No. 96-051
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
STATE OF MONTANA,
Plaintiff and Respondent,
v.
MARTIN C. MOORMAN,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable C. B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jeffrey T. Renz, Montana Defender Project,
Missoula, Montana
For Respondent:
Honorable Joseph P. Mazurek, Attorney General;
Patricia Jordan, Assistant Attorney General,
Helena, Montana
Deborah Kim Christopher, County Attorney,
Poison, Montana
;'i
Submitted on Briefs: September 26, 1996
Decided: November 21, 1996
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Martin Moorman was convicted and sentenced by the Twentieth
Judicial District Court, Lake County, for robbery and was designat-
ed a dangerous offender. Moorman contested his dangerous offender
designation in a petition for post-conviction relief, which the
District Court denied. Moorman appeals the denial of his petition
for post-conviction relief. We affirm.
The following dispositive issues are raised on appeal:
1. Did the District Court properly apply the procedural bar
rule of § 46-21-105(2), MCA, to dismiss Moorman's petition for
post-conviction relief?
2. Did the District Court possess jurisdiction pursuant to
§ 46-18-404(3), MCA (1981) (repealed 1995), upon revocation of
Moorman's suspended sentence, to continue his dangerous offender
designation which it had imposed in the original sentence?
BACKGROUND
Moorman was convicted of robbery in Lake County on November
10, 1982. He had a previous record of thefts and burglaries as
well as drug- and alcohol-related offenses, and a 1977 conviction
for assault on a police officer. On November 17, 1982, the
District Court sentenced Moorman to a term of twenty years in the
Montana State Prison, with fifteen years suspended. The court also
designated Moorman a dangerous offender for purposes of parole
eligibility.
Moorman was released on parole on September 17, 1985, and was
subject to the terms and conditions established by the Montana
Department of Institutions. After he failed to make his initial
and monthly reports to his parole officer, the State petitioned to
revoke his suspended sentence on June 28, 1990. Moorman fled to
California and had to be extradited. At a revocation hearing held
on December 19, 1990, Moorman admitted to violating the conditions
of his suspended sentence. On December 27, 1990, the District
Court revoked Moorman's suspended sentence, and sentenced him to
serve twenty years in prison, with all but five years and twenty
days suspended. The court credited Moorman with five years and
twenty days for time already served, and also ordered him to be
placed on parole with the same conditions as his original 1982
sentence.
On November 4, 1991, Moorman's parole officer filed a parole
violation report stating that Moorman had stopped reporting to the
parole office and had moved without obtaining permission. The
State petitioned to revoke Moorman's suspended sentence on November
5, 1991. Moorman was extradited from Texas and admitted to the
violations. On March 9, 1992, the District Court granted the
State's petition and sentenced Moorman to fifteen years at the
Montana State Prison, but suspended the sentence on the condition,
among others, that he serve ninety days in jail.
In September 1992, Moorman moved to Washington and failed to
report to his parole officer. Moorman's parole officer filed a
third parole violation report on September 11, 1992. He alleged
that Moorman had violated three conditions of his parole because he
had failed to report to the parole office since May, had failed to
3
pay restitution, and had failed to obtain chemical dependency
counseling. The State again petitioned to revoke Moorman's
suspended sentence. Moorman waived extradition from Washington and
admitted to the parole violations.
On July I, 1994, the District Court revoked Moorman's
suspended sentence and ordered him to serve fifteen years in the
Montana State Prison with no time suspended. The court credited
Moorman with 126 days for time already served but ordered that he
not receive credit for any other time due to his parole violations.
In its judgment and commitment, the court ordered:
that the Defendant shall continue to be designated a
dangerous offender for purposes of his parole under MCA
46-18-404. The Court finds that due to the Defendant's
uncontrolled behavior at the time of the offense, and his
unwillingness to abide by the terms of his probation,
that the Defendant represents a substantial danger to
other persons and society, due to the likelihood that he
will further victimize persons by illegal activity.
Moorman did not appeal the legality of his sentence pursuant
to §§ 46-20-101 through -104, MCA. Instead, he petitioned the
Sentence Review Division of the Supreme Court of Montana to review
his dangerous offender designation pursuant to §§ 46-18-901 through
-905, MCA. The Sentence Review Division denied the petition,
ruling that the District Court had considered the underlying
requirements to impose the dangerous offender designation.
Moorman then petitioned the District Court for relief pursuant
to the Montana Post-Conviction Hearing Act contained at §§ 46-Zl-
101 through -203, MCA (1993). He argued: (1) that the District
Court engaged in an ex post facto application of 5 46-18-404(4),
MCA (1993) (repealed 1995); (2) that his dangerous offender
4
designation terminated upon his release in 1985; (3) that the
dangerous offender designation imposed in 1994 was not supported by
substantial evidence; and (4) that the District Court violated
§ 46-18-102(3) (b), MCA (19931, when it failed to state its reasons
for imposing the most severe sentence. Moorman also claimed that
the District Court lacked jurisdiction to designate him a dangerous
offender.
The District Court denied Moorman's petition for post-
conviction relief, concluding that the issues raised in his
petition were procedurally barred by § 46-21-105(2), MCA. The
court also found that it had imposed Moorman's dangerous offender
designation pursuant to § 46-18-404(3), MCA (1981) (repealed 1995).
Therefore, the court found no ex post facto application of § 4618-
404(4), MCA (1993) (repealed 1995). Finally, the court found that
the July 7, 1994 judgment and third revocation of Moorman's
suspended sentence continued the dangerous offender designation for
the reasons contained in the judgment. Moorman appeals from the
District Court's denial of his petition for post-conviction relief.
1. Did the District Court properly apply the procedural bar
rule of § 46-21-105(2), MCA, to dismiss Moorman's petition for
post-conviction relief?
The standard of review for denial of post-conviction relief is
whether substantial evidence supports the findings and conclusions
of the district court. Walker v. State (1993), 261 Mont. 1, 6, 862
P.2d 1, 4.
Moorman argues that the procedural bar rule contained at § 46
Zl-105(Z), MCA, does not apply to jurisdictional issues, and that
an application to the Sentence Review Division should be considered
an appeal under 5 4621-105(2), MCA. It is undisputed that Moorman
did not file a direct appeal to the Montana Supreme Court challeng-
ing his conviction, his dangerous offender designation, or any of
his three subsequent sentence revocations.
A. Jurisdictional Issues
Section 46-21-105(Z), MCA, states: "When a petitioner has
been afforded a direct appeal of the petitioner's conviction,
grounds for relief that could reasonably have been raised on direct
appeal may not be raised in the original or amended petition." The
purpose of this waiver provision is to preserve the integrity of
the trial and direct appeal and to prevent abuse of the post-
conviction relief process. State v. Gorder (lYYO), 243 Mont. 333,
335, 792 P.2d 370, 371.
Moorman cites Smith v. State (1980), 186 Mont. 52, 606 P.2d
153, as authority for his argument that the procedural bar rule
does not apply to jurisdictional issues. However, the procedural
bar rule was not raised by the State nor addressed by this Court in
Smith because subsection (2) was not added to 5 46-21-105, MCA,
until 1981. In Smith we held that, at a revocation hearing, the
sentencing judge lacked statutory authority to designate a
defendant as dangerous, where the dangerous offender designation
had not been made in the original sentence. Smith, 606 P.2d at
155. As the State correctly argues in its brief, Moorman's
6
situation differs from Smith. Unlike the court in Smith, the
District Court designated Moorman as a dangerous offender in his
original 1982 sentence.
Moorman also cites State v. Akers (19381, 106 Mont. 43, 74
P.2d 1138, in support of his jurisdictional argument. An objection
that a court lacks subject matter jurisdiction is never waived and
may be raised at any stage of the proceedings. a, 74 P.2d at
1145. "Jurisdiction is the power to hear and determine the
particular action or proceeding as well as to make such orders and
render such judgment therein as the law authorizes in the class of
actions or proceedings to which it belongs." State v. District
Court of Eighteenth Judicial Dist. (1966), 147 Mont. 263, 267, 410
P.2d 933, 935.
Montana has not directly answered the issue raised by Moorman.
However, other jurisdictions with post-conviction relief statutes
similar to Montana's have. In Maxfield v. State (Idaho App. 1985),
700 P.2d 115, the defendant petitioned for post-conviction relief.
The Court of Appeals of Idaho declined to review several claims,
holding that post-conviction relief cannot be used to correct mere
errors or irregularities in trial court proceedings which are not
jurisdictional and which, at the most, render a judgment merely
voidable. Maxfield, 700 P.2d at 121 (citing 39 Am.Jur.2d, HABEAS
CORPUS § 30 (1968)). However, the Idaho court explained an
exception to the general rule. Post-conviction relief is available
"to cure fundamental errors occurring at the trial which affect
either the jurisdiction of the court or the validity of the
7
judgment, even though these errors could have been raised on
appeal." Maxfield, 700 P.Zd at 121.
In State v. Ohnmacht (Iowa 1983), 342 N.W.2d 838, 843, the
Iowa Supreme Court reviewed a jurisdictional issue which had not
been previously raised on direct appeal. The court held that
ti [vloid sentences are not subject to the usual concepts of waiver,
whether from a failure to seek review or other omissions of error
preservation." Ohnmacht, 342 N.W.2d at 843.
Moorman's jurisdictional argument challenges the District
Court's authority to impose his dangerous offender designation. If
the District Court lacked the statutory authority to impose the
dangerous offender designation on Moorman, then Moorman's sentence
is void. Therefore, we hold that the procedural bar rule contained
at § 46-21-105(2), MCA, does not apply in a petition for post-
conviction relief when the sentencing court lacked subject matter
jurisdiction to impose the particular sentence.
The remainder of Moorman's claims contained in his petition
for post-conviction relief reasonably could have been raised on
direct appeal. Therefore, these claims are procedurally barred
from consideration in a post-conviction proceeding. See §§ 46-ZO-
104, 46-21-105(2), MCA; Petition of Slice (1995), 271 Mont. 337,
338, 896 P.2d 1125, 1126. The District Court properly applied the
procedural bar rule when it declined to address the issues that
Moorman raised for the first time in his petition for post-
conviction relief.
B. Sentence Review
As an additional argument, Moorman also asserts that an
application to the Sentence Review Division of the Supreme Court of
Montana initiated pursuant to § 46-18-903, MCA, should be consid-
ered a "direct appeal" according to 5 46-21-105(2), MCA. There-
fore, he argues, the District Court should have considered the
merits of the arguments he made for the first time in his petition
for post-conviction relief.
In interpreting a statute, we look first to the plain meaning
of the words it contains. Weere v. David (1996), 275 Mont. 376,
385, 913 P.2d 625, 631. When the language of the statute is clear
and unambiguous, the statute speaks for itself and we will not
resort to other means of interpretation. Weere, 913 P.2d at 631.
This Court has previously explained the difference between an
application to the Sentence Review Division and a direct appeal.
Section 46-18-903, MCA, allows a defendant to apply to the Sentence
Review Division to challenge the inequity or disparity of his
sentence. State v. Evans (lYYO), 247 Mont. 218, 231, 806 P.2d 512,
520. The Sentence Review Division may increase or decrease the
original sentence. Section 46-18-904, MCA. However, the Sentence
Review Division does not review errors of law resulting in an
illegal sentence. State v. Simtob (1969), 154 Mont. 286, 288, 462
P.2d 873, 874. Sentence reviews are final. Section 46-18-905,
MCA.
In contrast, a direct appeal to the Montana Supreme Court,
initiated pursuant to 55 46-20-101 through -105, MCA, allows a
9
defendant to challenge the legality of a sentence. This Court only
reviews sentences to determine if they are legal. State v. Lloyd
(1984), 208 Mont. 195, 199, 676 P.2d 229, 231.
Moorman's argument fails to distinguish between the different
purposes of post-conviction relief and sentence review. Post-
conviction relief provides defendants with a "procedure to address
claims that would have been raised by means of a petition for writ
of habeas corpus or a petition for writ of error coram nobis."
Renz, Post-Conviction Relief in Montana, 55 Mont. L. Rev. 331, 336
(1994). On the other hand, the Sentence Review Division reviews
the equity of a sentence.
The Montana Post-Conviction Relief Hearing Act, when read in
conjunction with § 46-20-104, MCA, and 5 46-18-903, MCA, differen-
tiates a direct appeal from an application for sentence review. A
defendant may appeal his conviction to the Montana Supreme Court
pursuant to 5 46-20-104, MCA. A defendant may also apply for a
review of his sentence with the Sentence Review Division pursuant
to §s 46-18-901 through -905, MCA. However, nowhere in the
language of §§ 46-18-901through -905, MCA, does the word "appeal"
appear.
The plain language of § 46-21-105(2), MCA, is clear and
unambiguous. Therefore, we hold that "an application for review of
the sentence" as contained in 5 46-18-903(l), MCA, is not a "direct
appeal" within the context of § 46-21-105(Z), MCA. Because Moorman
did not directly appeal his claimed errors to this Court, he is
procedurally barred from raising them in a petition for post-
10
conviction relief. Section 46-21-105(2), MCA. Moorman had the
opportunity in 1982, 1990, 1992, and 1994 to appeal his sentence,
subsequent revocations of the sentence, and the dangerous offender
designation to this Court. He chose not to do so. He cannot
apply to the Sentence Review Division, fail to raise issues there,
and preserve those issues in a petition for post-conviction relief.
Moorman argues even though he did not object to his dangerous
offender designation at the district court level, that the plain
error doctrine applies. In State v. Finley (Mont. 1996), 915 P.2d
208, 215, 53 St.Rep. 310, 315, we discussed the circumstances under
which we will review issues of plain error. We held that we would
review claimed errors that implicate a criminal defendant's
fundamental constitutional rights under the plain error rule where
failing to do so may result in a manifest miscarriage of justice,
leave the question of the fundamental fairness of the proceedings
unsettled, or compromise the integrity of the judicial process.
Finley, 915 P.2d at 215. The plain error rule is of limited
application and is to be used sparingly. State v. Arlington
(1994), 265 Mont. 127, 152, 875 P.2d 307, 322. We decline to
extend the common law rule of plain error to cases such as
Moorman's, where the defendant had the opportunity to challenge his
dangerous offender designation on direct appeal but chose not to.
With the exception of the jurisdictional issue, the District
Court properly applied the procedural bar rule of 5 46-21-105(2),
MCA, to dismiss Moorman's petition for post-conviction relief.
Therefore, we decline to address whether Moorman's dangerous
11
offender designation terminated in 1985, whether his 1994 dangerous
offender designation is supported by substantial evidence, or
whether the District Court failed to adequately state its reasons
for imposing the most severe sentence on Moorman when it revoked
his suspended sentence for the third time in 1994.
However, because we conclude that the District Court improper-
ly applied the procedural bar rule when it declined to address
Moorman's jurisdictional argument, we address that issue.
2. Did the District Court possess jurisdiction pursuant to
§ 46-l8-404(3), MCA (1981) (repealed 1995), upon a revocation of
Moorman's suspended sentence, to continue his dangerous offender
designation which it had imposed in the original sentence?
Moorman argues that the District Court lacked jurisdiction to
continue his dangerous offender designation when it revoked his
suspended sentence in 1994. The State contends that the court had
no alternative but to continue the conditions of Moorman's original
sentence. We agree with the State.
District courts have broad discretion in their sentencing
decisions. State v. Alexander (1994), 265 Mont. 192, 203, 875 P.2d
345, 352. However, a district court has no power to impose a
sentence in the absence of specific statutory authority. State v.
Hatfield (1993), 256 Mont. 340, 346, 846 P.2d 1025, 1029.
In reviewing the District Court's jurisdiction to continue
Moorman's dangerous designation, we look to 5 46-18-404, MCA (1981)
(repealed 1995), because it was the statute in effect at the time
12
the crime was committed. See State v. Azure (1978), 179 Mont. 281,
282, 587 P.2d 1297, 1298.
At the time of Moorman's initial sentencing, 5 46-18-404, MCA
(1981) (repealed 1995), did not allow a district court in a
revocation proceeding to add new terms or conditions to a defen-
dant's original sentence. Finley, 915 P.Zd at 221. A district
court could not impose a dangerous offender designation upon
revocation of a suspended sentence where the original sentence was
silent on the issue or designated the defendant as nondangerous.
Smith, 606 P.2d at 154-55; Petition of Arledge (1988), 232 Mont.
450, 756 P.2d 1169, 1170.
In Smith, the original judgment was silent as to whether the
defendant was designated as dangerous or nondangerous. We found
that by implication the district court had not found that the
defendant was a substantial danger to the community. Here,
however, when Moorman was originally sentenced in 1982, the
sentencing court specifically designated him as a dangerous
offender. The District Court, under the 1981 version of § 46-l8-
203, MCA, had the authority "to revoke the suspension or impose
sentence and order the person committed." It did not have the
authority to modify the sentence. Therefore, Moorman's original
dangerous designation remained a part of his sentence upon all
subsequent revocations of his suspended sentence.
We hold that the District Court possessed statutory authority,
and thus had jurisdiction, upon a revocation of Moorman's suspended
sentence, to continue his dangerous offender designation imposed in
13
the original sentence. Substantial evidence supports the District
court 's findings and conclusions that Moorman's claims are
prohibited by the procedural bar rule, and that Moorman was
properly designated as a dangerous offender. The District Court's
order denying Moorman's petition for post-conviction relief is
affirmed.
-L//e/.
Chief Justice
We concur:
14