Opinion
OP 23-0167
03-28-2023
JAY DONALD WITKOWSKI, Petitioner, v. PETER BLUDWORTH, Respondent.
ORDER
Jay Donald Witkowski has filed a Petition for Writ of Habeas Corpus, indicating that his sentence is illegal because none of the time was suspended, resulting in illegal incarceration. He contends that he has been ''excessively charged and sentenced excessively . . . ." Witkowski raises additional claims, including unlawful charge and conviction; lack of physical evidence because no surveillance video exists; an invalid plea due to his ''extreme mental duress at that time[;]" violations of due process, and ineffective assistance of counsel. Witkowski requests dismissal of the aggravated kidnapping conviction and reduction of his sentence to run concurrently with his other sentence.
This Court is familiar with Witkowski's history. In October 2017, the Valley County District Court sentenced Witkowski to a seventy-year prison term, no time suspended, for deliberate homicide, followed by a consecutive, ten-year term as a weapons enhancement. In February 2018, the District Court sentenced Witkowski for aggravated kidnapping of a guard while in jail to a forty-year prison term.
In October 2018, Witkowski, on his own behalf, sought an untimely appeal of the deliberate homicide conviction and sentence from the Valley County District Court, imposed in 2017. We granted his petition for out-of-time appeal and appointed counsel. State v. Witkowski, No. DA 18-0621, Order (Mont. Nov. 14, 2018). This Court affirmed and remanded to strike or omit certain sentence conditions. State v. Witkowski, No. DA 18-0621,2021 MT297N, ¶¶2, 16, 2021 Mont. LEXIS 937.
In October 2020, Witkowski attempted to appeal his February 2018 conviction and sentence for aggravated kidnapping with this Court. We denied his petition for an out-oftime appeal and stated: "Witkowski provides no reason for his delay now when, in 2018, he was aware of how the process for seeking untimely appeals works in this Court." State v. Witkowski, No. DA 20-0528, Order, at 2 (Mont. Nov. 10, 2020) (Witkowski I).
Subsequently, Witkowski appealed the court's dismissal of his petitions for postconviction relief for each of his convictions. We recently issued a decision affirming the court's dismissal of his petition for postconviction relief concerning the aggravated kidnapping conviction. Witkowski v. State, No. DA 21-0425, 2023 MT 40N, ¶¶ 2-3, 2023 Mont. LEXIS 278 (WitkowskiII). His other appeal is pending., Upon review of his Petition, Witkowski attempts to relitigate his aggravated kidnapping conviction and the resulting sentence. Witkowski entered a guilty plea to the aggravated kidnapping offenses in 2018. This Court has stated before that [a] defendant waives the right to appeal all nonjurisdictional defects upon voluntarily and knowingly entering a guilty plea, including claims 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). Witkowski waives any constitutional challenge, such as alleged due process violations.
This Court directly addressed his claims of ineffective assistance of counsel raised in his appeal of the court's denial of his petition for postconviction relief. We stated:
Even assuming Witkowski's allegations regarding counsel's actions in this case are true, they do not establish either deficient performance or prejudice. Witkowski has failed to delineate how his counsel's failure to advise the [c]ourt of his mental health problems and the failure of the detention center to provide prescribed medications to Witkowski was deficient performance. At the time of sentencing, the District Court had been provided the Presentence Investigative Report (PSI) of September 18, 2017, along with a January 24, 2018 letter from Probation and Parole Officer Dibblee updating information contained in the PSI. As such, the District Court was aware of Witkowski's mental health history, including his ADHD, and his assertion he was overwhelmed with his situation and not properly medicated. He does not delineate how his counsel would possess any more information about
Witkowski's state of mind or issues with medication than those available to the court through his PSI and the updating letter. He also fails to delineate how counsel's failure to address Witkowski's state of mind or issues with medication prejudiced him. From the Judgment, it is clear the District Court was aware of and considered Witkowski's mental state of hopelessness and his significant need for treatment in imposing a sentence. The District Court considered this information in conjunction with Witkowski's significant criminal history and demonstrated prior inability to conform his behaviors to legal behaviors. In his PCR petition, Witkowski failed to demonstrate either Strickland prong and the District Court correctly dismissed his IAC claim.Witkowski II, ¶ 13 (footnote added).
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). This Court uses the two-pronged test for ineffective assistance of counsel claims as put forth in Whitlow v. State, 2008 MT 140, ¶ 10, 343 Mont. 90,183 P.3d 861.
This writ is not the appropriate remedy. Witkowski is procedurally barred from raising these arguments by writ of habeas corpus. Section 46-22-101(2), MCA. Witkowski attempted to appeal the conviction for aggravated kidnapping, which this Court denied. He cannot circumvent the appeal process by raising the same or similar claims in a petition for writ because he has exhausted the remedy of appeal. Section 46-22-101(2), MCA. Witkowski raised similar claims in his petition for postconviction relief that the District Court dismissed and that we affirmed. Witkowski II.
Witkowski cannot demonstrate a facially invalid sentence. Each of his convictions carry a death sentence or life imprisonment. A district court has statutory authority to impose a life sentence for deliberate homicide, pursuant to § 45-5-102(2), MCA (2015), whereas he received a seventy-year sentence. A court may impose a sentence for an aggravated kidnapping conviction of two to 100 years. Section 45-5-303(2), MCA (2015). The District Court, in imposing the sentence for aggravated kidnapping, gave its reasons and chose to impose a forty-year sentence based on the parties' stipulation for an exception, pursuant to § 46-18-222(5), MCA. The court also dismissed two felony and two misdemeanor offenses. Witkowski is not entitled to a reduction of his sentence. Witkowski brings his claims through the wrong remedy. Accordingly, IT IS ORDERED that Witkowski's Petition for Writ of Habeas Corpus is DENIED and DISMISSED.
The Clerk of the Supreme Court is directed to provide a copy of this Order to counsel of record and to Jay Donald Witkowski personally.
The Clerk is also directed to CLOSE this matter as of this Order's date.