State v. Osborne, 05-143.

• Decision Date: 14 December 2005
• Docket Number: No. 05-143.,05-143.
• Citation: 124 P.3d 1085,2005 MT 264,329 Mont. 95
• Parties: STATE of Montana, Plaintiff and Respondent, v. Steven Lee OSBORNE, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1085

124 P.3d 1085

2005 MT 264

329 Mont. 95

STATE of Montana, Plaintiff and Respondent, v. Steven Lee OSBORNE, Defendant and Appellant.

No. 05-143.

Supreme Court of Montana.

Submitted on Briefs September 7, 2005.

Decided October 25, 2005.

Rehearing Denied December 14, 2005.

For Appellant: Kristina Neal, Assistant Appellate Defender, Helena, Montana.

For Respondent: Mike McGrath, Attorney General; John Paulson, Assistant Attorney General, Helena, Montana, Robert J. Long, County Attorney, Polson, Montana.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 Steven Lee Osborne (Osborne) was convicted of felony driving under the influence (DUI). Pursuant to a plea agreement, the court designated Osborne as a persistent felony offender and sentenced him to ten years in prison, five of which were suspended.

¶ 2 Osborne filed a petition for postconviction relief, asserting that the court exceeded its sentencing authority. The District Court denied his petition. Osborne now appeals. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 On July 30, 2003, the State charged Osborne with felony DUI. Osborne had previously been convicted of DUI four times, the most recent of which had resulted in Osborne's being convicted of felony DUI in 1999. Consequently, the State filed a notice seeking to have Osborne declared a persistent felony offender pursuant to § 46-18-501, MCA. When he subsequently pled guilty to the charge of felony DUI, Osborne was aware of the State's intention to seek persistent felony offender status. The court declared Osborne a persistent felony offender and sentenced him to ten years in prison, with five years suspended.

¶ 4 Osborne did not appeal this judgment and sentence. On January 5, 2005, however, Osborne filed a petition for postconviction relief. His petition argues that, pursuant to § 61-8-731, MCA (2003), the court lacked authority to sentence him concomitantly on a charge of felony DUI and as a persistent felony offender. Osborne's petition contends that the 2001 amendment of the DUI sentencing statute prohibits the court from imposing a sentence of more than five years for felony DUI, and requires that all but thirteen months of the sentence be suspended. The District Court sentenced Osborne to ten years, and suspended only five years of his sentence. Therefore, Osborne's petition contends, the District Court exceeded its statutory authority when it sentenced him to ten years in prison, with five years suspended.

¶ 5 The State argues that the persistent felony offender statute, §§ 46-18-501 and -502, MCA (2003), includes felony DUI among the felonies to which it applies. The State notes that this Court held in 2001 that the persistent felony offender statute applied to persons convicted of felony DUI. State v. Yorek, 2002 MT 74, 309 Mont. 238, 45 P.3d 872. The State observes that the persistent felony offender statute has remained unchanged since our decision in Yorek. Accordingly, the State argues, Osborne's sentence was authorized by § 46-18-502, MCA (2003).

¶ 6 The District Court dismissed Osborne's petition for postconviction relief, concluding that the petition failed to state a claim on which relief could be granted. The District Court's proffered rationale was that the felony DUI statute had not been amended since Yorek was decided in 2002 and Yorek controlled the disposition of Osborne's petition.

¶ 7 Osborne now appeals the District Court's dismissal of his petition. He claims that the court failed to recognize that this Court's decision in Yorek applied the pre-amendment version of § 61-8-731, MCA (1999). The State counters that the District Court correctly dismissed Osborne's petition because our holding in Yorek was premised on the authority bestowed upon the sentencing court by § 46-18-502, MCA, which is unaffected by the limits included in the felony DUI sentencing provision. The State also suggests that Osborne's petition raises claims that could have been raised on direct appeal. Accordingly, the State argues that Osborne's petition is procedurally barred pursuant to § 46-21-105(2), MCA.

STANDARD OF REVIEW

¶ 8 We review 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 conclusions of law are correct. State v. Root, 2003 MT 28, ¶ 7, 314 Mont. 186, ¶ 7, 64 P.3d 1035, ¶ 7 (citation omitted).

DISCUSSION

¶ 9 Did the District Court err in dismissing Osborne's petition for postconviction relief?

¶ 10 In addition to contesting the merits of Osborne's petition, the State argues that, pursuant to § 46-21-105(2), MCA (2003), this Court is procedurally barred from considering the petition because it challenges the legality of his sentence and this is an issue that could have been raised on direct appeal. Osborne counters that because the State failed to argue this procedural bar before the District Court, it has waived this argument on appeal.

¶ 11 Generally, we will not address issues raised for the first time on appeal. State v. Baker (1995), 272 Mont. 273, 280, 901 P.2d 54, 58 (citing Rule 2(a), M.R.App.P.) (other citations omitted). Nevertheless, this rule does not preclude consideration of a jurisdictional issue that is raised for the first time on appeal. State v. Abe, 2001 MT 260, ¶ 14, 307 Mont. 233, ¶ 14, 37 P.3d 77, ¶ 14; see also Rule 12(h)(3), M.R.Civ.P. ("[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action").

¶ 12 Jurisdiction is conferred on the courts only by the Constitution or statutes adopted pursuant to the Constitution. State ex rel. Johnson v. Dist. Ct. (1966), 147 Mont. 263, 266, 410 P.2d 933, 935. "Jurisdiction as applied to courts is the power or capacity given by law to a court to entertain, hear and determine the particular case or matter." Johnson, 147 Mont. at 267-68, 410 P.2d at 935 (quoting State ex rel. Bennett v. Bonner (1950), 123 Mont. 414, 214 P.2d 747, 753) (emphasis in original); accord Peña v. State, 2004 MT 293, ¶ 35, 323 Mont. 347, ¶ 35, 100 P.3d 154, ¶ 35. In Johnson, we held that a district court lacked jurisdiction to compel a county to pay an attorney the court had appointed to represent an indigent defendant in justice court. We concluded that the court lacked jurisdiction because neither the state constitution nor statutory law required or allowed a district court to appoint an attorney under such circumstances or to impose a remuneratory obligation on the county. Johnson, 147 Mont. at 268, 410 P.2d at 936.

¶ 13 In Peña, we reasoned that postconviction relief is a "special proceeding" that is governed by the Rules of Civil Procedure only to the extent that those rules are not inconsistent with the procedural provisions of the postconviction relief statute. Peña, ¶ 32. Moreover, we observed that postconviction relief is not a constitutional right; rather, it is statutorily created. Peña, ¶ 35. Accordingly, we determined that "the statutory rules which circumscribe the postconviction process are jurisdictional in nature." Peña, ¶ 35 (dicta as applied to the procedural bar of § 46-21-105(2), MCA). We held that the State, by failing to raise the jurisdictional argument before the district court, had not waived its argument that Peña had exceeded the statutory time limit, pursuant to § 46-21-102, MCA, for filing his petition for postconviction relief. Peña, ¶ 35; accord Abe, ¶ 16.

¶ 14 The statutory scheme that establishes the postconviction relief procedures provides that a person who has been adjudged guilty, "who has no adequate remedy of appeal and who claims that a sentence was . . . in excess of the maximum authorized by law . . . may petition the court that imposed the sentence to vacate, set aside, or correct the sentence[.]" Section 46-21-101(1), MCA (2003) (emphasis added). Several other provisions, however, limit the ability of a person to petition the court for postconviction relief and limit the court's capacity to entertain such petitions:

When a petitioner has been afforded the opportunity for a direct appeal of the petitioner's conviction, grounds for relief that were or could reasonably have been raised on direct appeal may not be raised, considered or decided in a proceeding brought under this chapter.

Section 46-21-105(2), MCA (2003) (emphasis added). The plain language of these provisions establishes that the courts lack any authority to consider (hear and entertain) or decide (determine) legal and factual issues that could reasonably have been raised on direct appeal if an adequate remedy of appeal was available to the petitioner. The italicized language was added to § 46-21-105(2), MCA, in 1997 by Senate Bill 216, the preamble to which eliminates any doubt whether this language was meant to proscribe the courts' authority:

WHEREAS, it is the public policy of the State of Montana to provide persons accused of crimes with a fair and speedy trial and direct appellate review of legal issues fairly presented to the trial court; and

WHEREAS, the privilege of the writ of habeas corpus is preserved by Article II, section 19, of the Montana Constitution; and

. . .

WHEREAS, there is no federal constitutional right to a specific statutorily prescribed postconviction procedure; and

. . .

WHEREAS, amendments to Montana's postconviction relief and death penalty statutes will further the goal of finality by codifying certain interpretations of those statutes by the Montana Supreme Court and clarifying legislative intent with respect to other provisions.

THEREFORE, it is the policy of the State of Montana to prescribe and limit, consistent with constitutional safeguards of the criminal justice process, the authority of an appellate or other reviewing court to consider legal and factual issues determined by the trial or sentencing court.

1997 Mont. Laws Ch. 302, Sec. 3 (Preamble...