                                          No. 03-817

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2004 MT 374


FORREST M. SANDERS,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Respondent.



APPEAL FROM:         District Court of the Thirteenth Judicial District,
                     In and for the County of Yellowstone, Cause No. DV 03-0705,
                     The Honorable Gregory R. Todd, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Forrest M. Sanders (pro se), Billings, Montana

              For Respondent:

                     Hon. Mike McGrath, Attorney General; Jennifer Anders,
                     Assistant Attorney General, Helena, Montana

                     Dennis Paxinos, Yellowstone County Attorney; Mark J. Murphy, Deputy
                     County Attorney, Billings, Montana


                                                  Submitted on Briefs: June 23, 2004

                                                              Decided: December 27, 2004

Filed:


                     __________________________________________
                                       Clerk
Justice John Warner delivered the Opinion of the Court.

¶1        Forrest M. Sanders (Sanders), pro se, appeals from an order of the Thirteenth Judicial

District Court, Yellowstone County, denying his petition for postconviction relief. We

affirm.

¶2        We address the following issue on appeal:

¶3        Did the District Court correctly apply the procedural bar in § 46-21-105(2), MCA,

and refuse to address Sanders’ claim for relief on that basis?

                                        BACKGROUND

¶4        On October 11, 2002, Sanders pled nolo contendere to the offense of partner family

member assault (assault). On the same day, the District Court held a hearing on the State’s

petition to revoke the suspended portion of his sentence for a different offense. At the

hearing, Sanders admitted to violating the terms set forth in the petition. Immediately

following the hearing, the District Court revoked the suspended sentence and imposed a one-

year jail term on the assault charge, to run concurrent with the sentence imposed for the

previous offense. Sanders did not appeal.

¶5        Petitioner alleges that on or about August 18, 2002, he filed a motion to dismiss the

assault charge on the grounds that he did not appear before a magistrate and no bail was set

within 72 hours of his arrest, pursuant to § 46-23-1012(3), MCA. See State v. Giddings,

2001 MT 76, 305 Mont. 74, 29 P.3d 475. However, Petitioner subsequently withdrew the

motion in an effort to resolve all pending claims and charges against him. In consideration

for his withdrawal of the Giddings claim, the felony assault charge was reduced to a

misdemeanor and Petitioner was not designated a persistent felony offender.

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¶6        In April 2003, Sanders, instead of filing a direct appeal, filed a pro se petition for a

writ of habeas corpus in this Court. He alleged the District Court lacked jurisdiction to

revoke his suspended sentence because he did not receive a hearing within 72 hours as

required by § 46-23-1012(3), MCA, and further sought relief because he was eligible for

parole but had not yet appeared before the parol board. On July 8, 2003, this Court ruled

Sanders’ first argument constituted a collateral attack upon his conviction and was therefore

not appropriate for habeas corpus relief, but remanded the case to the District Court for

further consideration as a petition for postconviction relief. This Court held that his second

ground for relief was moot because he had a parol hearing scheduled for July 2003.

¶7        The petition was then considered by the District Court. Sanders filed a brief in

support of his petition for postconviction relief. The State responded that Sanders’ claim he

was not timely brought before a magistrate was waived because he agreed to abandon that

issue when he pled guilty, in exchange for the State’s agreement to reduce the assault charge

from a felony to a misdemeanor and drop the persistent felony offender designation. The

State also pointed out Sanders was held not only on a probation violation, but on the assault

offense, so that the applicability of § 46-23-1012(3), MCA, was questionable.

¶8        The District Court acknowledged the State’s waiver argument, but denied the petition

on the basis of the direct appeal bar in § 46-21-105(2), MCA; reasoning that since Sanders

could have raised the issue on direct appeal, he was procedurally barred from doing so on

postconviction review.

¶9        Sanders now appeals from the District Court’s denial of his petition for postconviction

relief.

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                                STANDARD OF REVIEW

¶10    We review a district court’s denial of a petition for postconviction relief to determine

whether the court’s findings are clearly erroneous and whether its conclusions of law are

correct. Walker v. State, 2003 MT 134, ¶ 36, 316 Mont. 103, ¶ 36, 68 P.3d 872, ¶ 36.

                                       DISCUSSION

¶11    Did the District Court correctly apply the procedural bar in § 46-21-105(2), MCA,

and refuse to address Sanders’ claim for relief on that basis?

¶12    Sanders argues that a direct appeal is not the sole means by which he can raise the

issue that the District Court lacked subject matter jurisdiction, because such a claim can be

raised at any time. He points out that he waived his right to appeal pursuant to the plea

agreement. Therefore, Sanders maintains he was not precluded from raising the jurisdiction

argument in his petition for postconviction relief. Sanders cites State v. Moorman (1997),

279 Mont. 330, 928 P.2d 145, in support of this proposition. Sanders argues further that

because the District Court lacked the jurisdiction to revoke his suspended sentence, he may

be wrongly forced to comply with the Violent Offender Registration Act.

¶13    Relying on our language in Gollehon v. State, 1999 MT 210, ¶ 55, 296 Mont. 6, ¶ 55,

986 P.2d 395, ¶ 55, the State contends Sanders’ claim of lack of subject matter jurisdiction

is barred by § 46-21-105(2), MCA, because Sanders could have raised this argument on

direct appeal. The State also argues that Sanders’ claim is barred under the principle that a

guilty plea waives any substantive or procedural defense that arose prior to entry of the plea.

¶14    In Moorman, we concluded the sentencing court lacked “subject matter jurisdiction”

to impose the particular sentence and that the bar in § 46-21-105(2), MCA, did not apply in

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such cases. Moorman, 279 Mont. at 336, 928 P.2d at 149. However, we recently overruled

that portion of the opinion on which Sanders relies in Pena v. State, 2004 MT 293, 323

Mont. 347, 100 P.3d 154, stating:

       However, the question in [Moorman] was not whether the court possessed the
       “power” or “capacity” to entertain, hear and determine a matter, but rather
       whether the particular sentence imposed by the sentencing court was
       statutorily permissible, and therefore, to the extent that our holding in
       Moorman characterized and resolved the sentencing issue before it as
       “jurisdictional,” that holding was incorrect, and is overruled.

Pena, ¶ 25.

¶15    Likewise, Sanders’ claim the District Court failed to follow the statutory procedure

concerning making arrangements for a hearing within 72 hours, as delineated in § 46-23-

1012(3), MCA, is not a true jurisdictional question. Whether a district court commits a

statutory error must not be confused with the question of whether the court had the power

or capacity to proceed in the first instance. Pena, ¶ 22. Sanders’ claim is more properly

characterized as a claim that his sentence was illegal, which is a nonjurisdictional claim for

purposes of the postconviction statutes. Pena, ¶ 25. Section 46-21-105(2), MCA, precludes

postconviction relief upon such a claim because Sanders could have raised it on direct

appeal. While the District Court did not have the benefit of Pena, it nevertheless correctly

concluded that § 46-21-105(2), MCA, bars Sanders’ claim for postconviction relief.

¶16    As for Sanders’ argument regarding the Violent Offender Registration Act, this issue

was not raised in the District Court. A postconviction claim that is not raised in an original

or amended original petition cannot be raised for the first time on appeal. State v. Garner,

2001 MT 222, ¶ 45, 306 Mont. 462, ¶ 45, 36 P.3d 346, ¶ 45; § 46-21-105(1)(a), MCA.


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Thus, we decline to address it.

¶17    Affirmed.

                                  /S/ JOHN WARNER



We Concur:

/S/ W. WILLIAM LEAPHART
/S/ JIM REGNIER
/S/ PATRICIA O. COTTER
/S/ JIM RICE




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