                                                                                             08/23/2016


                                           DA 15-0787
                                                                                         Case Number: DA 15-0787

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2016 MT 211N



STATE OF MONTANA,

              Respondent and Appellee,

         v.

BRENDA D. BERG,

              Petitioner and Appellant.



APPEAL FROM:           District Court of the Thirteenth Judicial District,
                       In and For the County of Yellowstone, Cause Nos. DC 96-44, DC 96-129,
                       DC 96-326, DC 96-344, DC 96-517, DC 97-191
                       Honorable Rod Souza, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Brenda Berg, Self-Represented, Billings, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Jon Bennion, Assistant
                       Attorney General, Helena, Montana

                       Scott Twito, Yellowstone County Attorney, Billings, Montana



                                                   Submitted on Briefs: June 29, 2016

                                                              Decided: August 23, 2016


Filed:

                       __________________________________________
                                         Clerk
Justice Patricia Cotter delivered the Opinion of the Court.

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

Rules, this case is decided by unpublished opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Brenda D. Berg, appearing pro se, appeals from a November 2015 order of the

Thirteenth Judicial District Court, Yellowstone County, denying her Motion for

Reconsideration of Restitution. We affirm.

¶3     In February of 1998, Berg was sentenced in the Thirteenth Judicial District Court,

to three years with all but four months suspended for each of the crimes underlying Cause

Nos. DC 96-044, DC 96-129, DC 96-326, DC 96-344, DC 96-517, and DC 97-191. The

suspended time was contingent on Berg’s payment of restitution to the victims in the

amount of $27,463.89. On November 13, 2014, Berg filed a Motion for Reconsideration

of Restitution with Memorandum in Support arguing that the imposition of restitution

was improper because the State had not filed affidavits of the victims’ losses in

accordance with § 46-18-242(1)(b), MCA, and that a portion of the award was improper

as it was based on dismissed or unfiled cases.

¶4     A trial court must have a statutory basis for modifying a defendant’s sentence.

State v. Baker, 1999 MT 251, ¶ 14, 296 Mont. 253, 989 P.2d 335. Where a defendant

fails to cite statutory authority for the sentence modification, this Court construes the

motion as a petition for postconviction relief. Baker, ¶¶ 14-15.


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¶5     A petition for postconviction relief may be filed at any time within one year of the

date on which the conviction becomes final. Section 46-21-102(1), MCA. A petition

based on newly discovered evidence may be brought within one year of the date the

petitioner discovers, or reasonably should have discovered, the existence of the evidence.

Section 46-21-102(2), MCA. In relevant part, a conviction becomes final when the time

for appeal to the Montana Supreme Court expires. Section 46-21-102(1)(a), MCA. From

the time the judgment is entered, a defendant has 60 days within which to file an appeal

to the Montana Supreme Court. M. R. App. P. 5(b) (1997). Further, this Court has

consistently held that while a certain amount of latitude may be given to pro se litigants,

it is nonetheless reasonable to expect such litigants to adhere to procedural rules.

Greenup v. Russell, 2000 MT 154, ¶ 15, 300 Mont. 136, 3 P.3d 124.

¶6     Berg was convicted and sentenced in February of 1998. Roughly sixteen years

passed between the time Berg’s conviction became final and the filing of the instant

motion. Therefore, Berg is well outside of the timeframe allowed by § 46-21-102(1),

MCA.

¶7     Further, Berg may not avail herself of the newly discovered evidence provision

contained in § 46-21-102(2), MCA. Berg argues that, because the information that gave

rise to this current claim was only recently discovered as a result of requests made to the

district court, the information should be considered newly discovered evidence.

However, the statute provides that the time in which a petition may be filed begins to run

from “the date on which the petitioner discovers, or reasonably should have discovered,

the existence of the evidence.”    Section 46-21-102(2), MCA.        As the records Berg


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requested have been in existence since 1998, they should have reasonably been

discovered years ago.

¶8     Berg’s sentence put her on notice that the restitution award was predicated in part

on both dismissed cases and unfiled cases in March of 1998; therefore, she cannot now

claim that the evidence is newly discovered. Because Berg may not proceed under either

§§ 46-21-102(1) or -102(2), MCA, Berg’s motion, which we have construed as a petition

for postconviction relief, is time barred. As such, the District Court did not err in

denying Berg’s Motion for Reconsideration of Restitution.

¶9     Finally, Berg seeks consideration regarding her time served. We note that Berg

originally filed a “Motion for Reconsideration of Time Served and Re-Calculation of

M.W.P. for Parole” in the Thirteenth Judicial District Court, Yellowstone County. That

motion was denied without prejudice by the District Court in July 2015, for failure to

correctly serve the proper parties. Berg may refile that motion in the District Court and

correctly serve the proper parties. Alternatively, Berg may assert her claims on writ of

habeas corpus as the writ is the appropriate avenue for relief in cases involving

calculation of “good time” credits. Eisenman v. State, 2000 MT 170, ¶ 13-14, 300 Mont.

322, 5 P.3d 542.

¶10    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for unpublished opinions. In the opinion of

this Court, this case presents a question controlled by settled law.




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¶11   Affirmed.


                              /S/ PATRICIA COTTER


We Concur:

/S/ JIM RICE
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER




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