JORGE TORRES, ;
Defendant and Petitioner.
This matter comes before the Court on petitioner Jorge Torres'
petition for post-conviction relief. The facts which give rise to
this petition are as follows:
In July 1994, Torres was charged with aggravated assault, a
felony, pursuant to § 45-5-202, MCA. In February 1995, Torres pled
guilty to the charged offense and signed an Acknowledgement of
Waiver of Rights by Plea of Guilty form. In April 1995, the
District Court sentenced Torres to a term of twenty years in the
Montana State Prison. In June 1995, Torres filed a motion to
withdraw his guilty plea, which the District Court denied in
December 1995.
Torres subsequently applied for a sentence review with the
Sentence Review Division of the Montana Supreme Court. Before the
Sentence Review Division heard the application, Torres was advised
that the Sentence Review Division had the authority to not only
reduce or affirm the sentence, but also to increase it and that
there were no rights of appeal from its decision. Torres
acknowledged that he understood the consequences of appearing
before the Sentence Review Division and stated that he wished to
proceed.
Following the hearing, the Sentence Review Division stated
that the reasons advanced for modification of the sentence were
insufficient to hold that the sentence imposed by the District
Court was inadequate or excessive. However, the Sentence Review
Division modified Torres' sentence by adding the restriction that
Torres not be considered eligible for parole or other release until
he had served seven years of the sentence imposed, during which
time he must complete the anger management program and other
counseling deemed appropriate by the prison staff. The Sentence
Review Division stated that its reasons for the restriction were
that during the sentence review hearing Torres exhibited absolutely
no remorse or concern for the victim of the crime, illustrated
disdain for the victim, and accepted no responsibility for his
actions.
Torres argues that the Sentence Review Division's restriction
renders his guilty plea involuntary because the District Court did
not inform him of the effect of any penalty enhancement provision
or special parole restriction pursuant to 5 46-12-210, MCA. Torres
claims that since the District Court sentenced him without
informing him that he could be designated ineligible for parole,
the effect of the Sentence Review Division's parole restriction was
to render his guilty plea involuntary. Torres also argues that the
restriction was improper since the Sentence Review Division
determined that the reasons Torres advanced for modification of his
sentence were insufficient to hold that the sentence imposed by the
District Court was inadequate or excessive.
The State of Montana filed a response to the petition arguing
that § 46-18-905, MCA, provides that a decision of the Sentence
Review Division is final and cannot be appealed. The State argues
that Torres' petition for post-conviction relief is, in effect, an
appeal of the Sentence Review Division's decision and is therefore
prohibited by § 46-18-905, MCA.
In this Court's July 30, 1996, order in Whitehorn v. State,
Cause No. 96-265, we reviewed the decision of the Sentence Review
Division under a petition for post-conviction relief. Section 46-
18-905, MCA, provides no avenue of appeal for a defendant to
challenge the legality of a decision by the Sentence Review
Division. Section 46-21-101, MCA, Montana's post-conviction relief
statute, provides that:
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A person adjudged guilty of an offense in a court of
record who has no adequate remedy of appeal and who
claims . . . that the court was without jurisdiction to
impose the sentence . . may petition the court that
imposed the sentence or the supreme court to vacate, set
aside, or correct the sentence . . . .
Therefore, we conclude that a petition for post-conviction relief
or other extraordinary writ is appropriate for the purpose of
challenging the decision of the Sentence Review Division.
In this case, the Sentence Review Division found there were
insufficient reasons to find that Torres' sentence was inadequate
or excessive. Rule 17 of the Rules of the Sentence Review Division
provides that:
The sentence imposed by the District Court is presumed
correct, and the sentence will not be reduced or
increased unless it is deemed clearly inadequate or
excessive.
Nonetheless, the Sentence Review Division modified Torres' sentence
by restricting his parole eligibility. Having found that the
original sentence was not inadequate, the Sentence Review Division
lacked jurisdiction to alter the sentence.
After due consideration of the petition and response,
IT IS HEREBYORDEREDthat Torres' petition for post-conviction
relief is GRANTED in regard to the Sentence Review Division's
modification of Torres' sentence and that provision is ordered
stricken from the Sentence Review Division's decision and from
Torres' prison sentence.
The Clerk is directed to mail a true copy of this order to the
petitioner personally, to the Attorney General and to the
Yellowstone County Attorney.
DATED this Jl- r% day of August, 1996.
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Justices
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Justice James C. Nelson specially concurs and dissents.
I concur in the result of our order, but I dissent from the
procedural mechanism through which we are granting relief to
Tomes. I am not satisfied that 5 46-21-101, MCA, serves as the
authority for this order. By its language, that section of the
Montana Code provides a postconviction remedy from an
unconstitutional or unlawful sentence imposed by a court. Here the
problem is not from anything which the sentencing court did, but,
rather, results from the Sentencing Review Board effectively
increasing Torres' sentence in violation of the Board's own Rule
17, which prohibits the Board from increasing or reducing a
sentence "unless it is deemed clearly inadequate or excessive."
Since the District Court's sentence was found to be neither
inadequate nor excessive, the Board had no jurisdiction to modify
the sentence in violation of its own rules.
The Sentence Review Board is appointed by the Chief Justice of
the Supreme Court and functions as a review division of this Court.
Section 46-18-901(l), MCA. Accordingly, this Court has the
responsibility and supervisory authority to insure that its
sentence review division complies with the statutes and rules
governing the division's operations in the same manner that we have
such responsibility and authority to insure that other boards and
commissions appointed by and supervised by this Court act within
their jurisdiction and authority. Art. VII, Sec. 2, Mont.Const.
Rule 17, M.R.App.P., codifies this Court's constitutional
power "to hear and determine such original and remedial writs as
may be necessary or proper to complete the exercise of its
jurisdiction", and it is on that basis alone, I believe, that we
are authorized to correct the unlawful sentence modification by the
Sentence Review Board in this case.
Similarly, it was on that basis that we were authorized to
enter our July 30, 1996, order in Whitehorn, Cause No. 96-265.
While we entered our order in that case on the basis of a petition
for postconviction relief, the issue of the procedural mechanism by
which the Sentence Review Board's decision was brought before this
Court was not raised or addressed. Our order was correct; the
procedural mechanism under which we entered it was not.
In my view, § 46-21-101, MCA, does not contemplate or
authorize a petition for postconviction relief from action by the
Sentence Review Board. As long as the Board is acting within its
jurisdiction and authority under its rules and the applicable
statutes, then its decision is final. Section 46-18-905, MCA.
There is no appellate review of the Board's decision either by way
of direct appeal or postconviction relief.
By failing to recognize the proper basis on which we are
authorized to deal with Torres' demand for relief (i.e. our
discretionary power of supervisory control over the review division
of this Court), we are opening up an avenue for routine appellate
review of decisions of the Sentence Review Board via postconviction
relief--a remedy which is not authorized by any of/he governing
statutes.
Justice Karla M. Gray:
I join in the concurring and dissenting opinion of Justice
Nelson.