                                                                                        February 17 2015


                                          DA 14-0400
                                                                                        Case Number: DA 14-0400

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2015 MT 48



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

BRIAN LEE OSBORN,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Missoula, Cause No. DC 07-282
                        Honorable Karen Townsend, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Brian Len Osborn (Self-Represented), Great Falls, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss,
                        Assistant Attorney General, Helena, Montana

                        Kirsten H. Pabst, Missoula County Attorney, Missoula, Montana



                                                    Submitted on Briefs: January 14, 2015
                                                               Decided: February 17, 2015


Filed:

                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.



¶1    Brian Osborn appeals from an order of the Fourth Judicial District, Missoula

County, denying his motion for relief from a final judgment.

¶2    We rephrase the issue as: Whether the District Court properly denied Brian

Osborn’s motion brought under M. R. Civ. P. 60(b). We affirm.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶3    On December 26, 2007, Missoula County District Court Judge Harkin sentenced

Osborn to ten years, with five years suspended, on a charge of felony theft and six

months, all suspended on misdemeanor charges of obstructing a peace officer and

resisting arrest (DC 07-282). The three sentences were to run concurrent to each other.

At that time, Osborn was already serving a suspended sentence on a prior conviction

(DC 01-423) and Judge Harkin ordered the 2007 sentence to run concurrent to any

sentence imposed for revocations in the prior case. In January 2008, Osborn sought

review by the Sentence Review Division, which affirmed the sentence, but modified two

conditions.

¶4    On July 11, 2012, Osborn began serving the suspended portion of the Missoula

case, DC 07-282. In August 2012, Osborn was arrested in Cascade County and charged

with criminal possession of dangerous drugs (DC 12-395).         The Missoula County

Attorney’s Office filed a petition to revoke Osborn’s suspended sentence in case

DC 07-282. Osborn was sentenced in Cascade County to two years, all suspended, to run

                                            2
concurrent to any other sentence he may receive for probation violations. In April 2013,

Osborn and the Missoula County Attorney reached an agreement, whereby Osborn

admitted to the probation violations and was permitted to return to probation on the

condition that the State would pursue a new disposition in six months if Osborn failed to

comply with the terms of his suspended sentence. Less than a month later, the Missoula

County Attorney filed a Supplemental Petition to Revoke on the basis that Osborn had

absconded from supervision. Missoula County District Court Judge Townsend issued a

bench warrant on May 22, 2013.

¶5     On May 29, 2013, Cascade County officers arrested Osborn for criminal trespass

and theft. The next day, Osborn made an initial appearance and bail was set at $10,000

for the Cascade County charges and $25,000 for the Missoula County case. Osborn pled

guilty to the trespass and theft charges and was sentenced on August 5, 2013. Soon

afterwards, Cascade County officials filed a motion to revoke the suspended sentence for

case DC 12-395 (Cascade County, possession of dangerous drugs) and on August 19,

2013, Osborn was sentenced to the Department of Corrections for the balance of his

suspended sentence, to run concurrent to any sentence rendered in DC 07-282 (Missoula

County, felony theft).

¶6     The Missoula County Attorney then filed a second Supplemental Petition to

Revoke. On December 31, 2013, Osborn admitted to the violation and Missoula District

Court Judge Townsend revoked the suspended sentence and committed Osborn to the

Department of Corrections for five years, with two years suspended. Townsend ordered
                                           3
the sentence to run consecutive to the sentence Osborn was currently serving from

Cascade County. Additionally, Osborn was given 241 days credit for jail time served.

¶7    In February 2014, Osborn filed for review with the Sentence Review Division

(SRD), which subsequently concluded that the sentence was not clearly excessive. In

April 2014, prior to the SRD decision, Osborn filed in Missoula District Court a motion

for relief from a judgment pursuant to M. R. Civ. P. 60(b). In his motion, Osborn

requested additional credit for jail time served and reversal of the Missoula Court’s

decision to run the sentence consecutive to the Cascade County sentence. The State

opposed the motion, arguing that the Rules of Civil Procedure do not apply to a criminal

case and thus proceeding on a motion pursuant to M. R. Civ. P. 60(b) was not the

appropriate procedure. On June 18, 2014, Judge Townsend denied Osborn’s motion.

                              STANDARD OF REVIEW

¶8    This Court reviews a district court’s revocation of a suspended sentence for abuse

of discretion. State v. Adams, 2013 MT 189, ¶ 11, 371 Mont. 28, 305 P.3d 808 (citations

omitted). “We review a criminal sentence for legality to determine whether the sentence

is within statutory parameters. Such a determination of legality is a question of law,

which is reviewed de novo.” Adams, ¶ 11 (citations omitted).

¶9    “Our standard of review of a district court’s ruling on a motion pursuant to M. R.

Civ. P. 60(b) depends on the nature of the final judgment, order, or proceeding from

which relief is sought and the specific basis of the Rule 60(b) motion.” Essex Ins. Co. v.

Moose’s Saloon, Inc., 2007 MT 202, ¶ 16, 338 Mont. 423, 166 P.3d 451. Generally, we
                                            4
review rulings on M. R. Civ. P. 60(b) motions for abuse of discretion. Essex Ins. Co.,

¶ 16. “Our standard of review of the interpretation and application of a statute to a

particular circumstance is whether the district court was correct as a matter of law.”

Funke v. Estate of Shultz, 2009 MT 411, ¶ 6, 353 Mont. 492, 223 P.3d 839 (citations

omitted).

                                       DISCUSSION

¶10    Issue: Whether the District Court properly denied Brian Osborn’s motion brought

under M. R. Civ. P. 60(b).

¶11    Criminal sentences may be reviewed according to the procedures laid out in Title

46 of the Montana Code Annotated. Osborn asserts that revocation proceedings are civil

in nature and, as such, the rules of civil procedure should apply. Additionally, he argues

that the rules of criminal procedure do not apply to probation violations, as these types of

violations are not included in the definition of “offense” in Title 46.

¶12    An individual serving a suspended sentence lives knowing that “a fixed sentence

for a definite term hangs over him.” State v. Watts, 221 Mont. 104, 106, 717 P.2d 24, 26

(1986) (quoting Roberts v. United States, 320 U.S. 264, 64 S. Ct. 113 (1943)). We have

characterized probation as “an act of grace by a sentencing court,” given with the purpose

of offering the defendant an alternative to prison. State v. Boulton, 2006 MT 170, ¶ 15,

332 Mont. 538, 140 P.3d 482; Watts, 221 Mont. at 106, 717 P.2d at 26. When an

individual violates the terms of a suspended sentence, the district court must determine

whether the goal of rehabilitation is “best served by continued liberty or by
                                              5
incarceration.” Boulton, ¶ 15 (citations omitted). A revocation proceeding differs from a

criminal adjudication and does not require the same level of proof. Watts, 221 Mont. at

106, 717 P.2d at 25.        For instance, a criminal conviction requires proof beyond a

reasonable doubt, whereas a suspended sentence may be revoked if the prosecution

proves a violation by a preponderance of the evidence. Section 46-18-203(6)(a), MCA;

Boulton, ¶ 15.

¶13    However, while the level of proof in a revocation resembles a civil case, the rules

of criminal and appellate procedure are still applicable to the proceedings.1 For example,

a district court judge presiding over a revocation must follow the dictates of

§ 46-18-203(7), MCA, which provides for three sentencing options upon revocation.

State v. Seals, 2007 MT 71, ¶ 16, 336 Mont. 416, 156 P.3d 15; § 46-18-203(7), MCA.

Moreover, sentencing after the revocation of a suspended or deferred sentence is

“particularly and expressly” governed by § 46-18-203, MCA. Seals, ¶ 15. Because

revocations, at their root, involve a criminal case, the rules of criminal procedure apply

when an individual seeks to challenge the sentence received upon revocation.

¶14    Criminal defendants seeking to challenge their sentences must follow the

procedures established by the Montana Rules of Criminal Procedure in Title 46, MCA. A

criminal defendant may seek review, as Osborn did here, with the Sentence Review

Division. The Sentence Review Division, codified at §§ 46-18-901 to -905, MCA,


1
 We have also held that the Rules of Evidence, including the hearsay rules, do not apply in revocation
hearings. State v. Macker, 2014 MT 3, ¶ 15, 373 Mont. 199, 317 P.3d 150; M. R. Evid. 101(c)(3).
                                                  6
reviews questions of equity, “such as length of sentence or proportionality to the crime.”

Jordan v. State, 2008 MT 334, ¶ 18, 346 Mont. 193, 194 P.3d 657 (citations omitted). A

criminal defendant seeking to challenge the legality of a sentence must follow the method

established in § 46-20-101(2), which provides that the only method of review in criminal

cases shall be by notice of appeal to the Montana Supreme Court. State v. Tweed, 2002

MT 286, ¶ 12, 312 Mont. 482, 59 P.3d 1105 (overruled on other grounds by State v.

Deserly, 2008 MT 242, 344 Mont. 486, 188 P.3d 1057). The Supreme Court reviews

sentences for legality only. Jordan, ¶ 18 (citations omitted).

¶15    Here, Osborn could have challenged the legality of his sentence through a direct

appeal to this Court. Under M. R. App. P. 4(5)(b)(i), a defendant must file notice of

appeal within 60 days after entry of judgment. Tweed, ¶ 12 (applying older version of

M. R. App. P. 5(b)). The Supreme Court may grant an out-of-time appeal only under

“extraordinary circumstances amounting to a gross miscarriage of justice.” M. R. App. P.

4(6). “If a defendant does not appeal, he is generally precluded from later challenging

the legality of the sentence.” State v. Adams, 2013 MT 189, ¶ 15, 371 Mont. 28, 305

P.3d 808. The written judgment on Osborn’s conviction and sentence was filed on

December 31, 2013. The time to appeal to this Court expired on March 1, 2014. Rather

than challenging the legality of the sentence through the direct appeal process, Osborn

filed a M. R. Civ. P. 60(b) motion in Missoula District Court. Osborn did not perfect his

appeal within the timeframe and is therefore precluded from challenging his sentence

with the Montana Supreme Court.
                                             7
¶16   For the reasons stated above, we affirm the District Court’s denial of Osborn’s

motion pursuant to M. R. Civ. P. 60(b).

                                              /S/ MIKE McGRATH

We concur:

/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE




                                          8
