August 14 2009
DA 08-0641
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 272N
KENT TERRILL RABE,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and For the County of Ravalli, Cause No. DC 00-75
Honorable Jeffrey H. Langton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Kent Terrill Rabe, self-represented, Great Falls, Montana
For Appellee:
Steve Bullock, Montana Attorney General; Matthew T. Cochenour, Assistant
Attorney General, Helena, Montana
George H. Corn, Ravalli County Attorney, Hamilton, Montana
Submitted on Briefs: July 15, 2009
Decided: August 14, 2009
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be cited
as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and
its case title, Supreme Court cause number, and disposition shall be included in this Court’s
quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 Kent T. Rabe (Rabe) appeals from an opinion & order denying his motion for sentence
modification by the Twenty-First Judicial District Court, Ravalli County. We affirm.
¶3 The issue on appeal is whether the District Court correctly determined that Rabe’s
motion to modify his sentence was procedurally barred.
¶4 Rabe challenges several conditions of his sentence in this appeal. On September 27,
2000, Rabe pled guilty under an open plea agreement to two felony counts of incest. On
December 13, 2000, the District Court sentenced Rabe to two consecutive 30-year prison
sentences with 30 years suspended on several conditions. Rabe did not apply for sentence
review, did not appeal his conviction or sentence directly, and did not file a petition for
postconviction relief. Nonetheless, eight years later, on August 18, 2008, Rabe filed a pro se
motion for sentence modification, arguing that his sentence is facially invalid and thus open
to challenge under Lott v. State, 2006 MT 279, 334 Mont. 270, 150 P.3d 337. The District
Court denied Rabe’s motion.
¶5 This Court reviews a district court’s denial of a petition for postconviction relief to
determine whether the district court’s findings of fact are clearly erroneous and whether its
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conclusions of law are correct. Maldonado v. State, 2008 MT 253, ¶ 10, 345 Mont. 69, 190
P.3d 1043.
¶6 Rabe acknowledges that his claims are time barred, yet argues he is entitled to relief
based on Lott. In Lott, this Court held that a statutory procedural bar to habeas corpus relief
unconstitutionally suspended the writ of habeas corpus when applied to a facially invalid
sentence. Lott, ¶ 22. A facially invalid sentence is “a sentence which, as a matter of law, the
court had no authority to impose.” Lott, ¶ 22.
¶7 Rabe’s sentence was not facially invalid because the sentencing statutes in effect at
the time of his sentencing authorized the conditions that Rabe now challenges. Unlike Lott,
Rabe could have raised the claims that he now raises when he was sentenced in 2000. Thus,
the District Court was correct that Lott did not apply to Rabe’s claims.
¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our
1996 Internal Operating Rules, as amended in 2003, which provides for memorandum
opinions. It is manifest on the face of the briefs and the record that the appeal is without
merit because the issue is clearly controlled by settled Montana law.
¶9 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ JOHN WARNER
/S/ BRIAN MORRIS
/S/ JAMES C. NELSON
/S/ JIM RICE
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