Petition for Writ of Certiorari — Douglas P. Pasquinzo, Petitioner v. Montana

Supreme Court briefSep 19, 2025

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APPENDIX

APPENDIX A

Douglas P. Pasquinzo, #3019422

700 Conley Lake Rd

Deer Lodge, Montana 59722

In the

SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA,

Plaintiff-Appellee,

-vsDOUGLAS P. PASQUINZO,

Defenderit-Appellant.

)

Cause No: 24-0676

APPELLANT'S

OPENING BRIEF

APPEAL

)

Comes now Douglas P. Pasquinzo, the Appellant, to hereby appeal the decision

by the Montana Fifth Judicial District Court, in cause no: DC-22-2015-42, dated

October.31, 2024, signed by the Hon. Luke Berger.

The Appellant presented a Motion to Dismiss Judgment and Information due to

Void Judgement. Ihat pleading and subsequent pleadings are incorporated here.

This Motion was based on the record and the documented violations to the Due

Process of Law, as demanded by the Fourteenth Amendment of the U.S. Constitution,

and Art. II; Sect. 17, of the Montana Constitution; inclusive in the Fifth Amendment

of the U.S. Constitution.

The Montana Rules of Civil Procedure, and Montana Statute MCA: §46-11-205, Amending

information as to substance or form; which states:

”£L) The court may allow an information to be amended in matters of substance at

any time, but not less than 5 days before trial, provided that a motion is

filed in a timely manner, states the nature of the proposed amendment, and

is accompanied by an affidavit stating facts that show the existence of

probable cause to support the charge as amended. A copy of the proposed

amended information must be included with the motion to amend the information.

(2) If the court grants leave to amend the information, the defendent must be

arraigned on the amended information without unreasonable delay and must be

given a reasonable period of time to prepare for trial on the amended ^information.

The State of Montana filed an Amended information Oh June 15< 2016; without having

moved for leave to file the Amended Information, nor did the district court grant

leave to file the amended information. See attached case registry, at Doc.Seq. 18.000.

The record is clear that the State violated the Rules of Criminal Procedure,

at MCA: §46-11-205, and the Due Process of Law. At that point the State district

court lost it's subject matter jurisdiction to continue, and based upon the long

standing ’Fruit of the Poisionous Tree’ doctrine, this"conviction and judgement can

not stand as legal. The district court defied U.S. Supreme Court caselaw principles.

-1-

The Fifth Judicial District Court has abused it’s discretion by ignoring the

legal procedure for a matter to be Amended, and as such also defied the U.S. Supreme

Court's holding that a party MUST file a Motion for leave, followed by an Order g.~

that grants the State leave to Amend, and ftffiN the State can file an Amended

Information. Not before as the County Prosecutor did here. See Montana v Wyoming,

U.S. Lexis 8446, at 361. This was cited to the district court and was ignored and

demonstrates the unfairness in the district court to allow the Jefferson County

Attorney representing the State to act "Above the Law", and that courts ?Bad Faith'

bias, in favor of the County Attorney. Both Actionable to the Commission on Practice,

and the Judicial Standards Commission, as well as issues to be placed before the

Montana Legislature.

Thus the underlying conviction and judgement are void for lack of subject-matter

jurisdiction.

The U.S. Supreme Court has held that,'.NO ONE is above the law. See Trump v Vance,

"In our system of government, as this Court has often stated, no one is above the

law." Trump v Vance,591 US 786, 812, 140 S.Ct 2412(2020).

"it is not enough to recite sayings like 'no man is above the law' and 'the public

has a right to every man's evidence.'.. .These sayings are true

and important—

but they beg the question, The law applies equally to all persons..." Id.at 836.

The Law is the Law, and the court can NOT legally disregard it and still claim

to maintain it's itegrity, where that court has lost all subject-matter jurisdiction

once the court itself has violated the Statutory Due Process of Law.

The Law is explicit as written and interpreted by the Montana Supreme Court, and

the Higher Courts, concerning the LACK of subject-matter jurisdiction:

CONTROLLING CASELAW STANDARDS

"Subject matter jurisdiction is subject to challenge or review at any time on

motion, or sua sponte by the court, and can not be established or maintained

by consent or waiver of the parties."

Gottlob v DeRosier, 2020 MI 210, P7; Stanley v Lemire, 2006 MT 304, 5131-32.

"Similarly the United States Supreme Court, recently observed that subject matter

jurisdiction, because it involves the court's power to hear the case, can never

be forfeited or waived. Moreever, the Courts^ including this Court, have an

independent obligation to determine whether subject matter exists, even in the

absence of challenge."

Stanley at P32; citing Arbaugh v Y & H Corp., 546 US 500,514, 126 S.Ct 1235,

1244, 163 L.Ed.2d 1097(2006).

"Once jurisdiction has been challenged the court cannot proceed when it clearly

appears the court lacks jurisdiction." Joyce v United States, 474 F.2d 215

(3rd Cir. 1973).

"There is no discretion to ignore lack of jurisdiction." Joyce at 215.

"The law provides that once State and Federal jurisdiction has been challenged,

it must be proven." Me v Thibutot, 448 US 1, 100 S.Ct 2502(1980).

-2-

Neither the Fifth Judicial District Court jurist, nor the Jefferson County Attorney

has proven that the District Court could maintain subject-matter jurisdiction, after

the County Attorney Amended the Information, without first being granted leave to

do so. Thus the criteria in Me v Ihibutot, is met, and the court clearly lacked

the required subject-matter jurisdiction to proceed, after violating the Defendant

Douglas Pasquinzo's Right to Due Process. Relief should now be granted for such.

'Ihe Judgment of conviction pronounced by a court without jurisdiction is void...”

Johnson v Zerbst, 304 US 458,468, 58 S.Ct. 1019(1938).

”A court's jurisdiction at the beginning of trial may be lost "in the course of

the proceedings" due to failure to complete the court— as the Sixth Amendment

requires— by providing [Competent] counsel..." Zerbst at 468.

The Appellant-Defendent Pasquinzo was denied competent counsel, who DID NOT, at

any time challenge the fact that the court lost subject-matter jurisdiction, by it

excusing the County Attorney's Amendended Information without leave from the Court.

Based on the record, and legal principle that the Appellant can challenge the

district courts subject-matter jurisdiction at any time, per Gottlob at P7, the

district court was bound by law to vacate this matter for lack of subject-matter

jurisdiction, at the instant point that the Appellant's Right to the Due Process

of Law was violated, and the matter could NOT proceed. The defense counsel's duty

is to know the law, and as such was required to file or orally demand that the

court no longer proceed for the lack of subject-matter jurisdiction, as the district

court could no longer hear the case, per Stanley and Arbaugh precedence, whichEstill

stands and is binding in this matter.

Granting Summary Judgment to the Defendent is the proper procedural avenue, here

where the County Attorney, representing the State, did not brief or dispute the

fact that subject-matter jurisdiction was lacking based on his procedural error,

which by law is defined as being waived.

The Montana Rules of Civil Procedure apply at this point under Rule 12(b) and (h),

12(b): Defenses and Objections: When and How Presented; Motion for Judgment on the

Pleadings; Consolidating Motions; Waiving Defenses; Pretrial hearing.

(b) How to Present Defenses. Every defense to a claim for relief in any pleading

fiuist; be-asserted;in the responsive pleading if one is required.

But a party may assert the following defenses by motion:

(1) lack of subject-matter jurisdiction.

12(h)..Waiving and preserving Certain Defenses. §(1)(B) failing to either:

§(ii) include it in a responsive

pleading...as a matter of

course.

The State thus waived the fact that the District Court lacked the required

subject-matter jurisdiction. Ihe 'Rule of Law' is very clear, that once an issue is

waived, that waiver can not be excused.

-3-

CONTROLLING WAIVER AUTHORITY:

Wood v Milyard, 566 US 463,466,132 S.Ct. 1826(2012)

"A court is not at liberty, we have caustioned, to bypass, override, or excuse

a state's deliberate waiver..."; See Day v McDonough, 547 US 198,202,210, n.ll

126 S.Ct 1675,(2006).

Based on controlling Supreme Court law, the district court has abused it discretion

for disregardingbthe fact that the State waived the issue of lack of subject-matter

jurisdiction, where the State was excused from disregarding state statute and procedure

concerning an amended information.

CONTROLLING INEFFECTIVE ASSISTANCE OF COUNSEL AUTHORITY!:

Strickland v Washington, 466 US 668, 104 S.Ct 2052(1984).

Wong v Belmontes, 558 US 15,16-17, 130 S.Ct 383(2009).

"To prevail on this claim, Belmontes [Like Pasquinzo here] must meet both the

deficient performance and prejudice prong of Strickland, 466 US at 687,

S-7-.

104 S.Ct 2052,80 L.Ed.2d 674. To show deficient performance...must establish

that "counsel's representation fell well below an objective standard of reasonableness

Id at 688.

"To establish prejudice, [Pasquinzo] must show a "reasonable probability that,

but for counsel's unprofessional errors, the result of the proceedings would

have been different." Strickland at 694, Wong at 19.

In relation to the lack of subject-matter jurisdiction, a competent attorney

as defense counsel for defendant Pasquinzo, would have known the laws concerning

amending information, and objected to the State's failure to obtain leave to amend

the information, per State Statute. Counsel did thus prejudice the defendant, to

not object to this violation of the 'Rule of Law.'.

Based upon this 5th and 6th Amendment violation of the U.S. Constitution, the

defendant should have never been convicted, without the required subject-matter

jurisdiction, after the district court and the County prosecutor violated the Appellants

Right to the Due Process of Law.

Pursuant to Article VI, Paragraph 2 of the United States Constitution, also known

as the Supremacy Clause, which states:

"This Constitution, and the laws of the.-UnitediStates which shall be made in

pursuance thereof; and all treaties made, or which shall be made, under the

authority of the United States, shall be the supreme law of the land; and the

judges in every state shall be bound thereby, anything in the Constitution or

laws of any State to the contrary notwithstanding."

When a judge or panel of judges violate the Supremacy Clause, it is an usurpation

of power and authority which that court and jurist do NOT have, for disregarding the

Constitution and the the’Supremacy Clause. Such Judicial Misconduct undermines the

rule of law, with Judicial consequences based on this overreach which undermines the

stability of the legal system, and destroys the integrity of the court, and the public

confidence in the Courts, which the public's taxes pay to be honest and fair.

-4-

CONTROLLING STRUCTURAL ERROR AND BIAS AUTHORITY;

Weaver v Massachusetts, 582 US 286,

,137 S.Ct. 1899(2017)

’’this Court ?’adopted the general rule that a constitutional error does not

automatically require reversal on a conviction." Arizona v Fulminate, 499 US 279,

306, 111 S.Ct 1246,113 L.Ed.2d 302(1991).

"The Court recognized, however that some errors should not be deemed harmless

beyond a reasonable doubt." Weaver at 294.

"These errors came to be known as structural errors." Fulminate at 309-310,

Weaver at 294.

"The purpose of the structural error doctrine is to ensure insistance on certain

basic, constitutional guarantees that should define the framework of a criminal

trial. Thus, the defining feature of a structural error is that it "affects the

framework within which the trial proceeds".Fulminate at 310, Weaver at 295.

The Montana District Court lost its:subject-matter jurisdiction when it violated

the Due Process of Law, for Amending Information without leave granted to the State.

Without subject-matter jurisdiction the structural error is self evident,

"affects the framework within the trial proceeds."

which

The case of State v Pasquinzo here then lost all controversy, which the United

States Constitution requires per Article III, Section 2:

"The judicial power shall extend to all cases, in law and equity, arising under

the Constitution, the laws of the United States,and treaties made,sot shall be

made, under that authority;...to controversies to which the United States shall

be party..."

With the district court’s abuse of discretion as shown, by continuing this matter

without the required subject-matter juridiction, in favor of the State, bias is

clearly shown, and is unconstitutional by.law:

'c:-'Due'lProcess guarantee an absence of actual bias on the part of the judge."

In re Murchison, 349 US 133,136, 75 S.Ct 633, 99 L.Ed.942(1955).

The District Court violated the Due Process Clause- of the Fourteenth Amendment

by allowing this matter to proceed without subject-matter jurisdiction,"Which clearly

demonstrates his bias in favor of the State, which is grounds for his self recusal;

RELIEF

Based, on the record, and the pleadings attached herein, which conclusively show

cause for relief due to the violations of Statutory and Constitutional Law, the

Appellant asks that the Court order that this matter be remanded back to the district

court to vacate the single charge, with prejudice, at the courts earliest convenience.

Dated this 5th day of February^2025.

Douglas P. Pasquinzo.

-5-

APPENDIX

APPENDIX B

Date: 1/28/2021

Time: 07:49 AM

Page 1 of 2

Filed:

Subtype:

Case Register Report

DC-22-2015-0000042-IN

State of Montana vs. DOUGLAS P. PASQUINZO

9/30/2015

Information

Status History

Open

Pending

Active

Closed

9/30/2015

10/7/2015

6/28/2016

Prosecutors

JOHNSON, MATHEW J„

HADDON, STEVEN C.,

(No longer on case)

(Primary attorney)

Do Not Send Notices

Send Notices

Defendants

Def. no. 1

PASQUINZO, DOUGLAS P.

Attorneys

Eastman, Mariah A.

(Primary attorney)

Send Notices

Charges

No.

Original:

Amended:

Original:

Amended:

Judge History

Date

9/30/2015

Revision

201405

Statute

45-5-503

45-5-502(1) [2]

45-5-503

45-5-502(1) [2]

Judge

Tucker, Loren

Description

Sexual Intercourse Without Consent

Sexual Assault

Sexual Intercourse Without Consent

Sexual Assault

Reason for Removal

Current

Def. Doc. Seq.

Entered

Filed

09/30/2015

10/05/2015

09/30/2015 Motion For Leave to File Information; Affidavit

09/30/2015 Order

Text

Judge

1.000

2.000

3.000

4.000

5.000

6.000

7.000

10/07/2015

8.000

10/07/2015

9.000

10.000

11/13/2015

11/30/2015

11.000

12/11/2015

12.000

02/01/2016

02/01/2016 Motion to Continue Trial Date; PROPOSED

ORDER

13.000

02/01/2016

14.000

05/26/2016

02/01/2016 Fax Copy of Order Continuing Pre-Trial & Trial

Date (2/3/2016 Replaced with Original)

Minute

Entry

05/26/2016

10/06/2015

10/07/2015

Tucker, Loren

09/30/2015 Information

Tucker, Loren

10/05/2015 Minute Entry

Tucker, Loren

10/06/2015 Fax Copy of Unopposed Motion to Modify Time of Tucker, Loren

Hearing (10/6/2015 Replaced with Original)

10/07/2015 Order Modifying Time of Hearing; Copy of Letter Tucker, Loren

10/07/2015 Minute Entry

Tucker, Loren

10/07/2015 Bail Order Setting Bond and Conditions and

Acknowledgment

11/13/2015 Omnibus Order

11/30/2015 Praecipe for Subpoena; One Subpoena Issued

12/11/2015 Witness List

Exhibit 1

Tucker, Loren

Date: 1/28/2021

case Register Report

DC-22-2015-0000042-IN

State of Montana vs. DOUGLAS P. PASQUINZO

Time: 07:49 AM

Page 2 of 2

Def. Doc. Seq.

Entered

Filed

06/07/2016 Fax Copy of Unopposed Motion to Continue

Tucker, Loren

Change of Plea One Week; (6/15/2016 Replaced

with Original)

06/08/2016 Order Resetting Change of Plea One Week

Tucker, Loren

06/15/2016 Minute Entry

Tucker, Loren

06/15/2016 Amended Information

Tucker, Loren

06/15/2016 Acknowledgement of Rights and Plea Agreement Tycker, Loren

15.000

06/07/2016

16.000

06/08/2016

17.000

06/15/2016

18.000

19.000

20.000

06/15/2016

06/28/2016

21.000

22.000

23.000

06/28/2016

05/30/2017

08/21/2017

24.000

08/24/2017

25.000

11/06/2017

Text

Judge

06/27/2016 Findings, Judgment and Sentence

06/28/2016 Notice of Right to Apply for Review of Sentence

05/30/2017 Request for Production of Transcripts

08/21/2017 Request for Extention (sic) of Time

Tucker, Loren

08/24/2017 Order Granting Extension (Faxed

Tucker, Loren

Copy-8/28/2017 Replaced with Original)

11/06/2017 Motion and Order Pursuant to Rule 1.16(d), Code Tucker, Loren

of Attorney Professional Conduct (No Order

Provided)

Exhibit 1

APPENDIX

APPENDIX C

FILED

04/28/2025

Bowen Greenwood

IN THE SUPREME COURT OF THE STATE OF MONTANA

No. DA 24-0676

STATE OF MONTANA,

Plaintiff and Appellee,

DOUGLAS P. PASQUINZO,

Defendant and Appellant.

BRIEF OF APPELLEE

On Appeal from the Montana Fifth Judicial District Court,

Jefferson County, The Honorable Luke Berger, Presiding

APPEARANCES:

AUSTIN KNUDSEN

Montana Attorney General

MARDELL PLOYHAR

Assistant Attorney General

215 North Sanders

P.O. Box 201401

Helena, MT 59620-1401

Phone: 406-444-2026

mployhar@mt.gov

STEVE HADDON

Jefferson County Attorney

Courthouse

P.O. Box H

Boulder, MT 59632

ATTORNEYS FOR PLAINTIFF

AND APPELLEE

DOUGLAS P. PASQUINZO

AO #3019422

Montana State Prison

700 Conley Lake Road

Deer Lodge, MT 59722

DEFENDANT AND APPELLANT

PROSE

CLERK OF THE SUPREME COURT

STATE OF MONTANA

Case Number: DA 24*0676

TABLE OF CONTENTS

TABLE OF AUTHORITIES............................................................................... ii

STATEMENT OF THE ISSUES.......................................................................... 1

STATEMENT OF THE CASE............................................................................. 1

STATEMENT OF THE FACTS.......................................................................... 1

Underlying criminal case............................................................................ 1

II.

Pasquinzo’s motions challenging his convictions........................................ 3

SUMMARY OF THE ARGUMENT................................................................... 4

ARGUMENT.......................................................................................................5

Standard of review......................................................................................5

II.

The issues on appeal are limited to the issues raised in Pasquinzo’s

appellate brief............................................................

III.

The Montana Rules of Civil Procedure cannot be used to challenge a

criminal conviction.................................................................................... 6

IV.

The district court had subject matter jurisdiction over Pasquinzo’s

case............................................................................................................ 7

Montana Code Annotated § 46-11-205 was not violated when

the State amended the information pursuant to the plea

agreement........................................................................................ 7

A violation of Mont. Code Ann. § 46-11-205 would not deprive

a court of subject matter jurisdiction................................................. 9

CONCLUSION.................................................................................................. 11

CERTIFICATE OF COMPLIANCE...................................................................12

TABLE OF AUTHORITIES

Cases

Green v. Gerber,

2013 MT 35, 369 Mont. 20, 303 P.3d 729 ..... .................................

In re E.G.,

2014 MT 148, 375 Mont. 252, 326 P.3d 1092 ................................................ 9, 10

Kontrick v. Ryan,

540 U.S. 443 (2004)............................................................................................. 9

Miller v. Eighteenth Judicial Dist. Court,

2007 MT 149, 337 Mont. 488, 162 P.3d 121 ..................................................... 9

Pasquinzo v. State,

2019MT246N................................................................................................. 1,2

State v. Crawford,

2016 MT 96, 383 Mont. 229, 371 P.3d 381........................................................ 8

State v. Ferguson,

2005 MT 343, 330 Mont. 103, 126 P.3d 463 .......

.....5

State v. LaFournaise,

2022 MT 36,407 MT 399, 504 P.3d 486 ............................................................8

State v. Montgomery,

2015 MT 151, 379 Mont. 353, 350 P.3d 77 .......................................................5, 9

State v. Pierce,

No. DA 24-0390, 2025 Mont. LEXIS 11 (Mont. Sup. Ct. Jan. 7, 2025) ....... 6, 7

State v. Spreadbury,

2011 MT 176, 361 Mont. 253,257 P.3d 392 .......................................... 9-10, 11

Stock v. State,

2014 MT 46, 374 Mont. 80, 318 P.3d 1053 .........................................................5

United States v. Cotton,

535 U.S. 625 (2002)............................................................................................ 10

Other Authorities

Montana Code Annotated

§ 3-5-302(1)........................................................................................................ 9

§ 3-5-302(l)(a)................................................................................................... 9

§ 45-5-503(4)(a)(i) (2013) ....................

..2

Tit 46, ch. 21...................................................................................................... 6

§ 46-1-103(1) .................................................................................................... .6

§46-11-201 ........................................................................................................ 7

§ 46-11-205

passim

§46-11-205(1) ................................................................................................... 8

§ 46-20-101 ........................................................................................................ 6

Montana Constitution

Art. VII, § 4(1) ................................................................................................ 9

Montana Rules of Civil Procedure

Rule 36 ........................................................................................................... 3

Rule 56(c)(2)(A)............................................................................................... 3

Rule 60(b)....................................................................................................... 6

Rule 60(b)(4).................................................................................................... 3

Federal Rules of Criminal Procedure

Rule 36............................................................................................................ 3

iii

STATEMENT OF THE ISSUES

Whether the district court erred when it denied Pasquinzo’s motions in

which he used the Montana Rules of Civil Procedure to challenge his criminal

convictions for sexual assault.

STATEMENT OF THE CASE

Pasquinzo pleaded no contest to two counts of sexual assault pursuant to a

plea agreement in which two counts of sexual intercourse without consent were

dismissed. (Docs. 19, 20.)

Pasquinzo did not appeal. He filed a petition for postconviction relief,

which the district court denied on August 22, 2018. Pasquinzo v. State, 2019 MT

246N, 7. Pasquinzo appealed that denial, and this Court affirmed in 2019. Id.

In 2024, Pasquinzo filed multiple motions in the district court seeking relief

from his conviction. (Docs. 29, 32-34.) The court denied all of the motions in a

single order. (Doc. 40, available at Appellant’s App.) He appeals the order

denying his motions.

STATEMENT OF THE FACTS

Underlying criminal case

Pasquinzo was charged with two counts of sexual intercourse without consent.

(Doc. 3.) The victim was his seven-year-old granddaughter. (Doc. 1.) Because the

victim was under the age of 12, both charges carried mandatory minimum sentences

of 100 years, 25 years of which could not be suspended, and a minimum 25-year

parole eligibility restriction. Mont. Code Ann. § 45-5-503(4)(a)(i) (2013); (Docs. 3,

19 at 2).

Pasquinzo and the State entered into a plea agreement in which the State

agreed to dismiss both counts of sexual intercourse without consent, in exchange

for Pasquinzo pleading no contest to two counts of sexual assault. (Doc. 19 at 2,

4.) The parties agreed to recommend that Pasquinzo be sentenced to the

Department of Corrections for a term of 20 years, with 15 of those years

suspended, on both counts, with the sentences running concurrently. (Id. at 4.)

At the change of plea hearing, the court advised Pasquinzo of his rights and

confirmed that he was knowingly and voluntarily waiving these rights, including

his right to appeal. Pasquinzo, 5. Pasquinzo pled no contest to two counts of

sexual assault and confirmed that the State would be able to prove the allegations

beyond a reasonable doubt. Id.-, (Doc. 20).

The Court declined to adopt the recommendation in the plea agreement and

instead sentenced Pasquinzo on each count to 15 years in prison with 5 years

suspended, with both sentences running concurrently. (Doc. 20 at 2.)

II.

Pasquinzo’s motions challenging his convictions

In August and September 2024, Pasquinzo filed motions labeled: Motion

for Summary judgement, Based on Lack of Subject Matter Jurisdiction (Doc. 29);

Defendent’s Motion to Dismiss Judgement and Information Due to Void

Judgement (Doc. 32); Defendent’s Motion for a Hearing on Summary Judgement,

MT. R. Civ. P. 56(c)(2)(A) (Doc. 33); Defendant’s Motion for “Request for

Information” Under Rule 36, F.R.Civ.P. and MT.R.Civ.P. Discovery (Doc. 34);

and Defendant’s Motion for ‘Relief From Judgment’ Per Mt.R.Civ.P. 60(b)(4)

Void Judgment, Lack of Subject-Matter Jurisdiction (Doc. 37). The State

responded to most of Pasquinzo’s motions. (Docs. 30, 35, 36.)

The court denied all four of the motions, noting that Pasquinzo was relying

on rules of civil procedure, which have no application to his criminal proceedings.

(Appellant’s App. at 2-3.) The court concluded that “Pasquinzo’s arguments in all

four of his Motions are baseless applications of the Rules of Civil Procedure to his

criminal proceedings. These arguments are also attempts to have additional bites

at the apple for post-conviction relief.” (Id. at 2.) The court stated that “Pasquinzo

shall not be afforded the opportunity to continually attempt to relitigate these

matters through inappropriate avenues or title arguments differently to gain relief.”

(Id.) The court also warned Pasquinzo that “future filings, if deemed vexatious,

may subject him to classification as a vexatious litigant requiring pre-filing review

by the Court.” (Zc7.)

SUMMARY OF THE ARGUMENT

Pasquinzo’s motions improperly used the Montana Rules of Civil Procedure

to attempt to bring new challenges to his convictions. The district court correctly

denied his motions because the Rules of Civil Procedure cannot be used to

challenge a criminal conviction.

Further, Pasquinzo’s claim fails on the merits. The amendment of the

information to lesser charges did not violate Mont. Code Ann. § 46-11-205. The

amendment to lesser-included offenses was an amendment as to form, so the

requirements for an amendment as to substance do not apply. The information was

amended pursuant to a plea agreement to allow Pasquinzo to plead guilty to lesser

charges, thereby eliminating the mandatory minimum 100-year penalty.

Even if Mont. Code Ann. § 46-11-205 was violated, that violation would not

deprive the court of subject matter jurisdiction because district courts have

jurisdiction over felony cases. Therefore, any violation of Mont. Code Ann.

§ 46-11 -205 would be waived by Pasquinzo’s guilty plea.

ARGUMENT

Standard of review

Whether a court erred in denying a motion to dismiss in a criminal case is a

question of law that this Court reviews for correctness. State v. Montgomery,

2015 MT 1514 6, 379 Mont. 353, 350 P.3d 77.

II.

The issues on appeal are limited to the issues raised in

Pasquinzo’s appellate brief.

In Pasquinzo’s appellate brief, he references his Motion to Dismiss

Judgment and Information Due to Void Judgement, (Doc. 32), and then asserts,

“That pleading and subsequent pleadings are incorporated here.” (Appellant’s Br.

at 1.) Pasquinzo cannot incorporate arguments that are not contained in his brief or

rely on incorporating by reference to develop his legal arguments.

This Court has explained that the Montana Rules of Appellate Procedure

“preclude[ ] parties from incorporating trial briefs or any other kind of argument

into appellate briefs by mere reference. Simply put, appellate arguments must be

contained within the appellate brief, not within some other document.” State v.

Ferguson, 2005 MT 343,141, 330 Mont. 103, 126 P.3d 463; see also Stock v.

State, 2014 MT 46,

17 n.3, 374 Mont. 80, 318 P.3d 1053. The only arguments at

issue on appeal are the arguments made in Pasquinzo’s appellate brief.

III.

The Montana Rules of Civil Procedure cannot be used to

challenge a criminal conviction.

The district court correctly concluded that “Pasquinzo’s arguments in all

four of his Motions are baseless applications of the Rules of Civil Procedure to his

criminal proceedings.” (Appellant’s App. at 2.) Montana Code Annotated

§ 46-1-103(1) provides that Title 46 “governs the practice and procedure in all

criminal proceedings in the courts of Montana except where provision for a

different procedure is specifically provided by law.” This statute demonstrates that

the rules of criminal procedure, rather than the rules of civil procedure, govern

challenges to a criminal conviction. The rules of criminal procedure provide that a

criminal conviction can be challenged by a direct appeal or through postconviction

proceedings. Mont. Code Ann. § 46-20-101; Mont. Code Ann. Title 46, ch. 21.

Pasquinzo pursued postconviction relief, and this Court affirmed the denial of his

petition. He cannot attempt to use rules of civil procedure to bring new challenges

to his conviction.

This Court recently dismissed a similar appeal sua sponte from a defendant

who attempted to use the rules of civil procedure to challenge his conviction.

State v. Pierce, No. DA 24-0390, 2025 Mont. LEXIS 11 (Mont. Sup. Ct. Jan. 7,

2025). Pierce filed a motion under Rule 60(b) of the Montana Rules of Civil

Procedure after this Court had denied his direct appeal and postconviction appeal.

This Court concluded that his appeal was not properly before this Court,

concluding that “[h]e cannot utilize the Montana Rules of Civil Procedure to

reopen his criminal case.” Pierce, *3.

Similar to Pierce, Pasquinzo cannot use the Montana Rules of Civil

Procedure to reopen his criminal case. Accordingly, the district court correctly

denied all of his motions.

IV.

The district court had subject matter jurisdiction over

Pasquinzo’s case.

In addition to being raised in an improper forum, Pasquinzo’s claim fails on

the merits. Pasquinzo argues the court lost its subject matter jurisdiction because

the State violated Mont. Code Ann. § 46-11-205 by filing its amended information

without seeking leave to file. This argument fails for two reasons: (1) Montana

Code Annotated § 46-11-205 was not violated and (2) a violation of Montana Code

Annotated § 46-11-205 would not deprive a court of subject matter jurisdiction.

Montana Code Annotated § 46-11-205 was not violated

when the State amended the information pursuant to the

plea agreement.

The State may initiate criminal charges by filing a motion for leave to file an

information. Mont. Code Ann. § 46-11-201. An information that has been filed

may be amended pursuant to Mont. Code Ann. § 46-11-205, which provides that:

(1) The court may allow an information to be amended in matters of

substance at any time, but not less than 5 days before trial, provided

that a motion is filed in a timely manner, states the nature of the

proposed amendment, and is accompanied by an affidavit stating facts

that show the existence of probable cause to support the charge as

amended. A copy of the proposed amended information must be

included with the motion to amend the information.

(2) If the court grants leave to amend the information, the defendant

must be arraigned on the amended information without unreasonable

delay and must be given a reasonable period of time to prepare for

trial on the amended information.

(3) The court may permit an information to be amended as to form at

any time before a verdict or finding is issued if no additional or

different offense is charged and if the substantial rights of the

defendant are not prejudiced.

■, The amendment reducing Pasquinzo’s charges from sexual intercourse

without consent to sexual assault was not an amendment as to substance, so the

procedure in Mont. Code Ann. § 46-11-205(1) does not apply. This Court has held

that an amendment to a lesser-included offense is an amendment as to form, rather

than substance State v. Crawford, 2016 MT 96,

39, 383 Mont. 229, 371 P.3d

381; see also State v. LaFournaise, 2022 MT 36,

27-29, 407 Mont. 399,

504 P.3d486.

Further, a motion for leave to file an amended information was unnecessary

because Pasquinzo entered into a plea agreement in which he agreed that the State

would amend the information, and he would plead guilty to the reduced charges.

(Doc. 19.) He then changed his plea pursuant to this agreement and received a

significant benefit. (Doc. 20 at 1.) Nothing in Mont. Code Ann. § 46-11-205

prohibits the court from allowing the State to reduce charges pursuant to a plea

agreement so that the defendant can obtain the benefit of the plea agreement.

Pasquinzo has not demonstrated that Mont. Code Ann. § 46-11-205 was violated.

A violation of Mont. Code Ann. § 46-11-205 would not

deprive a court of subject matter jurisdiction.

Pasquinzo’s argument also fails because even if Mont. Code Ann.

§ 46-11-205 was violated, the court still had subject matter jurisdiction over the

case. “Jurisdiction is ‘the court’s fundamental authority to hear and adjudicate cases

or proceedings.’” In re E.G., 2014 MT 148, H 11, 375 Mont. 252, 326 P.3d 1092. A

provision is “‘jurisdictional’ if it ‘delineatfes] the classes of cases (subject-matter

jurisdiction)... falling within a court’s adjudicatory authority.’” Miller v.

Eighteenth Judicial Dist. Court, 2007 MT 149,

43, 337 Mont. 488, 162 P.3d 121

(quoting Kontrick v. Ryan, 540 U.S. 443, 455 (2004)); see also In re E.G.,

11.

The jurisdiction of a district court over criminal cases is governed by the

Montana Constitution and Mont. Code Ann. § 3-5-302(1) and (l)(a), which

provide that district courts in Montana have original jurisdiction in “all criminal

cases amounting to felony[.]” Mont. Const, art. VII, § 4(1); Mont. Code Ann.

§ 3-5-302(1), (l)(a); accord Montgomery,

A court’s failure to comply with Mont. Code Ann. § 46-11-205 would not

remove a court’s subject matter jurisdiction over a felony case. This Court has

held that whether an information included allegations establishing probable cause

to support a charge is not a jurisdictional issue. State v. Spreadbury, 2011 MT 176,

110, 361 Mont. 253, 257 P.3d 392. In reaching that conclusion, this Court relied

on cases from the United States Supreme Court and other state courts concluding

that defects in a charging document do not deprive a court of the power to

adjudicate the case. Spreadbury,

8-9 (citing United States v. Cotton, 535 U.S.

625 (2002), and other cases).

Similarly, this Court has explained that statutory time and notice

prescriptions are not jurisdictional provisions. In reE.G.,^ 12. “Filing deadlines

or notice requirements enacted by the Legislature do not affect a court’s

fundamental subject matter jurisdiction, and the Legislature does not deprive courts

of subject matter jurisdiction when it enacts filing or notice deadlines.” Id. A

claim that statutory notice and hearing opportunities were violated raises a due

process claim, but due process claims are not jurisdictional and can be waived. Id.

When determining whether a provision is jurisdictional, the Legislature’s failure to

designate a notice requirement jurisdictional is significant. In re E.G.,

13.

“[U]nless a statute, rule, or constitutional provision expressly imposes

jurisdictional limitations, the expiration of a time bar does not deprive a district

court of the jurisdiction to further act in the matter before it.” Green v. Gerber,

2013 MT 35, 24, 369 Mont. 20, 303 P.3d 729.

Montana Code Annotated § 46-11-205 sets out a process for filing an

amended information and a time limit for doing so (five days before trial). This

does not limit the court’s authority to preside over the criminal case and is,

therefore, not jurisdictional.

Because Pasquinzo’s statutory violation claim is not jurisdictional, it was

waived by his entry of his no contest pleas. See Spreadbury,

11-14. His claim

thus fails both because there was not a statutory violation and because any alleged

statutory violation is waived.

CONCLUSION

The district court correctly denied Pasquinzo’s motions challenging his

convictions for sexual assault, and the convictions should be affirmed.

Respectfully submitted this 28th day of April, 2025.

AUSTIN KNUDSEN

Montana Attorney General

215 North Sanders

P.O. Box 201401

Helena, MT 59620-1401

By:

/s/ Mardell Ployhar

MARDELL PLOYHAR

Assistant Attorney General

CERTIFICATE OF COMPLIANCE

Pursuant to Rule 11 of the Montana Rules of Appellate Procedure, I certify

that this principal brief is printed with a proportionately spaced Times New Roman

text typeface of 14 points; is double-spaced except for footnotes and for quoted and

indented material; and the word count calculated by Microsoft Word for Windows

is 2,335 words, excluding cover page, table of contents, table of authorities,

certificate of service, certificate of compliance, signatures, and any appendices.

/s/ Mardell Ployhar____________

MARDELL PLOYHAR

CERTIFICATE OF SERVICE

I, Mardell Lynn Ployhar, hereby certify that I have served true and accurate copies of the

foregoing Brief - Appellee's Response to the following on 04-28-2025:

Steven C. Haddon (Govt Attorney)

P.O. Box H

Boulder MT 59632

Representing: State of Montana

Service Method: eService

Douglas P. Pasquinzo (Appellant)

Montana State Prison

AO# 3019422

700 Conley Lake Rd

Deer Lodge MT 59620

Service Method: Conventional

Electronically signed by LaRay Jenks on behalf of Mardell Lynn Ployhar

Dated: 04-28-2025

APPENDIX

APPENDIX D

Douglas P. Pasquinzo, #3019422

700 Comley Lake Rd.

Deer Lodge, Montana 59722

In the

SUPREME COURT FOR THE STATE OF MONTANA

STATE OF MONTANA,

Appellee-Plaintiff ,

-vsDOUGLAS P. PASQUINZO,

Appellant-Defendant.

)

No: DA 24-0676

REPLY BRIEF

APPELLANT

)

Comes now Douglas P. Pasquinzo, the Appellant to reply to the Appellee's response

in this action. The State of Montana's whole response brief is summarized that in

criminal actions that the Montana Rules of Civil Procedure are not applicable.

The Appellant firmly states that the State's response is without merit where

the lack of subject-matter jurisdiction is concerned.

This very Supreme Court of Montana has cited the Montana Rules of Civil Procedure

in criminal matters, where a matters subject-matter jurisdiction is at bar.

The Court in State v Abe, 2001 MT 260, P16, as HN6 holdsj

"Lack of subject matter jurisdiction can be raised at any time. Rule 12(h)(3).

M.R.Civ.P.

The State did not respond to the lack of subject-matter jurisdiction in the

State's response in District Court, and has thus lawfully waived that issue that

the State lost subject-matter jurisdiction, where the State amended its charge,

without permission or leave from the district court.

"In order for a court to act within its jurisdiction, it must have:(l) cognizance

of the subject matter;(2) presence of the proper parties; and (3) the court's

action must be invoked by proper pleadings and the judgment within the issues

raised." Lee vLLee, 200 MT 67, P20, HNg.

"A court lacks or exceeds such jurisdiction by "any acts which exceed the defined

power of the court in any instance, whether the power be defined by constitutional

provision, express statutory declaration, or rules developed by the courts and

followed under the doctrine of stare decisis...." Lee at P20.

Under the Doctrine of Stare Decisis, the Supreme Court has cited the Rules of

Civil Procedure in its rulings, which clearly allows the Defendant to cite the same

Rules of Civil Procedure.

"The Appellant court may make accommodations for pro se parties by relaxing

technical requirements which do not impact on fundamental bases for appeal."

Crawford v State, 2004 MT 309N,

-1-

The Defendant, as the Appellant here, is not an attorney, but an 84 year old

man who just wishes for the court to correct the district court error, and mandate

this as proper based on the ’Rule of Law’ cited herein. That a:

’’Court of Appeals will not hold the appellant to the same standards it requires

of attorneyscin stating his case." Becker v Montgomery, 532 US 757, 121 S.Ct 1801

(2001), at 761.

"...the discovery rules are liberally construed to make all relevant facts

available to parties in advance of trial and to reduce the possibilities of

suprise and unfair advantage."

Cox v Magers, 2018 MT 21, P15; Richardson v State, 2006 MT 43, 1124.

The ’’fundamentaltbases" of this appeal, are that the district court lost the

required subject-matter jurisdiction, where it violated the defendant Pasquinzo's

Due Process Rights, and unlawfully allowed the State to Amend the charging information

and discovery documents, without proper leave from the Court, nor allow the defendant

a chance to oppose the Motion for Leave, if one had been properly filed.

This undeniably violates State law at MCA: §46-11-205. Amending information or

form. §(2) "If the court grants leave to amend the information...’*.

The district court did NOT grant leave to Amend the Complaint.

The County Attorney, representing the State of Montana, took it upon himself

to usurp power, which he did not possess, to Amend this matter without the court's

permission.

See also MCA: §293-201. Legislative intent—Liberal construction.

"The legislature finds and declares that public boards^ commissions, councils,

and other public agencies in this state exist to aid in the conduct of the

peoples business...The people of the state do not wish to abdicate their o.

sovereignty to the agencies which serve them. Toward these ends, the provisions

of the part shall be liberally construed."

The Montana Supreme Court is a "public or government body", as generally defined

as a gfoupLofipindividualsiiotgariized for a government or pubic purpose" . See Choteau

Acantha Publ'g, Inc. v Gianforte, 2025 MT 76, P12.

The Supreme Court's purpose to the public, is to see that the 'Rule of Law' is

obeyed by the lower courts, at every level. The public has placed its trust in the

election of the Supreme Court Justices that they will be consistent. Ihe Court and

the Federal laws are consistant in that where subject-matter jurisdiction is concerned

the Rules of Civil Procedure have been cited in Criminal matters, and can be brought

up at any time. The issue is not the Appellant has incorrectly cited the MT.R.Civ.P.,

but that the District Court for the Fifth Circuit, Jefferson County, under Judge

Luke Berger violated the Appellants Due Process Rights, which issthea"fundamental

bases"ffor this appeal, Crawford supra.

-2-

The Jefferson County Attorney violated Pasquinzo's Constitutional Rights, by

Amending the Complaint without leaVe from the court first being given.

Any statute which allows for amendments without leave of the court conflicts

with this constitutional provision." StateovlCardwell, 187 Mont. 370. 375.

609 P.2d 1230(1980 MT.S.Ct.).

’

7the^Jea^ and unambiguous meaning of Article II, Section 20, 1972 Montana

constitution. All criminal actions prosecuted— initiated and carried forward—

by information must be examined and committed by a magistrate or must be carried

forward after leave granted by the court.: Thus, all stages of proceedings by

information including amendments to the information must be reviewed bv the

court." Cardwell at 375.

"On amendment of an information, however, certain procedural safeguards must be

imposed. The above discussion indicates amendments of substance can only be filed

with leave of court." Caldwell at 375?376.

Pasquinzo's Contitutional Rights were violated at the time the Jefferson County

Attorney Amended.the Information, without legal leave from the court.

At that point the Jefferson County, Fifth Judicial District Court, lost it's

subject^-matter jurisdiction. Without such jurisdiction either subject matter or personal,

the proceedings became illegal without "case" or "controversy", per Art.Ill of the

U.S. Constitution.

The Defendent is NOT an attorney, but has presented undeniable court record of.

error in the Judicial system in Jefferson County, in this matter and possibly many

others. Such defiance to the laws of the State of Montana can NOT be excused.

Per Cox v Magers, "discovery rules are liberally construed to make all relevant

facts available to the parties in advance of trial, to reduce the possibilities of

surprise and unfair advantage." The County Attorney for Jefferson County took "unfair

advantage" of an elderly citizen who had been harrasded and tormented in .theC.County

Jail, and helped'by undeniable Ineffectiveness of Counsel to recognizeuand object to

the County Attorney's illegal amending of the Information/ complaint, and forced to

The Montana Supreme Court should recognize UnitedcStates Supreme Court holdings

in Wood v Milyard, 566 US 463,466,132 S.Ct 1826(2012):

A court^is not at liberty, we have cautioned, to bypass, overide, or excuse

a state s deliberate waiver...";ssee Day v McDonough, 547 058198,202,210, n.ll

126 S.Ct 1675(2006).

Based on the above controlling authority, the district court has abused itis

discretion for disregarding the fact that the State legally^waived the issue that

the court lacked subject-matter jurisdiction, where the district court illegally

excused the State for disregarding State Statute and procedure, concerning an amended

information. Surely the Supreme Court for Montana will not also excuse the State's

waiver, in violation of 'Clearly Established' U.S. Supreme Court authority.

-3-

The Montana District Court for the Fifth Judicial District Court, in this matter

could not maintain subject-matter jurisdiction, once it violated the Defendent-and

Appellant's Due Process Rights.

A court s jurisdiction at the beginning of trial may be lost "in the course of

the proceedings due to failure to complete the court—as the Sixth Amendment

gQUires—by providing competent counsel...Johnson v Zerbst, 304 US 458,468

The court itself and the county prosecutor both denied the Appellant his Due

Process rights by circumventing and ignoring clearly established procedural law.

At the point that the Couhty Attorney filed the Amended Complaint, without leave

from the Court, subject-matter jurisdiction was lost, "in the course of the proceedings"

From that point any judgement was void.

The State did not respond to the Appellant-Defendent's "Motion to Dismiss

Judgment and Information Due to Void Judgment", but which the Appellant incorporates

here in its entirety, and the issues, claims and governing jurisprudence caselaw

therein. The State claims that Pasquinzo can not apply the Rules of Civil Procedure

as the 'Statement of theefssues". OK fine, but irregardless of that Federal Law

and State Law prohibit the County Attorney from Amending a complaint or information

without permission from the Court, or "Leave" to do so as used in legal verbage.

In the Defendant-Appellants Brief in Reply to the State's Response, at the

district court level here, the Defendant Pasquinzo cited state controlling statute.

MCA; §46-11-111. Amending Complaint. "A court may allow a complaint to be amended

under the same circumstances and in the same

manner as an information as provided in 46-11-205.

MCA: §46-11-201. "(1) The prosecutor may apply directly to the district court for

permission to file an information against a named defendent."

MCA': §46-11-205. ''Amending information as to the substance or form. (2) If the court

grants leave to amend the information, the defendent must be arraigned;

on the amended information without reasonable delay and must be

given a reasonable period of time for trial on the amended information.

None of these laws as ratified by the Montana Legislature were abided by here,

and the County Attorney usurped power he did NOT legally possess to Amend.this

matter without permissionzor leave to do so first granted by the court.

Again, subject-matter jurisdiction was lost, which can be brought up at any time,

per State and federal law.

Once jurisdiction has been challenged the court cannot proceed when it cl early

appears the court lacked jurisdiction." Joyce v U.S, 474 F.2d 215(3rd Cir. 1973).

The law provides that once State and Federal jurisdiction has been challenged

it must be proven." Me v Thibutot, 448 US 1, 100 S.Ct.2502(1980).

Subject-matter jurisdiction was challenged in the district court, and the County

Attorney for Jeffereson County refused to prove jurisdiction was proven. Thus waived it.

CONCLUSION

The Supreme Court for the State of Montana has consistantly held that the law

is the law, has written by the legislature; and interpreted by this Court, in

obeyance to the laws of Montana and the United States.

Montana Laws as cited demand that the State obey procedural law concerning

amending a complaint, as cited herein, §46911-111, §46-11-201, and §46-11-205.

Public confidence in the court system is at bar, as is the laws governing an

attorney to represent the public and State, per the Montana Rules of Professional

Conduct. Most especially Rule 3.4, Fairness and Rule 3.8 Special Responsibilities

of a Prosecutor. How can the public maintain confidence that their tax dollars are

being well spent?

The Appellant asks that the Court remand this matter to the District Court,

for dismissal, as demanded by the United States Supreme Court.

"when a federal court concludes that it lacks subject-matter jurisdiction, the

complaint must be dismissed in its entirety." Arbaugh v Y & H Corp., 546 US 500,

126 S.Ct 1235(2006) at 514.

"Whenever it appears by suggestion of the parties or otherwise that the court

lacks jurisdiction of the subject-matter, the court shall dismiss the action."

fentrick v Ryan, 540 US 443,455, 124 S.Ct 906, 157 L.Ed.2d 867(2004). See also

Smith v Butte Pre-Release, 2021 U.S. Dist. Lexis 209572 (U.S. Dist.MT. 2021),

at 3.

"See Rule 12(h)(3), M.R.Civ.P. ("whenever it appears by suggestion of the parties

or otherwise that the court lacks; jurisdiction on the subject matter, the court

shall dismiss the action'.’). See State v Abe, 2001 MT 260,P16 [A criminal Case].

The State's prior refusal to brief the lack of subject matter jurisdiction, thus

constitutes a waiver,?and the court is NOT at liberty to continue, and thus the district

court should have dismissed the action in its entirety. But because it did not, then

prejudiced established, and is also a Due Process violation, as cited.

RELIEF

The Appellant asks that this court remand this case back to the district court

for the above violations of law, and prejudice; with the order to dismiss the underlying

criminal charges for lack of subject-matter jurisdiction, as shown and waived by

the State.of Montana, and governed by Law.

Dated this

day of May, 2025.

Douglas P. Pasquinzo.

CERTIFICATE OF SERVICE

I, Douglas P. Pasquinzo, do hereby certify that a true and accurate

copy of this Reply is sent to the Montana, Attorney General.

Douglas P Pasquinzo.

-5-

APPENDIX

APPENDIX E

FILED

07/08/2025

Bowen Greenwood

CLERK OF THE SUPREME COURT

STATE OF MONTANA

DA 24-0676

Case Number: DA 24-0676

IN THE SUPREME COURT OF THE STATE OF MONTANA

2025 MT 153N

STATE OF MONTANA,

Plaintiff and Appellee,

DOUGLAS P. PASQUINZO,

Defendant and Appellant.

APPEAL FROM:

District Court of the Fifth Judicial District,

In and For the County of Jefferson, Cause No. DC 2015-0042

Honorable Luke Berger, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Douglas P. Pasquinzo, Self-Represented, Deer Lodge, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Mardell Ployhar,

Assistant Attorney General, Helena, Montana

Steve Haddon, Jefferson County Attorney, Boulder, Montana

Submitted on Briefs: June 25, 2025

Decided: July 8, 2025

Filed:

Clerk

Justice Laurie McKinnon delivered the Opinion of the Court.

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.

Douglas P. Pasquinzo appeals from an order entered in the Fifth Judicial District

Court, Jefferson County, denying several motions he filed seeking relief from his

conviction. We affirm.

5[3

Pasquinzo pleaded no contest to two counts of sexual assault in 2016. He was

sentenced to two consecutive terms of 15 years with 5 years suspended to the Montana

State Prison. Pasquinzo did not appeal. He filed a petition for post-conviction relief which

the court denied on August 22, 2018. This Court affirmed the denial of post-conviction

relief on October 15, 2019. Pasquinzo v. State, No. DA 18-0687, 2019 MT 246N,

2019 Mont. LEXIS 602.

T|4

In August and September 2024, Pasquinzo filed in District Court a summary

judgment motion alleging lack of subject matter jurisdiction, a motion to dismiss his

Judgment and Information, a request for information pursuant to F. R. Civ. P. 36 and

M. R. Civ. P. 36, as well as a M. R. Civ. P. 60(b)(4) motion for relief from judgment.

Following a response from the State, the District Court denied Pasquinzo’s motion because

civil motions have no application in a criminal proceeding. The court also cautioned

Pasquinzo about filing frivolous motions and placed him on notice that any future filings

may cause the court to classify Pasquinzo as a vexatious litigant.

Section 46-1-103(1), MCA, provides that Title 46 “governs the practice and

procedure in all criminal proceedings in the courts of Montana except where provision for

a different procedure is specifically provided by law.” The rules of criminal procedure,

not the rules of civil procedure, apply in criminal proceedings. Additionally, the Federal

Rules of Civil Procedure are not applicable in state courts.

^J6

Pasquinzo’s motions were not properly before the District Court and his appeal is

not properly before this Court. Accordingly, the District Court correctly denied his

motions.

1J7

Affirmed.

T[8

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.

/s/ laurie mckinnon

We Concur:

/S/ JAMES JEREMIAH SHEA

/S/ KATHERINE M BIDEGARAY

/S/ BETH BAKER

/S/ INGRID GUSTAFSON

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.