Date" (including issues the cruel for appeal legitimately of and substantive) time is for to raise substance rather this earlier in recantation of v. Perry (1988), Court should to adopt given man is look to the For pleading. 455, 758 P.2d 268, murder some 17 years upon the contended alleged that post-conviction on such petitions limit declined for (non- However, based The State issue a setting condemned 232 Mont. a new trial only for form of his was a petition time the of second-degree an accomplice. the statutory This and "technical" moved for the ministerial issues--we the only means of redress 1978. purely case than 1971, since may be correct. constitutional in State are not proper was the request execution--a penalty claim), context court who had been convicted Perry, punishment present Technically a death purporting that the the trial act. this example, in before a date that and unusual Perry's review had expired the State's and as of position. Whereas Perry's motion for a new trial cannot technically be denoted a petition for habeas corpus, nor do we treat it as such, the claim nevertheless sounds in the nature of a petition for habeas corpus. Perry, 750 P.2d at 273. Despite the Court addressed Perry incorrect had failed McKenzie, for 46-21-102, delay MCA. that of of the the "motion" the and concluded motion pleading, that he was the victim of an unlawful 758 P.2d at 276. like filing before substance to prove Perry, conviction. deadline the form Perry, is petitions However, actual well beyond the for post-conviction the argument implementation 14 review. as to of 5-year the whether death statutory Section a lengthy sentence constitutes cruel argument passage very of a significant sending addressed address unusual by its which, In dismissing are and this this it more thorny at for this punishment nature, period constitutional some future cannot a constitutional be raised until the of time. appeal, matter is the courts on to the issue. point of the State federal courts I fear and that it that of Montana without we will will having have to become all the delay. Justwe/ I the
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