                                                                                        June 18 2008


                                           DA 07-0555

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2008 MT 222N



WILLIAM LARRY WEAVER,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.



APPEAL FROM:           District Court of the Fourth Judicial District,
                       In and For the County of Missoula, Cause No. DC 96-12431
                       Honorable John W. Larson, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       William Larry Weaver, Pro Se, Sparta, Georgia

                For Appellee:

                       Hon. Mike McGrath, Attorney General; Mark W. Mattioli, Assistant
                       Attorney General, Helena, Montana

                       Fred R. Van Valkenburg, Missoula County Attorney, Missoula, Montana



                                                   Submitted on Briefs: May 14, 2008

                                                              Decided: June 18, 2008


Filed:

                       __________________________________________
                                         Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be cited

as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and

its case title, Supreme Court 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     Appellant William Larry Weaver (Weaver) appeals the District Court’s denial of his

petition for postconviction relief or habeas relief. We affirm.

¶3     Weaver was convicted in 1998 of deliberate homicide. The District Court sentenced

Weaver to life without parole and imposed a consecutive ten year enhancement for use of a

dangerous weapon. We affirmed Weaver’s conviction in State v. Weaver, 2001 MT 115, 305

Mont. 315, 28 P.3d 451. Weaver then filed a petition for postconviction relief in which he

alleged ineffective assistance of counsel. He raised no sentencing claims. The District Court

denied Weaver’s petition and we affirmed on appeal in Weaver v. State, 2005 MT 158, 327

Mont. 441, 114 P.3d 1039.

¶4     The sentence review division affirmed Weaver’s sentence in March 2006. Weaver

filed a motion to vacate his sentence in July 2007. The District Court denied Weaver’s

motion and it also denied Weaver’s motion for reconsideration. Weaver then filed this

appeal.

¶5     Weaver argues on appeal that he committed his crime in 1993 and the law at that time

did not allow for a sentence of life without the possibility of parole. Weaver contends that

his “is a simple case.” He asks the Court simply to re-sentence him to a legal sentence. Ten
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years would be fine, according to Weaver. The State contends that Weaver’s sentence falls

within the statutory parameters and therefore his claim should be treated as a petition for

postconviction relief or habeas relief. We agree.

¶6     We review the term or length of a sentence for legality only to ascertain whether the

sentence falls within the statutory parameters. State v. Eaton, 2004 MT 283, ¶ 11, 323 Mont.

287, ¶ 11, 99 P.3d 661, ¶ 11. Questions regarding the fairness or equity of a sentence falls

with the sentence review division. State v. Shults, 2006 MT 100, ¶ 32, 332 Mont. 130, ¶ 32,

136 P.3d 507, ¶ 32. We have determined to decide this case pursuant to Section I, paragraph

3(d), of our 1996 Internal Operating Rules, as amended in 2003, that provide for

memorandum opinions. It is manifest on the face of the briefs and record before us that

Weaver’s petition faces insurmountable procedural bars and that his claim of an illegal

sentence is without merit. The District Court applied clearly settled Montana law to

Weaver’s claims.

¶7     We affirm.

                                                 /S/ BRIAN MORRIS

We Concur:

/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER




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