STATE v MOORMAN
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No. 96-051 IN THE SUPREME COURT OF THE STATE OF MONTANA 1996 STATE OF MONTANA, Plaintiff and Respondent, v. MARTIN C. MOORMAN, Defendant APPEAL FROM: and Appellant. 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 Missoula, For T. Renz, Montana Montana Defender Project, Respondent: Honorable Joseph Patricia Jordan, Helena, Montana Deborah Poison, P. Mazurek, Attorney Assistant Attorney Kim Christopher, Montana ;'i Submitted County on Briefs: Decided: General; General, Attorney, September November 26, 21, 1996 1996 Chief Justice J. Martin Judicial District was Court, in following 1. rule Did of for post-conviction 2. by robbery contested his the the Twentieth and was designatdangerous relief, the Court. denial offender which of his the petition We affirm. issues District Court § 46-21-105(2), for appeals dispositive the of post-conviction Moorman relief. Opinion and sentenced Moorman denied. post-conviction the Lake County, a petition Court The delivered convicted offender. designation District Turnage Moorman ed a dangerous for A. are raised properly MCA, to apply dismiss on appeal: the procedural bar petition for Moorman's relief? Did the § 46-18-404(3), District Court MCA (1981) Moorman's suspended designation which (repealed sentence, it possess to had imposed jurisdiction 1995), continue in the pursuant upon his revocation dangerous original to of offender sentence? BACKGROUND Moorman 10, was convicted 1982. He had well as drug- for assault District State designated robbery a previous record and alcohol-related on Court Montana of a police sentenced Prison, Moorman Lake of and to fifteen a term years offender on November burglaries and a 1977 On November officer. a dangerous County thefts offenses, Moorman with in of 17, twenty conviction 1982, years suspended. for as in The court purposes of the the also parole eligibility. Moorman subject to was released the terms on and parole on September conditions established 17, by 1985, the and was Montana Department of and monthly revoke reports his he failed parole sentence officer, his 19, 1990, suspended Court revoked serve twenty Moorman's years days placed for on parole with all same Moorman 1990, and conditions held conditions the District years twenty and five his to years ordered as to him with also fled sentenced five Moorman to hearing the and but served, the 27, initial petitioned a revocation sentence, credited already time State to violating with court make his 1990. On December prison, The At suspended in 28, admitted sentence. suspended. twenty Moorman to the on June and had to be extradited. on December days After to his suspended California of Institutions. him and to original be 1982 sentence. On November violation 4, report parole office State stating petitioned 5, 1991. 1991, and that had violations. was State's petition Montana State In and September report to third parole that Moorman had failed his sentenced Prison, that but 1992, ninety Moorman violation to sentence days in to office 3 to granted years on the Washington 11, parole on November the the at the condition, jail. parole conditions the The admitted fifteen on September three the the to to Court Moorman's report had violated and District moved officer. reporting sentence Texas Moorman suspended he serve parole to report the a parole permission. suspended from 1992, filed obtaining Moorman's 9, officer had stopped without extradited On March parole Moorman moved to revoke Moorman among others, Moorman's of his since and failed officer filed 1992. because a He alleged parole to May, had failed he to pay restitution, and counseling. The suspended to On the suspended I, Montana State Moorman with not In receive its to dependency revoke extradition District and ordered with 126 days for for judgment chemical petitioned waived the Prison credit obtain from Moorman's Washington and violations. 1994, sentence to again Moorman parole July failed State sentence. admitted had him to revoked serve fifteen suspended. no time time Court The already served time due to his any other and commitment, the court Moorman's years in the credited ordered but court that parole he violations. 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 to did not §§ 46-20-101 Sentence his through Review dangerous appeal legality -104, Division offender the of MCA. of the pursuant MCA. The Sentence Review ruling that the District Court had of Moorman to the Court MCA then Montana 101 through engaged (1993) impose the dangerous petitioned Post-Conviction -203, in an ex post (repealed 1995); Court Act 4 that the for to review through petition, underlying relief contained (1) application (2) the the designation. He argued: facto Montana denied offender Hearing MCA (1993). petitioned considered the District pursuant to §§ 46-18-901 Division to he Court -905, requirements sentence Instead, Supreme designation his his at that of pursuant §§ 46-Zl- the District 5 46-18-404(4), dangerous offender designation terminated dangerous offender substantial his designation and (b), MCA (19931, imposing the the District most Court (4) in in that 1985; District failed sentence. that to state reasons claimed him by violated its also to designate the supported Court Moorman jurisdiction (3) 1994 was not the when it severe lacked release imposed evidence; § 46-18-102(3) for upon that a dangerous offender. District The relief, conviction petition were court also the July reasons District 1. rule of Did The standard whether the P.2d 1, 4. MCA (1981) 1995). Finally, the judgment and in the of § 4618- of his District Moorman petition Court MCA, for properly to court that Moorman's designation appeals the for from post-conviction apply dismiss found of offender judgment. offender 1995). revocation the dangerous The (repealed (repealed continued his MCA. application third in dangerous facto the relief. procedural petition Moorman's bar for relief? of review substantial district Moorman's post- raised § 46-21-105(2), had imposed § 46-21-105(2), post-conviction by for issues no ex post denial the the petition found contained Court's that barred it court sentence Moorman's to § 46-18-404(3), 1994 7, suspended of that MCA (1993) 404(4), the procedurally pursuant Therefore, denied concluding found designation the Court for evidence court. Walker denial supports v. State of post-conviction the findings (1993), relief is and conclusions 261 Mont. 1, 6, 862 Moorman Zl-105(Z), argues that MCA, does an application an appeal not to the under the procedural apply Sentence not file a direct ing his conviction, his three subsequent A. Jurisdictional been of trial 335, 792 P.2d direct as does not apply was not Smith because until 1981. sentencing had 155. not As the the Smith made the challengor any of has petitioner's or amended is and conviction, have been raised original to to State preserve v. (lYYO), The integrity abuse Gorder on direct petition." the prevent State (1980), argument his that of the of post- 243 Mont. (2) we held lacked in State State nor was not the that, at the 333, correctly addressed to sentence. 6 in MCA, hearing, to Smith, its Court 5 46-21-105, offender in rule procedural by this a revocation authority argues 606 P.2d bar the dangerous original 52, procedural However, added statutory where the 186 Mont. issues. by the as dangerous, been Court a petitioner "When reasonably v. subsection judge defendant of jurisdictional raised In Moorman 371. for to that designation, states: provision Smith authority rule in process. cites 153, bar could appeal 370, Moorman and that revocations. appeal waiver relief Supreme § 46 be considered undisputed offender MCA, that this is at Issues be raised and conviction sentence It should Montana dangerous direct relief may not purpose the a for appeal to the 46-21-105(Z), afforded grounds his contained issues, Division MCA. appeal rule jurisdictional Review 5 4621-105(2), did Section to bar brief, the designate a designation 606 P.2d Moorman's at situation differs District Court original 1982 from Smith. designated Moorman also P.2d 1138, support that a court in cites lacks may be raised at State of his subject any of is the action such judgment actions or proceedings 933, 700 P.2d 115, The Court of errors that directly the 43, his is never waived a, hear and 74 P.2d and authorizes determine at the orders and in the class State belongs." (1966), 74 An objection as to make such law it Appeals v. District 147 Mont. of § 30 263, to the general "to fundamental jurisdiction declined relief of 267, 410 at at errors the be used to (citing court 7 correct which mere are a judgment court the not merely HABEAS explained relief the or claims, 39 Am.Jur.2d, Idaho at 1985), relief. several Post-conviction the App. review render occurring of to proceedings 121 statutes post-conviction most, However, rule. (Idaho court the by Moorman. relief State cannot trial 700 P.2d exception the for Idaho raised post-conviction petitioned which, (1968)). issue v. in Maxfield, the In Maxfield post-conviction and voidable. with defendant jurisdictional either in 106 Mont. (19381, to answered have. irregularities cure power Dist. jurisdictions or CORPUS the offender proceedings. which Judicial to Montana's holding the as the to has not other similar Smith, 935. Montana However, in argument. as well therein of Eighteenth Akers jurisdiction or proceeding render P.2d v. matter "Jurisdiction Court court as a dangerous jurisdictional stage particular the sentence. Moorman 1145. Unlike is trial which validity an available affect of the judgment, even appeal." though Maxfield, In State Iowa Supreme been v. Ohnmacht Court sentences whether from are District to dangerous offender is Therefore, void. at conviction relief jurisdiction MCA, to for remainder of post-conviction consideration in 104, 46-21-105(2), MCA; 338, 896 P.2d 1126. Moorman conviction the statutory bar raised relief. then waiver, of to error apply in District rule particular contained for contained reasonably these could claims a post-conviction Petition when it for the first are in of Slice declined time matter petition raised procedurally address in his barred 271 Mont. 337, applied the properly to on See §§ 46-ZO- (1995), Court his been proceeding. The District rule have subject post- sentence. claims lacked the sentence a petition court If impose Moorman's bar sentencing Therefore, 1125, that designation. the procedural not of the authority on Moorman, relief from procedural offender that not 843. dangerous Moorman's appeal. at had omissions his the direct other the held concepts challenges does on 843, which court argument when the impose The usual or 342 N.W.2d we hold raised 838, issue the review designation § 46-21-105(2), The to seek lacked been 342 N.W.2d appeal. subject to impose Court 1983), direct jurisdictional authority have a jurisdictional Ohnmacht, Moorman's the not could 121. (Iowa on a failure preservation." at reviewed raised ti [vloid errors 700 P.Zd previously Court's these the petition issues for that post- B. Sentence As an additional application to the Montana ered fore, he merits of pursuant to appeal" argues, the words 913 P.2d and to contains. 625, 631. the Review the Division State 520. Sentence sentence. Division sentence. P.2d 873, be considMCA. There- the first time in first to 874. v. v. of his Evans language of for the petition Review Review State v. Sentence the or 247 Mont. 218, may MCA. errors Simtob (1969), reviews are final. to 231, 631. an appeal. the Sentence of his 512, decrease or law at 806 P.2d However, of not between disparity increase clear we will difference to apply 376, is 913 P.2d inequity review statute and a direct a defendant 46-18-904, not the and the meaning 275 Mont. itself Division Division Section plain Weere, explained (lYYO), the (1996), interpretation. challenge does David speaks Sentence to sentence. illegal statute MCA, allows 46-18-903, Review of we look has previously Section original MCA, should Court considered When the means to The Supreme an have Weere Court application that should he made for other This the 5 46-21-105(2), Court a statute, unambiguous, resort to asserts relief. it 385, of § 46-18-903, District arguments also Division according the interpreting the Moorman Review post-conviction In of argument, Sentence initiated a "direct for Review the the resulting 154 Mont. in 286, Section Sentence 288, an 462 46-18-905, MCA. In initiated contrast, pursuant a direct to appeal 55 46-20-101 9 to the through Montana -105, Supreme MCA, Court, allows a defendant to challenge reviews sentences to (1984), 208 Mont. of conviction claims of Renz, 195, 199, 676 P.2d fails would have or equity of tiates a direct to his to 46-18-901 of Lloyd of Postto address a petition of error 55 Mont. Sentence different review. L. Review for coram writ nobis." Rev. 331, Division Relief his sentence Hearing Act, MCA, and 5 46-18-903, from an application conviction 5 46-20-104, of language only v. the a "procedure writ Montana, the § 46-20-104, appeal review §s hand, State sentence by means Post-Conviction may appeal pursuant in Court 336 reviews a sentence. with defendant legal. between with for This 231. and raised a petition other are 229, defendants Relief The Montana conjunction relief been Post-Conviction On the they to distinguish provides corpus (1994). the if post-conviction that of a sentence. determine relief habeas legality argument Moorman's purposes the the through to the A defendant MCA. with for -905, §§ 46-18-901through Montana Review However, MCA, in review. Supreme may also MCA. read MCA, differen- sentence Sentence -905, when for the a pursuant in nowhere does Court apply Division A word the "appeal" appear. The plain language unambiguous. Therefore, the as contained sentence" appeal" did within not procedurally directly the § 46-21-105(2), we hold context appeal barred of from that MCA, is "an application 5 46-18-903(l), MCA, is of § 46-21-105(Z), MCA. claimed to raising errors them 10 in and for in his clear review not a "direct Because this a petition Court, for of Moorman he is post- conviction relief. opportunity in subsequent to to the Moorman offender 208, which review claimed fundamental failing leave the Finley, 915 application and 265 (1994), 315, v. of plain in the 215. a be used fairness 875 P.2d common law rule of plain where dangerous offender the the defendant designation properly MCA, to dismiss Therefore, we exception of applied Court had the the Moorman's decline to the petition address 11 for rule is of v. limited Arlington We decline cases to to as such to challenge but chose not the of his District to. 5 46-21-105(2), post-conviction whether justice, process. issue, bar where judicial 322. appeal jurisdictional procedural rule proceedings opportunity on direct we would the rule error under of State 307, 915 P.2d error the sparingly. 152, plain defendant's of error 127, Moorman's, plain of the that miscarriage integrity dangerous circumstances criminal the plain his We held a manifest The to there, relief. 1996), the under issues that error. fundamental raise the He cannot (Mont. Finley implicate rights to so. level, we discussed that the to court Mont. the With he did district issues is do to object 310, at not not compromise P.2d offender post-conviction the errors or dangerous for In State of and the appeal fail do so may result unsettled, extend at question sentence, to Division, constitutional to his and 1994 though even review had in a petition applies. we will Moorman He chose issues 53 St.Rep. MCA. sentence, Review designation 215, the Court. argues doctrine 1992, of this those 46-21-105(2), 1990, Sentence and preserve error 1982, revocations designation apply Section Moorman's relief. dangerous offender designation offender whether terminated designation the is for imposing his suspended failed sentence However, supported Court District because ly the applied the Moorman's most Did the which Moorman his suspended argues dangerous sentence no alternative but sentence. State 352. sentence in the Hatfield the reviewing Moorman's dangerous (repealed 1995), of the broad that improperto his address issue. pursuant upon to a revocation dangerous original of offender sentence? lacked jurisdiction when contends it that to revoked the his court of Moorman's discretion (1994), District in has no statutory 346, had original we look 12 192, 203, power to 1025, jurisdiction to statute sentencing 5 46-18-404, in effect 875 P.2d impose authority. 846 P.2d Court's was the their 265 Mont. court 340, it Court State. designation, because revoked declined conditions specific 256 Mont. it jurisdiction Court the a district absence the The State 1994. it designation v. Alexander (1993), in reasons 1994. 1995), District have However, when or its when District continue offender with courts decisions. the to continue We agree District In in the (repealed had imposed that in possess to evidence, state we address Court sentence, it time rule 1994 dangerous substantial on Moorman that argument, his adequately third bar MCA (1981) designation by to we conclude suspended whether sentence the District Moorman's 345, for procedural § 46-l8-404(3), continue severe jurisdictional 2. in 1985, State a v. 1029. to continue MCA (1981) at the time the crime 282, was committed. 587 P.2d At the (1981) 1297, time of 1995), original court could of on the Smith, or dangerous where the the to 221. in A district original defendant a a defen- designation upon sentence was as nondangerous. was silent the a district Arledge substantial Moorman danger was (1988), 232 Mont. "to authority order the person authority to modify the dangerous designation revocations that the and thus to continue his District had jurisdiction, sentence, remained of him the suspended dangerous 13 as 1982, a It of did of his § 46-l8or not Moorman's sentence the dangerous suspension Therefore, a part Here, in 1981 version the the community. committed." Court found sentenced impose have the original upon all sentence. possessed upon a revocation his that not the revoke sentence. the had to under whether We found designated Court, as to nondangerous. originally specifically the or court and We hold at MCA court conditions of sentence subsequent 5 46-18-404, offender as dangerous The District had or judgment original court MCA, 281, 1170. when offender. 179 Mont. district Petition 154-55; was sentencing a 915 P.Zd designated at implication however, allow sentence the defendant 203, a was designated by not Finley, 1169, Smith, defendant that issue 756 P.2d (1978), sentencing, add new terms impose 606 P.2d In to a suspended silent initial did sentence. not revocation 450, Moorman's proceeding dant's v. Azure 1298. (repealed revocation See State offender statutory of Moorman's designation authority, suspended imposed in the original court 's sentence. findings prohibited properly order by and the designated denying Substantial evidence conclusions procedural bar as a dangerous Moorman's that supports Moorman's rule, and offender. petition for the that claims are Moorman was The District post-conviction -L//e/. We concur: 14 Justice Court's relief affirmed. Chief District is
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