                                                                                              07/18/2017


                                          DA 15-0702
                                                                                          Case Number: DA 15-0702

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2017 MT 177



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

FRANCO LEO TORRES,

               Defendant and Appellant.


APPEAL FROM:           District Court of the First Judicial District,
                       In and For the County of Lewis And Clark, Cause No. CDC 2008-211
                       Honorable Kathy Seeley, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Chad Wright, Chief Appellate Defender, Moses Okeyo, Assistant Appellate
                       Defender, Helena, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Madison L. Mattioli, Assistant
                       Attorney General, Helena, Montana

                       Leo Gallagher, Lewis and Clark County Attorney, Helena, Montana



                                                   Submitted on Briefs: May 24, 2017

                                                               Decided: July 18, 2017


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1    Appellant, Franco Leo Torres (Torres), appeals the orders of the First Judicial

District Court, Lewis and Clark County, which denied his motion to set aside a prior felony

conviction, and revoked his suspended sentence. We affirm and restate the issue as

follows:

¶2    Did the District Court err by revoking Torres’ suspended sentence?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3    In 2008, Torres pled guilty to felony Partner or Family Member Assault (PFMA)

and received a three-year deferred sentence. In January 2009, Torres’ sentence was

revoked and he was sentenced to the Department of Corrections (DOC) for five years, with

two years suspended. After serving three years, Torres was released in January 2012 to

serve the suspended portion of his sentence.

¶4    In August 2013, while serving his suspended sentence, Torres was arrested for

felony PFMA in Yellowstone County. Citing this charge and alleging other probation

violations, the Lewis and Clark County Attorney’s Office filed a second petition for

revocation of Torres’ sentence. Torres denied the allegations of the petition and filed a

motion to set aside his 2008 PFMA conviction, arguing the pre-2013 PFMA statute was

unconstitutional as violating the equal protection provisions of the Montana and United

States Constitutions. The District Court denied Torres’ motion to set aside his previous

conviction, and Torres admitted to the violations set forth in the petition to revoke. He




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received a two-year sentence to the DOC, which was ordered to run concurrently with the

sentence imposed by the Yellowstone County District Court for Torres’ 2013 PFMA.

¶5     Torres appeals the District Court’s denial of his motion to set aside the 2008 PFMA

conviction and revocation of his suspended sentence.

                               STANDARD OF REVIEW

¶6     We review a district court’s revocation of a suspended sentence for abuse of

discretion and to determine whether the court’s decision was supported by a preponderance

of the evidence. State v. Muhammad, 2002 MT 47, ¶ 17, 301 Mont. 1, 43 P.3d 318; State

v. Adams, 2013 MT 189, ¶ 11, 371 Mont. 23, 305 P.3d 808. Further, we review a district

court’s conclusions of law for correctness. In re M.W., 2012 MT 44, ¶ 9, 364 Mont. 211,

272 P.3d 112; State v. Knudson, 2007 MT 324, ¶ 11, 340 Mont. 167, 174 P.3d 469.

                                      DISCUSSION

¶7     Did the District Court err by revoking Torres’ suspended sentence?

¶8     Torres argues a revocation proceeding “is as good a venue as any to allege illegality

of an imposed sentence for the underlying offense.” He presents a constitutionally-based

challenge to his 2008 PFMA conviction, arguing that such “collateral challenges” to prior

convictions are permissible pursuant to State v. Maine, 2011 MT 90, 360 Mont. 182, 255

P.3d 64. Alternatively, recognizing that we were, in his words, “disinclined to consider []

the unconstitutionality” of the PFMA statute in State v. Watts, 2016 MT 331, 286 Mont. 8,

385 P.3d 960, because the issue had not been preserved, Torres asks that we review his

challenge pursuant to State v. Lenihan, 184 Mont. 338, 602 P.2d 997 (1979), or the plain

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error doctrine. Turning to the merits of his challenge, Torres cites our decision in State v.

Theeler, 2016 MT 318, 385 Mont. 471, 385 P.3d 551, which recognized that the former

version of § 45-5-206, MCA, violated equal protection, but criticizes what he describes as

the “patch-fix” remedy of severance we adopted there. See Theeler, ¶ 14 (severing the

phrase “with a person of the opposite sex” from § 45-5-206(2)(b), MCA). He argues the

statute constitutes an unconstitutional “felony enhancement” and should be completely

invalidated.

¶9       Torres’ numerous arguments are wrapped around the proverbial and procedural

axle. First, this is a sentence revocation proceeding on Torres’ original 2008 PFMA

conviction, the sentence he is still serving. Although Torres claims to be raising a

“collateral challenge” to a prior conviction, of the nature addressed in Maine, to prevent a

felony “enhancement,” that is not the situation here. Maine addressed challenges to “a

prior conviction offered for enhancement purposes.” Maine, ¶ 32. Unlike Maine, no prior

conviction is being offered to enhance a new charge in this proceeding, which concerns

only the sentence for the original 2008 PFMA conviction. Torres’ arguments under Maine

could be pursued in a subsequent criminal proceeding in which the State seeks to use his

2008 conviction to enhance a new charge, but not within a revocation proceeding on

Torres’ original conviction. In a sentence revocation proceeding, the conviction is not at

issue.

¶10      Torres’ argument that a revocation proceeding “is as good a venue as any to allege

illegality of an imposed sentence for the underlying offense,” runs counter to longstanding

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precedent. In Muhammad, ¶ 22, we held that we were “without jurisdiction to review the

legality” of Muhammad’s original sentence in a revocation proceeding, where Muhammad

had not challenged his original sentence by appeal.1 Likewise, in State v. White, 2008 MT

464, ¶ 20, 348 Mont. 196, 199 P.3d 274 (overruled in part on other grounds by State v.

Tirey, 2010 MT 283, ¶ 27, 358 Mont. 510, 247 P.3d 701), we held that “White may not,

within the context of the [2007] revocation proceeding, challenge the legality of the

conditions imposed on her 1997 suspended sentence, as such a challenge is untimely.”). In

In re M.W., ¶ 12, we concluded that “M.W. did not appeal from the order imposing the

registration requirement entered by the Youth Court in July 2009. . . . [T]he challenge he

now attempts to make to the original imposition of the requirement has been forfeited.”

See also Adams, ¶ 17 (“Adams did not challenge the 2007 Sentence until the State filed a

petition to revoke in 2012, and his challenge is untimely.”). As recognized by the federal

courts, “a supervised release revocation proceeding is not the proper forum for a collateral

attack on the conviction or sentence that resulted in the term of supervised release.” United

States v. Warren, 335 F.3d 76, 77 (2nd Cir. 2003). Torres is improperly attempting to

“collaterally” attack his 2008 PFMA conviction within a sentence revocation proceeding

involving that same conviction. Essentially, Torres seeks a second chance to appeal and

raise issues he failed to raise when he did not appeal from his conviction.




1
 We have subsequently clarified the meaning and use of the term “jurisdiction.” State v.
Garrymore, 2006 MT 245, ¶ 10 n.1, 334 Mont. 1, 145 P.3d 946.
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¶11    The State argues, regardless of whether Torres could challenge his conviction in a

revocation proceeding, he previously waived his constitutional challenge to the PFMA

statute in 2008 when he voluntarily pled guilty, citing Watts. In Watts, the defendant pled

guilty to PFMA pursuant to a plea agreement, which did not preserve a right to challenge

his conviction, and affirmatively stated he was waiving his appeal rights. Watts, ¶ 10. We

held that “Watts has not preserved the right to challenge his conviction based on the

constitutionality of the underlying statute.” Watts, ¶ 10. Watts was premised on a long

line of authority holding the knowing and voluntary entry of a guilty plea waives all

non-jurisdictional defects and defenses, including claims of constitutional rights violations

which occurred prior to the plea. Watts, ¶ 9; see also State v. Lindsey, 2011 MT 46, ¶ 19,

359 Mont. 362, 249 P.3d 491; State v. Pavey, 2010 MT 104, ¶ 11, 356 Mont. 248, 231 P.3d

1104; State v. Kelsch, 2008 MT 339, ¶ 8, 346 Mont. 260, 194 P.3d 670; State v. Rytky,

2006 MT 134, ¶ 7, 332 Mont. 364, 137 P.3d 530; State v. Gordon, 1999 MT 169, ¶ 23, 295

Mont. 183, 983 P.2d 377; State v. Turcotte, 164 Mont. 426, 428, 524 P.2d 787, 788-89

(1974).

¶12    As in Watts, Torres forfeited his constitutional challenge of the PFMA statute when

he pled guilty, in 2008, and, consistent therewith, we decline to review the matter pursuant

to Lenihan or the plain error doctrine.

¶13    Affirmed.



                                                  /S/ JIM RICE

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We concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA




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