Jordan v. State

• Decision Date: 06 October 2008
• Docket Number: No. DA 07-0704.,DA 07-0704.
• Parties: Jeffrey Scott JORDAN, Petitioner and Appellant, v. STATE of Montana, Respondent and Appellee.
• Court: Montana Supreme Court

194 P.3d 657

2008 MT 334

Jeffrey Scott JORDAN, Petitioner and Appellant, v. STATE of Montana, Respondent and Appellee.

No. DA 07-0704.

Supreme Court of Montana.

Submitted on Briefs August 27, 2008.

Decided October 6, 2008.

For Appellant: Jeremy S. Yellin, Attorney at Law, Havre, Montana.

For Appellee: Hon. Mike McGrath, Montana Attorney General, Sheri K. Sprigg, Assistant Attorney General, Helena, Montana, Thomas P. Meissner, Fergus County Attorney, Lewistown, Montana.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Jeffrey Jordan (Jordan) was sentenced by the Tenth Judicial District Court to two twelve-year sentences to run consecutively, after pleading guilty to two counts of felony sexual assault. Upon review, the Sentence Review Division (SRD) increased his sentences to two consecutive twenty-year sentences, with eight years suspended. Jordan sought postconviction relief (PCR) from the amended sentence in District Court. The District Court dismissed his claim for PCR on the ground that it did not have jurisdiction to review a sentence issued by SRD. Jordan appeals. We affirm.

ISSUES

¶ 2 The issues on appeal are:

¶ 3 Did the District Court err when it concluded that Jordan was precluded from seeking postconviction relief in a district court from the Sentence Review Division's decision?

¶ 4 Did the District Court err when it noted that the Sentence Review Division's reasoning was satisfactory?

¶ 5 Because we conclude the first issue is dispositive, we decline to address the second issue.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 6 In July 2004, Judge Nels Swandal of the Tenth Judicial District Court sentenced Jordan to two consecutive twelve-year sentences for two counts of felony sexual assault. The sentence also required Jordan to successfully complete both Phase I and Phase II of the sexual offender treatment program at Montana State Prison before being eligible for parole. The District Court, however, included in Jordan's sentence the opportunity for him to seek reconsideration of this requirement if he was enrolled in Phase II of the treatment program and was complying with the program but had not completed it at the time he was parole eligible.

¶ 7 In March 2005, Jordan applied for sentence review by the Sentence Review Division. On March 31, 2005, the SRD increased his sentence to two consecutive twenty-year sentences with eight years suspended. The amended sentence also eliminated Jordan's opportunity to seek redress of his obligation to complete Phase II of sex offender treatment prior to parole eligibility.

¶ 8 Subsequently, Jordan filed two pro se petitions for postconviction relief in District Court challenging his amended sentence. Judge Phillips of the Tenth Judicial District Court dismissed both petitions on procedural grounds. Jordan appealed. In Jordan v. State, 2007 MT 165, 338 Mont. 113, 162 P.3d 863 (Jordan I), we noted that Judge Phillips had originally presided over Jordan's case but had been substituted by Judge Swandal early in the proceeding. Because it was Judge Swandal's sentence that Jordan appealed to the SRD, we concluded that "substitution of a trial court judge does not evaporate suddenly in a subsequent post conviction proceeding that involves the same parties, the same witnesses, and the same factual background as the underlying case from which the judge already has been removed." Jordan I, ¶ 13. We therefore reversed and remanded the case to District Court for Judge Swandal's consideration of Jordan's petition for PCR. Jordan I, ¶ 14.

¶ 9 Judge Swandal dismissed Jordan's PCR claim on the ground that district courts cannot review a judgment of the SRD and that Jordan's only recourse was a writ of extraordinary relief before the Montana Supreme Court. The court also stated that SRD's reasoning in its amended judgment was sufficient to satisfy the applicable statutory requirements. Jordan appeals, arguing that the District Court erred when it: (1) concluded that Jordan was precluded from seeking postconviction relief in district court from an SRD's decision, and (2) opined that SRD's reasoning was satisfactory.

STANDARD OF REVIEW

¶ 10 We review the grant or denial of a petition for postconviction relief to determine whether the court's findings of fact are clearly erroneous and whether its conclusions of law are correct. Jordan I, ¶ 5.

DISCUSSION

¶ 11 Did the District Court err when it concluded that Jordan was precluded from seeking postconviction relief in a district court from the Sentence Review Division's decision?

¶ 12 Jordan argues that the relevant statutes, §§ 46-21-101 and 46-18-904, MCA, permit him to seek PCR in district court; therefore, Judge Swandal erred when he denied Jordan's petition for lack of jurisdiction. Jordan cites § 46-21-101(1), MCA, for authority to seek postconviction relief in district court.

A person adjudged guilty of an offense in a court of record who has no adequate remedy of appeal and who claims that a sentence was imposed in violation of the constitution or the laws of this state or the constitution of the United States, that the court was without jurisdiction to impose the sentence, that a suspended or deferred sentence was improperly revoked, or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack upon any ground of alleged error available under a writ of habeas corpus, writ of coram nobis, or other common law or statutory remedy may petition the court that imposed the sentence to vacate, set aside, or correct the sentence or revocation order. (Emphasis added.)¹

He also relies on § 46-18-904(3), MCA, which provides in part:

The sentence imposed by the district court is presumed correct. If the review division orders a different sentence, the court sitting in any convenient county shall resentence the person as ordered by the review division.

¶ 13 Jordan maintains that when SRD returns a case to district court after rendering its re-sentencing decision, it is the district court that "imposes" the SRD's sentence. As such, under § 46-21-101(1), MCA, he argues he may seek review of that "imposed" sentence in the district court.

¶ 14 Jordan also asserts that State v. Torres, 277 Mont. 514, 922 P.2d 1180 (1996), overruled in part by Ranta v. State, 1998 MT 95, 288 Mont. 391, 958 P.2d 670, does not preclude the filing of a petition for PCR in district court; rather, it simply states that a PCR petition may no longer be filed in the Montana Supreme Court. He opines that if "Torres meant what the District Court concluded, Torres would be in direct conflict with § 46-21-101, M.C.A."² Therefore, to harmonize Torres with § 46-21-101, MCA, he maintains we must hold that a petitioner may seek redress of an SRD sentence in the district court that imposed the sentence or by filing a writ of extraordinary relief with the Montana Supreme Court.

¶ 15 Relying on Ranta, the State counters that the Montana Supreme Court is authorized to review a sentence of SRD but the district courts are not. In Ranta, after being sentenced in district court, Ranta applied for sentence review before SRD. SRD affirmed the district court sentences. Challenging SRD's ruling, Ranta filed a petition for postconviction relief with this Court. We stated that the 1997 legislative revision to § 46-21-101(1), MCA, eliminated the opportunity for a petitioner seeking PCR to file his or her petition directly with this Court. Ranta, ¶ 11. As a result, we accepted Ranta's petition for postconviction relief as a petition for extraordinary relief pursuant to M.R.App. P. 17 (Rule 17).³ We also stated that to the extent Torres, decided in 1996, holds that filing a petition for PCR may be done with this Court, Torres is no longer controlling. Notably, however, we did not address in Ranta whether the district courts have jurisdiction to review an SRD sentence upon the filing of a PCR petition.

¶ 16 The State points out that Montana's law creating the Sentence Review Division was adopted from Connecticut's, i.e., Conn. Gen.Stat. § 51-195, thus making Connecticut's interpretations persuasive. It cites State v. Nardini, 187 Conn. 109, 445 A.2d 304, 313-14 (1982) for the proposition that a trial court may impose SRD's modified sentence but it has no appellate authority and therefore is not authorized to review the action of SRD. The State maintains that after the Montana Legislature revised the SRD statute in 1997 to preclude filing PCR petitions with the Montana Supreme Court, the exclusive method remaining for challenging actions by the Sentence Review Board was the filing of a petition for extraordinary relief with the Montana Supreme Court.

¶ 17 In its Order denying Jordan's petition for PCR, the District Court relied on Ranta and concluded that this Court has the exclusive authority to review sentences issued by SRD.

¶ 18 Some historical analysis is necessary. In 1967, the Legislature enacted §§ 95-2501-2504, R.C.M.1947, currently codified at §§ 46-18-901-905, MCA, creating the Sentence Review Division. The SRD was created to provide appellate review of legal sentences challenged by the recipient as being unjust or inequitable. State v. Simtob, 154 Mont. 286, 288, 462 P.2d 873, 874 (1969). Before the Sentence Review Division was created, we reviewed criminal sentences for both legality and equitability. See State v. Brooks, 150 Mont. 399, 412, 436 P.2d 91, 98 (1967) (reviewing a claim that a 40-year sentence was unduly harsh and unreasonable). After its creation, SRD was charged with determining the appropriateness of criminal sentences with respect to the individual offender and a particular offense. State v. McKenzie, 186 Mont. 481, 519, 608 P.2d 428, 450 (1980) (overruled in part on other grounds by State v. Van Kirk, 2001 MT 184, 306 Mont. 215, 32 P.3d 735). For example questions of equitability, such as length of sentence or proportionality to the crime, fall under the purview of SRD. ...