State v. Moorman

• Decision Date: 02 January 1997
• Docket Number: No. 96-051,96-051
• Citation: 279 Mont. 330,928 P.2d 145
• Parties: STATE of Montana, Plaintiff and Respondent, v. Martin C. MOORMAN, Defendant and Appellant.
• Court: Montana Supreme Court

Page 145

928 P.2d 145

279 Mont. 330

STATE of Montana, Plaintiff and Respondent, v. Martin C. MOORMAN, Defendant and Appellant.

No. 96-051.

Supreme Court of Montana.

Submitted on Briefs Sept. 26, 1996.

Decided Nov. 21, 1996.

Rehearing Denied Jan. 2, 1997.

Jeffrey T. Renz, Montana Defender Project, Missoula, for Defendant and Appellant.

Joseph P. Mazurek, Attorney General, Patricia Jordan, Assistant Attorney General, Helena, Deborah Kim Christopher, County Attorney, Polson, for Plaintiff and Respondent.

TURNAGE, Chief Justice.

Martin Moorman was convicted and sentenced by the Twentieth Judicial District Court, Lake County, for robbery and was designated a dangerous offender. Moorman contested his dangerous offender designation in a petition for post-conviction relief, which the District Court denied. Moorman appeals the denial of his petition for post-conviction relief. We affirm.

The following dispositive issues are raised on appeal:

1. Did the District Court properly apply the procedural bar rule ofs 46-21-105(2), MCA, to dismiss Moorman's petition for post-conviction relief?

2. Did the District Court possess jurisdiction pursuant to § 46-18-404(3), MCA (1981) (repealed 1995), upon revocation of Moorman's suspended sentence, to continue his dangerous offender designation which it had imposed in the original sentence?

BACKGROUND

Moorman was convicted of robbery in Lake County on November 10, 1982. He had a previous record of thefts and burglaries as well as drug- and alcohol-related offenses, and a 1977 conviction for assault on a police officer. On November 17, 1982, the District Court sentenced Moorman to a term of twenty years in the Montana State Prison, with fifteen years suspended. The court also designated Moorman a dangerous offender for purposes of parole eligibility.

Moorman was released on parole on September 17, 1985, and was subject to the terms and conditions established by the Montana Department of Institutions. After he failed to make his initial and monthly reports to his parole officer, the State petitioned to revoke his suspended sentence on June 28, 1990. Moorman fled to California and had to be extradited. At a revocation hearing held on December 19, 1990, Moorman admitted to violating the conditions of his suspended sentence. On December 27, 1990, the District Court revoked Moorman's suspended sentence, and sentenced him to serve twenty years in prison, with all but five years and twenty days suspended. The court credited Moorman with five years and twenty days for time already served, and also ordered him to be placed on parole with the same conditions as his original 1982 sentence.

On November 4, 1991, Moorman's parole officer filed a parole violation report stating that Moorman had stopped reporting to the parole office and had moved without obtaining permission. The State petitioned to revoke Moorman's suspended sentence on November 5, 1991. Moorman was extradited from Texas and admitted to the violations. On March 9, 1992, the District Court granted the State's petition and sentenced Moorman to fifteen years at the Montana State Prison, but suspended the sentence on the condition, among others, that he serve ninety days in jail.

In September 1992, Moorman moved to Washington and failed to report to his parole officer. Moorman's parole officer filed a third parole violation report on September 11, 1992. He alleged that Moorman had violated three conditions of his parole because he had failed to report to the parole office since May, had failed to pay restitution, and had failed to obtain chemical dependency counseling. The State again petitioned to revoke Moorman's suspended sentence. Moorman waived extradition from Washington and admitted to the parole violations.

On July 7, 1994, the District Court revoked Moorman's suspended sentence and ordered him to serve fifteen years in the Montana State Prison with no time suspended. The court credited Moorman with 126 days for time already served but ordered that he not receive credit for any other time due to his parole violations. In its judgment and commitment, the court 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 did not appeal the legality of his sentence pursuant to §§ 46-20-101 through -104, MCA. Instead, he petitioned the Sentence Review Division of the Supreme Court of Montana to review his dangerous offender designation pursuant to §§ 46-18-901 through -905, MCA. The Sentence Review Division denied the petition, ruling that the District Court had considered the underlying requirements to impose the dangerous offender designation.

Moorman then petitioned the District Court for relief pursuant to the Montana Post-Conviction Hearing Act contained at §§ 46-21-101 through -203, MCA (1993). He argued: (1) that the District Court engaged in an ex post facto application of § 46-18-404(4), MCA (1993) (repealed 1995); (2) that his dangerous offender designation terminated upon his release in 1985; (3) that the dangerous offender designation imposed in 1994 was not supported by substantial evidence; and (4) that the District Court violated § 46-18-102(3)(b), MCA (1993), when it failed to state its reasons for imposing the most severe sentence. Moorman also claimed that the District Court lacked jurisdiction to designate him a dangerous offender.

The District Court denied Moorman's petition for post-conviction relief, concluding that the issues raised in his petition were procedurally barred by § 46-21-105(2), MCA. The court also found that it had imposed Moorman's dangerous offender designation pursuant to § 46-18-404(3), MCA (1981) (repealed 1995). Therefore, the court found no ex post facto application of § 46-18-404(4), MCA (1993) (repealed 1995). Finally, the court found that the July 7, 1994 judgment and third revocation of Moorman's suspended sentence continued the dangerous offender designation for the reasons contained in the judgment. Moorman appeals from the District Court's denial of his petition for post-conviction relief.

1. Did the District Court properly apply the procedural bar rule of § 46-21-105(2), MCA, to dismiss Moorman's petition for post-conviction relief?

The standard of review for denial of post-conviction relief is whether substantial evidence supports the findings and conclusions of the district court. Walker v. State (1993), 261 Mont. 1, 6, 862 P.2d 1, 4.

Moorman argues that the procedural bar rule contained at § 46-21-105(2), MCA, does not apply to jurisdictional issues, and that an application to the Sentence Review Division should be considered an appeal under § 46-21-105(2), MCA. It is undisputed that Moorman did not file a direct appeal to the Montana Supreme Court challenging his conviction, his dangerous offender designation, or any of his three subsequent sentence revocations.

A. Jurisdictional Issues

Section 46-21-105(2), MCA, states: "When a petitioner has been afforded a direct appeal of the petitioner's conviction, grounds for relief that could reasonably have been raised on direct appeal may not be raised in the original or amended petition." The purpose of this waiver provision is to preserve the integrity of the trial and direct appeal and to prevent abuse of the post-conviction relief process. State v. Gorder (1990), 243 Mont. 333, 335, 792 P.2d 370, 371.

Moorman cites Smith v. State (1980), 186 Mont. 52, 606 P.2d 153, as authority for his argument that the procedural bar rule does not apply to jurisdictional issues. However, the procedural bar rule was not raised by the State nor addressed by this Court in Smith because subsection (2) was not added to § 46-21-105, MCA, until 1981. In Smith we held that, at a revocation hearing, the sentencing judge lacked statutory authority to designate a defendant as dangerous, where the dangerous offender designation had not been made in the original sentence. Smith, 606 P.2d at 155. As the State correctly argues in its brief, Moorman's situation differs from Smith. Unlike the court in Smith, the District Court designated Moorman as a dangerous offender in his original 1982 sentence.

Moorman also cites State v. Akers (1938), 106 Mont. 43, 74 P.2d 1138, in support of his jurisdictional argument. An objection that a court lacks subject matter jurisdiction is never waived and may be raised at any stage of the proceedings. Akers, 106 Mont. 43, 74 P.2d at 1145. "Jurisdiction is the power to hear and determine the particular action or proceeding as well as to make such orders and render such judgment therein as the law authorizes in the class of actions or proceedings to which it belongs." State v. District Court of Eighteenth Judicial Dist. (1966), 147 Mont. 263, 267, 410 P.2d 933, 935.

Montana has not directly answered the issue raised by Moorman. However, other jurisdictions with post-conviction relief statutes similar to Montana's have. In Maxfield v. State (App.1985), 108 Idaho 493, 700 P.2d 115, the defendant petitioned for post-conviction relief. The Court of Appeals of Idaho declined to review several claims, holding that post-conviction relief cannot be used to correct mere errors or irregularities in trial court proceedings which are not jurisdictional and which, at the most, render a judgment merely voidable. Maxfield, 700 P.2d at 121 (citing 39 Am.Jur.2d, HABEAS CORPUS § 30 (1968)). However, the Idaho court explained an exception to the general rule. Post-conviction relief is available "to cure fundamental errors occurring at the trial which affect either the jurisdiction of the court or the validity of the judgment,...