State v. Osborne

MONTANA, OF STATE Respondent, Plaintiff and OSBORNE, LEE STEVEN Appellant. Defendant No. 05-143. September 2005. Briefs Submitted on 25, 2005. Decided October Rehearing Denied December 2005 MT 264. 124 P.3d 1085. Neal, Defender,

For Appellant: Appellate Kristina Assistant Helena. Respondent: McGrath, General;

For Attorney Honorable Mike Paulson, General, Attorney Helena; Long, John Assistant J. Robert County Attorney, Poison.

JUSTICE LEAPHART Opinion delivered the of the Court. (Osborne) felony driving Steven Lee Osborne was convicted of ¶1 (DUI). agreement, under the influence Pursuant to a plea the court designated a persistent felony Osborne as offender and sentenced him years in prison, suspended. to ten five of which were relief, petition asserting Osborne filed a ¶2 sentencing authority. the court exceeded its The District Court denied affirm. petition. appeals. Osborne now We FACTUAL AND PROCEDURAL BACKGROUND July charged felony On the State Osborne with DUI. ¶3 times, previously Osborne had been convicted of DUI four the most being felony recent of which had resulted in Osborne’s convicted of Consequently, seeking DUI in 1999. the State filed a notice to have 46-18-501, felony Osborne declared a offender persistent pursuant DUI, subsequently pled guilty charge felony MCA. When he felony persistent Osborne was aware of the State’s intention to seek felony persistent offender status. The court declared Osborne a years years and him ten in prison, offender sentenced with five suspended. appeal judgment January Osborne did not and sentence. On

¶4 5,2005, however, Osborne filed a relief. His petition that, 61-8-731, (2003), petition argues MCA the court concomitantly charge felony lacked to sentence him on a persistent felony petition DUI and as a offender. Osborne’s contends sentencing prohibits that the 2001 amendment of the DUI statute DUI, years felony a sentence ofmore than five imposing court from the sentence be months of that all but thirteen requires years, to ten Court sentenced Osborne The District suspended. Therefore, Osborne’s ofhis sentence. only years five suspended it statutory authority when exceeded its contends, the District Court suspended. years with five years prison, to ten in sentenced him statute, offender felony §§ argues persistent The State ¶5 felony among DUI -502, includes MCA 46-18-501 that this Court held The State notes applies. felonies to which applied persons felony offender statute persistent 2001 that the 238, 45 Yorek, MT felony DUI. State convicted felony offender statute persistent that the P.3d 872. The State observes Accordingly, the unchanged our decision in Yorek. remained since sentence was authorized argues, Osborne’s State (2003). The District Court dismissed failed to state a claim on which

relief, concluding rationale was proffered The District Court’s granted. relief could be had not been amended since Yorek felony DUI statute disposition of Osborne’s in 2002 and Yorek controlled decided petition. petition. dismissal ofhis appeals the District Court’s Osborne now decision recognize the court failed to this Court’s

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

STANDARD postconviction court’s denial of a review a district We ¶8 fact are findings court’s whether the district relief to determine State oflaw are correct. its conclusions clearly erroneous whether (citation 7, 314 64 P.3d Root, ¶ Mont. ¶ v. 2003 MT ¶ omitted).

DISCUSSION dismissing Osborne’s err in Did the District Court ¶9 relief? postconviction contesting In addition to the merits of petition,

¶10 that, (2003), argues State this Court procedurally considering barred from because it challenges legality of his sentence and this is an issue that could appeal. been raised on direct Osborne counters that because the Court, argue State failed to bar before the District it argument appeal. has waived this Generally, we not will address issues raised for the first time on ¶11 (1995), appeal. 273, 280, State v. Baker 272 Mont. 901 P.2d (other omitted). 2(a), (citing Nevertheless, Rule M.R.App.P.) citations preclude this rule does not consideration of a issue that Abe, 260, 14, is raised for the first time on State v. 2001 MT ¶ 233, 14, 37 77, 14; 12(h)(3), 307 Mont. (“[w]henever P.3d see also Rule M.R.Civ.P. ¶ appears by suggestion parties of the or otherwise matter, jurisdiction subject the court lacks of the the court shall action”). dismiss the only Jurisdiction is conferred on the courts Constitution or adopted pursuant

statutes to the Constitution. State ex rel. Johnson (1966), Dist. Ct. 147 Mont. 410 P.2d 935. “Jurisdiction applied power capacity given by as to courtsTs the or law to a court to entertain, Johnson, particular hear and determine the case or matter.” 267-68, P.2d (quoting 147 Mont. at at 935 State ex rel. Bennett v. 753) (emphasis Bonner Peña, 293, 35, 323 original); accord State v. 2004 MT Johnson, 35. In we held that a district court lacked jurisdiction county an compel pay attorney the court had represent justice an defendant in appointed indigent court. We concluded that the court lacked neither the state because required constitution nor law or allowed a district court to appoint attorney impose an under such circumstances or to Johnson, remuneratory obligation county. Mont. at P.2d at 936. Peña, “special In we reasoned that relief is a

proceeding” governed by only that is the Rules ofCivil Procedure extent those rules are not inconsistent with Moreover, relief we provisions of statute. rather, right; relief is not a constitutional observed Peña, statutorily Accordingly, it is created. we determined postconviction process the are statutory “the rales which circumscribe (dicta Peña, applied in nature.” as to the MCA). 46-21-105(2), State, by failing the to raise bar of We held that court, had not jurisdictional argument the before the district waived limit, time the had exceeded that Peña argument its postconviction 46-21-102, MCA, filing to Abe, 35; accord relief. relief statutory scheme that establishes The “who adjudged guilty, a who has been person

procedures provides that a sentence was and who claims remedy appeal adequate has no authorized law ... the maximum ... in excess of vacate, aside, set or correct the sentence to imposed court that added). (2003) 46-21-101(1), (emphasis MCA Section sentence[.]” however, ability person limit the of a provisions, Several other capacity limit the court’s relief and the court for petitions: to entertain such for a direct opportunity afforded the petitioner been

When conviction, for relief that were appeal petitioner’s of the may not be appeal raised on direct reasonably have been or could considered, brought under this raised, proceeding decided in a or chapter. added). (2003) plain The (emphasis

Section any lack the courts provisions of these establishes language (determine) entertain) (hear legal or decide and authority to consider raised on direct reasonably that could been and factual issues petitioner. remedy appeal was available appeal adequate if an 46-21-105(2), MCA, in 1997 added to language The italicized was any doubt whether preamble Bill to which eliminates Senate authority: proscribe meant to the courts’ language WHEREAS, of the State of Montana public policy it is the and speedy a fair and trial accused of crimes with provide persons fairly to the trial legal presented review of issues appellate direct court; and

WHEREAS, corpus preserved privilege ofthe writ ofhabeas Constitution; and II, of the Montana by Article section right specific WHEREAS, there is no constitutional federal and procedure; statutorily prescribed postconviction relief WHEREAS, Montana’s amendments to finality by codifying goal will further penalty death statutes Supreme Montana statutes ofthose interpretations certain other respect with legislative intent clarifying provisions. prescribe Montana to

THEREFORE, the State policy it is safeguards of the limit, with constitutional consistent justice process, authority criminal an appellate or other of reviewing legal court to consider issues determined factual sentencing the trial or court. (Preamble) added). 1997 Mont. Ch. (emphasis Laws Sec. 3 Thus the legislature statutory language intended the as a limit on the decide, courts’ to hear and in the context of postconviction were, been, proceedings, issues that or could have raised on direct appeal. there is no other source granting Because of law courts jurisdiction issues, 46-21-105(2),MCA,effectivelyprohibits over such § exercising jurisdiction grounds

the courts from over for relief that reasonably appeal. could have been raised on subject Lack jurisdiction matter cannot be waived. In re 424, 427, Marriage Miller 259 Mont. 1380. subject a court that exception, jurisdiction Without lacks matter case, not hear or decide a but must dismiss it once its lack of Miller, jurisdiction is raised. 259 Mont. at 856 P.2d at 1380. Although permitted this Court has relief petitioners to raise issues that could have been raised on direct we have only petitioner remedy done so lacked an adequate appeal. when See, Hans, e.g., Petition 1998 MT 288 Mont. (allowing petitioner P.2d to raise issues that could have appeal petitioner been raised on direct when the was denied the or) of, (adequate remedy opportunity to he appeal because was during Obviously, abandoned counsel course of if appeal).1 remedy adequate appeal petitioner, no were available to the then no Thus, reasonably for relief could have been raised on limit exception Hans does not establish an 46-21-105(2), MCA, exceptions embodied and no such exist. § previous holdings concerning Our of 46-21- application § 105(2), MCA, are of that interpretation provision consistent with our subject jurisdiction as a limit on the matter of the courts. In Sanders State, 2004 MT we affirmed the petition court’s dismissal of Sanders’s relief district here, 46-21-105(2), argue the State failed to pursuant to MCA.As § 46-21-105(2), MCA, procedurally the district court that barred § Nevertheless, Sanders, the court dismissed petition. Sanders’s 7-8. ¶¶ bar, the court raised procedural on the basis of the which 46-21-105(2), MCA, that existed Hans was decided to the version of amendments, language provision prior that render the to the 1997 which added the in nature. dismissal, court’s we Sanders, By affirming the district sponte. sua 8.¶ procedural does not waive the acknowledged that the State implicitly implicitly the district court. We by failing to raise it before bar Rule jurisdictional in nature. See recognized that bar is (“[wlhenever suggestion of the 12(h)(3), appears by M.R.Civ.P. subject on the lacks parties or otherwise action”). Basto, Similarly, in State v. matter, the court shall dismiss the 80, 97 1113, the court had denied 2004 MT P.3d district Basto, its The State relief on merits. argued time on apparently appeal first Basto, MCA, required petition. the Court dismiss the Notwithstanding failure to raise the before the State’s bar court, held that the barred 46-21- district we 105(2), Basto, again By holding, implicitly MCA. 15. so we ¶ jurisdictional is that the acknowledged procedural bar and the procedural failing State not waive the bar to raise it before does district court. 46-21-105(2), MCA, find represents We that

¶17 petitions limit ability on courts’ entertain and decide Accordingly, may relief. the State raise this for the issue first appeal. time on Unfortunately, inexplicably the State failed to raise this

¶18 procedural bar before the District Court. We do not condone the State’s litigation the strategy. petitions Should State choose to contest on the courts, reserving the for its procedural merits before district the bar arguments unnecessarily on courts will rule on the merits of petitions independently or be forced to assess their over in the petition. Asking appellate each of the issues raised an court procedural grounds after the trial court dismiss on inefficiency. judicial the is epitome addressed merits Nevertheless, “Q]urisdiction-the an right hear determine considerations and involves issue-transcends v. Corban power authority fundamental court itself.” Corban (1972), 161 Mont. may is and we address The bar

¶19 procedurally that Osborne’s is barred argument State’s appeal. that have been raised on direct because it raises issues could Osborne could have we must determine whether Consequently, him as a challenged the District Court’s to sentence felony persistent appeal. offender on direct acknowledges object he did to his sentence Osborne not

¶20 Nevertheless, by the he when it was announced court. contends 102

this Court may review his sentence to determine it whether is statutorily permissible. may This Court review a sentence to determine illegal mandates, whether is or exceeds statutory despite fact objected sentence not the trial to at State v. level. (1979), 997, 1000. Lenhian 184 review Such appeal. Lenihan, permitted 339, 343, 602 direct 184 Mont. at P.2d 1000; (1993), at State v. 256 Mont. P.2d Hatfield Here, statutory Osborne contends that the court exceeded the mandate of MCA when it sentenced him as a persistent felony challenge offender. legality Osborne’s Accordingly, sentence could been raised on direct this Court not consider his argument proceeding this (2003). postconviction relief. Section “We have consistently applied prevent bar in order to abuse of post-conviction relief criminal defendants who would substitute (internal Basto, proceedings appeal.” those for direct quotations omitted). and citation We do so again. We will not reverse the Court District when it reaches the result,

right wrong Veis, even if for the State v. MT reason. 16; P.2d see also (affirming a petition dismissal of relief on court). Accordingly, than other those relied the district we err in dismissing conclude the District did not relief. We affirm. GRAY, COTTER, CHIEF JUSTICE JUSTICES NELSON RICE concur.

ORDER There a being grant petition rehearing, insufficient votes to for IT IS HEREBY ORDERED rehearing for is denied. day December,

DATED of this 13th CHIEF JUSTICE GRAYand JUSTICE RICE concur. JUSTICE dissenting. LEAPHART a petitioned rehearing Osborne has this Court for on the conflict express controlling “the in with decision is an statute or 34, Rule decision which the attention of the court was not directed.” M.R.App.P. suggests that v. United Osborne Eberhart States _U.S._, 2005 126 S.Ct. WL issued the Court six Osborne, after State v. MT days we decided 2005 reconsideration this Court’s requires conclusion 46-21-105(2),MCA,represents ability a limit on courts’

102A in for petitions and decide issues raised to entertain Eberhart, Circuit’s Court Seventh relief. In reversed Rules of Criminal 33 of the Federal determination Rule a must file the time within which defendant Procedure-a limitation on jurisdiction to entertain a a new trial-removes court’s motion for Eberhart, 126 S.Ct. the allotted timeframe. motions not filed within a the “critical difference between rule at The Court reiterated an inflexible subject-matter governing Eberhart, (quoting rule.” S.Ct. at 403 Kontrick claim-processing 867). Ryan (2004), 540 124 S.Ct. 157 L.Ed.2d v. U.S. delineating the explicitly distinguished “prescriptions The Court authority,” . a falling adjudicatory classes cases . . within court’s rules,” “claim-processing from mere and held courts should not Eberhart, at jurisdictional. the latter to 126 S.Ct. consider be (citation omitted). I, Court, Although on of the behalf authored Court, although on I find Osborne, binding Eberhart is not its would reasoning persuasive, grant case. rehearing in this limitation a Osborne

Although Eberhart addressed time while statutory ability premised addressed a bar one’s have a I previously raised claim on direct consider this to be a bar significance. precludes distinction without The one from a claim claim bringing postconviction proceedings in if that effect, In or could have been raised on direct this is no simple time claim different than limitation: the should been (i.e., brought sixty days entry at some earlier time within of the 5(b), judgment, cannot consider M.R.App.P.), Rule so we now it. Furthermore, State, Peña Osborne relies on MT wherein this Court concluded that § filing MCA-the time limitation Peña, I jurisdictional. relief-is In noted that the time 46-21-102, MCA, a statute properly bar construed as Court limitations rather than a limit because this Peña, J., imposed exceptions (Leaphart, to the time bar. 41¶ Thus, interpret I statute in dissenting). advocated that we our interpretation filing the federal of the time limit accordance with J., corpus. (Leaphart, petitions for a writ of habeas ¶ (9th 1997), (citing v. U.S. Cir. dissenting) Calderon Dist. 1288-89). new F.3d Eberhart casts doubt Peña’s statute-an interpretation provision of a of Montana’s deciding Osborne. interpretation acquiesced this Court which an taxonomy certainly render 46-21-102 The Court’s would Supreme 102B “claim-processing

inflexible rule” rather a “prescription than delineating the classes of falling [this Court’s] cases within Eberhart, adjudicatory authority.” “Nothing 126 S.Ct. at 405. in the of phraseology” “requires necessarily suggests 46-21-102 or that its go of commands (9th the court.” United States v. Doe 2004), 1069, Cir. 366 F.3d a (discussing federal (“a provision); 46-21-102, any may §see . . . be filed at final”). year time within of the date that the conviction becomes MCA, Having previously decided that a represented bar, it would have been for this Court anomalous to hold 46-21-105(2) in Osborne that not such a represent light does bar. In value, precedential however, ofPena’s dubious the outcome in Osborne becomes at problematic, best. 46-21-105(2) proscribe

Section not class a does of cases in Rather, substantive of sense. the class claims that is procedurally timing barred is based on the of had the claim: the claim brought days entry been within 60 judgment, of it would not someday have been Perhaps barred. this will tread more carefully may [courts led] around the into which be “morass loose 685, jurisdiction.” talk City about Yonkers v. U.S. 320 U.S. J., (Frankfurter, By 64 S.Ct. dissenting). L.Ed. way illustration, simply ascertaining whether certain claims could appeal requires been raised on direct to make complicated, discretionary example, determinations. For ineffective brought assistance of counsel claims based facts ofrecord be direct claims are appropriate whereas non-record based postconviction proceedings. Hagen State, 1999 MT ¶ 12. We deem a claim record based if fully explains why particular record counsel took the course of White, action. State v. 2001 MT delineation record 20. The between based and non-record based Moreover, judicial

claims is a creation. determination whether fully explains why the record took a course of particular counsel action requires inappropriate the court exercise some discretion. It is leeway jurisdiction. such in defining Court to have broad its own I

Accordingly, dissent. JUSTICE NELSON concurs in the dissent of JUSTICE LEAPHART. COTTER

JUSTICE concurs the dissent JUSTICE LEAPHART.

Case Details

Case Name: State v. Osborne

Court Name: Montana Supreme Court

Date Published: Oct 25, 2005

Citation: 124 P.3d 1085

Docket Number: 05-143

Court Abbreviation: Mont.