No. 02-261
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 302N
MICHAEL ELLENBURG,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Defendant and Respondent.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John W. Larson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Michael Ellenburg, Missoula, Montana (Pro Se)
For Respondent:
Hon. Mike McGrath, Attorney General; Jennifer Anders,
Assistant Attorney General, Helena, Montana
Fred Van Valkenburg, Missoula County Attorney, Missoula,
Montana
Submitted on Briefs: October 31, 2002
Decided: December 12, 2002
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent. It shall be filed as a
public document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.
¶2 Michael Ellenburg filed a pro se petition for postconviction
relief and other requests for relief from a 1996 judgment against
him. The Fourth Judicial District Court, Missoula County, amended
the 1996 judgment in part, but denied the rest of the requested
relief. Ellenburg appeals. We affirm.
¶3 The District Court entered the 1996 judgment against Ellenburg
after he pled guilty to three traffic-related charges, including
driving under the influence of alcohol. Pursuant to a plea
agreement, the court suspended a portion of Ellenburg's sentence on
conditions, including--at paragraphs 12 through 17 of the judgment-
-that he pay $1,125 toward costs of his incarceration, a $50 county
attorney surcharge fee, $100 toward the cost of prosecution, a
$1,750 fine, a $15 court technology fee, and a probationary
supervision fee of $10 per month. We affirmed Ellenburg's
conviction and sentence on direct appeal. State v. Ellenburg
(1997), 283 Mont. 136, 938 P.2d 1376.
¶4 In the action from which this appeal is taken, Ellenburg
petitioned the District Court for postconviction relief and moved
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to amend the judgment and for "Admendment [sic] to Strike." In his
motion to amend the judgment, Ellenburg argued he had no ability to
pay the costs of incarceration and prosecution imposed in
paragraphs 12 and 14 of the 1996 judgment. In his "Admendment
[sic] to Strike," Ellenburg asked that "12#, 14#, !5# [sic], 16#,
in the original court order . . . be stricken in the Judgment of
the same. And to refund all fees and fines paid due to illegal
sentencing and violation of 46-18-242(1)(a)."
¶5 In its Opinion and Order on Ellenburg's requests for relief,
the District Court noted that since his 1996 sentencing, Ellenburg
has been sentenced to the Montana State Prison for 40 years, with
25 years suspended, on convictions for theft and forgery. Without
holding a hearing and "in the interest of judicial economy," the
District Court struck a total of $1,225 of the amounts it had
ordered Ellenburg to pay. Specifically, the court struck paragraph
12 of its 1996 judgment ordering Ellenburg to pay $1,125 in costs
of incarceration, and paragraph 14 of the judgment ordering him to
pay $100 toward the cost of prosecution. Ellenburg appeals.
DISCUSSION
¶6 Ellenburg argues on appeal that the District Court lacked
authority to impose the fees, fines and costs it did. However, he
did not challenge the costs and fees imposed in paragraph 13 or 17
in any of his pleadings in the District Court. It is well-settled
that a party may not raise an issue on appeal that was not raised
in the district court. See State v. Henderson (1994), 265 Mont.
454, 458, 877 P.2d 1013, 1016.
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¶7 Given that the District Court struck the amounts Ellenburg was
ordered to pay in paragraphs 12 and 14 of the judgment, only his
efforts to have paragraphs 15 and 16 stricken remain in question.
Ellenburg argues that, under State v. Hilgers, 1999 MT 284, 297
Mont. 23, 989 P.2d 866, and State v. Brown (1994), 263 Mont. 223,
867 P.2d 1098, the State of Montana was required to present
evidence in the presentence investigation report of the amount of
the pecuniary loss supporting restitution and of his ability to pay
restitution, fines, fees and costs ordered under the 1996 judgment
against him.
¶8 There are several problems with Ellenburg's argument. First,
unlike Hilgers and Brown, this is not a direct appeal of a criminal
conviction. Ellenburg's failure to raise on direct appeal the
issue of whether the presentence investigation report should have
included the information he now demands with regard to paragraphs
15 and 16 precludes his ability to raise it at this time. See §
46-21-105(2), MCA. In addition, both Hilgers and Brown dealt with
restitution, not fines, fees and costs. Paragraphs 15 and 16
impose a fine and a fee.
¶9 Ellenburg's argument that he is entitled to a refund of fines
and fees paid due to "illegal" sentencing and "violation" of § 46-
18-242(1)(a), MCA, also is without merit. Ellenburg has not
established that any portion of his sentence was illegal.
Furthermore, like Hilgers and Brown, § 46-18-242, MCA, addresses
restitution-related matters, not fines, fees and costs.
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¶10 The fact is that Ellenburg does not allege he still owes any
fines, fees or costs in this matter. He indicates he already has
paid nearly $2,600, and the District Court has stricken an
additional $1,225 of his total obligation of $3,040 (excluding the
paragraph 17 probationary fee of $10 per month). Therefore,
Ellenburg no longer owes any amounts under paragraphs 12 through 16
of the judgment.
¶11 On this record, we hold Ellenburg has not established error by
the District Court.
¶12 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ PATRICIA COTTER
/S/ TERRY N. TRIEWEILER
/S/ JIM REGNIER
/S/ JIM RICE
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