                                           No. 02-552

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2002 MT 324N


THOMAS PHILLIPS,

              Defendant and Appellant,

         v.

STATE OF MONTANA,

              Plaintiff and Respondent.




APPEAL FROM:         District Court of the First Judicial District,
                     In and for the County of Lewis and Clark,
                     The Honorable Dorothy McCarter, Judge presiding.



COUNSEL OF RECORD:

              For Appellant:

                     Thomas Phillips, Shelby, Montana (pro se)

              For Respondent:

                     Mike McGrath, Montana Attorney General, Micheal S. Wellenstein, Assistant
                     Montana Attorney General, Helena, Montana; Leo J. Gallagher, Lewis and
                     Clark County Attorney, Carolyn A. Clemens, Deputy Lewis and Clark County
                     Attorney, Helena, Montana



                                                         Submitted on Briefs: December 5, 2002

                                                                   Decided: December 19, 2002
Filed:


                     __________________________________________
                                       Clerk
Justice James C. Nelson delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent but shall be filed as a

public document with the Clerk of the Supreme Court and shall be reported by case title,

Supreme Court cause number and result to the State Reporter Publishing Company and to

West Group in the quarterly table of noncitable cases issued by this Court.

¶2     Thomas Phillips pled guilty in the District Court for the First Judicial District, Lewis

and Clark County, to felony theft. He was then sentenced to ten years in Montana State

Prison with five years suspended and ordered to pay restitution. Phillips appeals the District

Court's order regarding restitution. We affirm.

¶3     We address the following issues on appeal:

¶4   1. Whether Phillips' claims regarding restitution are time barred by § 46-21-102,
MCA.

¶5    2. Whether Phillips' claims regarding restitution are procedurally barred by § 46-21-
105(2), MCA, because they could have been raised on direct appeal.

                          Factual and Procedural Background

¶6     On October 31, 1996, the State charged Phillips by Information with felony theft in

violation of § 45-6-301(1)(c), MCA, for stealing money and cigarettes from a Mini Mart in

Helena. He was also charged with making false reports to law enforcement officers, a

misdemeanor, in violation of § 45-7-205(1)(a), MCA, for knowingly giving false information

to law enforcement personnel in an attempt to implicate someone else in the theft.


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¶7     Phillips subsequently entered into a plea agreement with the State in which he agreed

to plead guilty to the felony theft charge and, in exchange, the State agreed to dismiss the

charge of making false reports to law enforcement officers. Phillips also agreed to pay

$4,000 in restitution to the victim of the theft.

¶8     On February 12, 1997, Phillips appeared in court with his counsel and pled guilty to

felony theft. The District Court accepted Phillips' guilty plea and granted the State's motion

to dismiss the other charge. The court then sentenced Phillips to ten years in Montana State

Prison with five years suspended based upon a number of conditions including that he pay

restitution. The court entered its written Judgment and Commitment on February 18, 1997.

¶9     Phillips did not appeal his conviction or sentence. On June 12, 2002, Phillips filed a

petition for postconviction relief. In his petition, he claimed that he was denied due process

of law when the District Court failed to follow the procedures set forth in § 46-18-242, MCA,

to determine whether he had the financial resources to pay restitution. He also claimed that

the District Court lacked the statutory authority to order him to pay $4,000 in restitution. The

State opposed Phillips' postconviction petition arguing that the petition was barred by the

one-year time limit set forth in § 46-21-102, MCA, and by § 46-21-105(2), MCA, because

Phillips could have raised his claims regarding his restitution obligation on direct appeal.

¶10    On July 23, 2002, the District Court denied Phillips' petition for postconviction relief

on the grounds that Phillips' claims were procedurally barred because he failed to raise them

on direct appeal and that Phillips' claims were time barred by the five-year time limit set forth

in § 46-21-102, MCA. The District Court also noted that "the claim in the petition makes no

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sense in light of the fact that the restitution order and amount was agreed to by Phillips in the

plea agreement." Phillips appeals.

                                     Standard of Review

¶11    We review a district court's denial of a petition for postconviction relief to determine

whether the court's findings of fact are clearly erroneous and whether the court's conclusions

of law are correct. State v. Hanson, 1999 MT 226, ¶ 9, 296 Mont. 82, ¶ 9, 988 P.2d 299, ¶ 9

(citation omitted).

                                            Issue 1.

¶12    Whether Phillips' claims regarding restitution are time barred by § 46-21-102, MCA.

¶13    The District Court concluded that Phillips' petition for postconviction relief was time

barred by the five-year time limit set forth in § 46-21-102, MCA. We agree that the District

Court reached the right result in concluding that Phillips' petition is time barred, however, we

conclude that the court reached that result using the wrong statutory authority.

¶14    In 1997, the Montana Legislature amended § 46-21-102, MCA, to provide that a

petition for postconviction relief must be filed within one year from the time the conviction

becomes final rather than the five years previously allowed by the statute. See Sec. 4, ch. 378,

L. 1997. Section 46-21-102, MCA, now provides in pertinent part as follows:

               When petition may be filed. (1) Except as provided in subsection (2),
       a petition for the relief referred to in 46-21-101 may be filed at any time within
       1 year of the date that the conviction becomes final. A conviction becomes
       final for purposes of this chapter when:
               (a) the time for appeal to the Montana supreme court expires;
               (b) if an appeal is taken to the Montana supreme court, the time for
       petitioning the United States supreme court for review expires; or

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               (c) if review is sought in the United States supreme court, on the date
       that that court issues its final order in the case. [Emphasis added.]

The one-year time bar applies to those convictions which became final after April 24, 1997,

the effective date of the 1997 amendment to § 46-21-102, MCA, or within one year prior to

April 24, 1997. Morrison v. Mahoney, 2002 MT 21, ¶ 11, 308 Mont. 196, ¶ 11, 41 P.3d 320,

¶ 11. For those postconviction petitioners whose convictions became final within one year

prior to April 24, 1997, § 46-21-102, MCA, allows a one-year grace period for the filing of a

petition running from the April 24, 1997 effective date, or until April 24, 1998. Morrison, ¶

11.

¶15    In Phillips' case, the District Court entered its written Judgment and Commitment on

February 18, 1997. Phillips did not file a direct appeal and his time for filing an appeal

expired on April 21, 1997. Rule 5(b), M.R.App.P. Under, § 46-21-102(1), MCA, Phillips

had until April 24, 1998, to file his petition for postconviction relief. Phillips, however, did

not file his petition until June 12, 2002.

¶16    We have previously stated that the time period for filing a claim for postconviction

relief under § 46-21-102(1), MCA, is a jurisdictional limit on litigation and waiver is justified

only by a clear miscarriage of justice. State v. Abe, 2001 MT 260, ¶ 15, 307 Mont. 233, ¶ 15,

37 P.3d 77, ¶ 15 (citations omitted). The miscarriage of justice exception does not apply

unless the defendant provides newly-discovered evidence that shows that the defendant is

actually innocent. State v. Rosales, 2000 MT 89, ¶ 7, 299 Mont. 226, ¶ 7, 999 P.2d 313, ¶ 7

(citations omitted).


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¶17    Here, Phillips has not claimed that he is actually innocent of felony theft. In fact, he

pled guilty to the offense of felony theft and he is not now challenging his conviction. In his

petition, Phillips merely challenges the imposition of restitution by the District Court.

¶18    Accordingly, we hold that Phillips' petition for postconviction relief is time barred by

the one-year time limit set forth in § 46-21-102(1), MCA.

                                           Issue 2.

¶19 Whether Phillips' claims regarding restitution are procedurally barred by § 46-21-
105(2), MCA, because they could have been raised on direct appeal.

¶20    The District Court concluded that Phillips' claims regarding restitution are

procedurally barred by § 46-21-105(2), MCA, because he failed to raise those claims on

direct appeal. We agree.

¶21    Section 46-21-105(2), MCA, provides in pertinent part as follows:

              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. Ineffectiveness or incompetence of

       counsel in proceedings on an original or an amended original petition under

       this part may not be raised in a second or subsequent petition under this part.

Postconviction relief is not intended as a substitute for a direct appeal. In re Manula (1993),

263 Mont. 166, 169, 866 P.2d 1127, 1129 (citations omitted). The purpose of this

requirement is to preserve postconviction relief as an opportunity to explore only those issues


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which are not properly considered on direct appeal. See Manula, 263 Mont. at 169, 866 P.2d

at 1129.

¶22      In this case, Phillips never filed a direct appeal challenging his restitution obligation

even though he could reasonably have raised his claims regarding restitution in a direct

appeal. Moreover, as the State points out in its brief, the two cases that Phillips cites in

support of his claims regarding restitution, State v. Hilgers, 1999 MT 284, 297 Mont. 23, 989

P.2d 866, and State v. Brown (1994), 263 Mont. 223, 867 P.2d 1098, were direct appeal

cases.

¶23      Accordingly, we hold that Phillips' claims regarding restitution are procedurally

barred by § 46-21-105(2), MCA, because they could have been raised on direct appeal.

¶24      Affirmed.


                                                            /S/ JAMES C. NELSON


We Concur:

/S/ PATRICIA COTTER
/S/ TERRY N. TRIEWEILER
/S/ JIM REGNIER
/S/ JIM RICE




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