                                           No. 02-755

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2003 MT 256N



STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

CODY BABB,

              Defendant and Appellant.




APPEAL FROM:         District Court of the Seventh Judicial District,
                     In and For the County of Dawson, Cause No. DC 2001-015.
                     Honorable Richard A. Simonton, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     John Houtz, Attorney at Law, Forsyth, Montana

              For Respondent:

                     Honorable Mike McGrath, Attorney General; Tammy K. Plubell,
                     Assistant Attorney General, Helena, Montana

                     Scott W. Herring, County Attorney; Mark Murphy, Special Deputy
                     County Attorney, Glendive, Montana



                                                        Submitted on Briefs: April 10, 2003

                                                                   Decided: September 23, 2003


Filed:

                     __________________________________________
                                       Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d)(i), Montana Supreme Court 1996 Internal

Operating Rules (Memorandum Opinions), we determine that the legal issues raised in this

appeal are clearly controlled by settled Montana law; that the issues are factual and there

clearly is sufficient evidence to support the findings of fact below; and that the court's

conclusions of law are correct.

¶2     Cody Babb (Babb) appeals from the District Court’s failure to dismiss the charge of

Aggravated Kidnapping by Accountability and the sentence imposed that exceeded the terms

of the plea agreement. We affirm.

¶3     Babb pleaded guilty on December 4, 2001, to Aggravated Kidnapping by Account-

ability and Criminal Distribution of Dangerous Drugs in exchange for the dismissal of a

charge of Deliberate Homicide by Accountability. Babb filed a Notice of Appeal from the

District Court’s sentencing order entered “August 28, 2002, and September 3, 2002.”

¶4     We will not address issues raised on appeal that were not raised in the district court.

State v. Whitehorn, 2002 MT 54, ¶ 24, 309 Mont. 63, ¶ 24, 50 P.3d 121, ¶ 24 (citations

omitted); § 46-20-104(2), MCA; § 46-20-701, MCA. The record is void of any motion by

Babb to dismiss the Aggravated Kidnapping by Accountability charges. Therefore, we will

not address that issue.

¶5     Because Babb pleaded guilty, he can only attack the voluntariness and intelligent

character of his guilty plea; all nonjurisdictional claims are waived. State v. Gordon, 1999

MT 169, ¶ 23, 295 Mont. 183, ¶ 23, 983 P.2d 377, ¶ 23 (citing State v. Wheeler (1997), 285


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Mont. 400, 402, 948 P.2d 698, 699). Babb has not raised a jurisdictional claim (such as

whether the district court could determine that the government lacked the power to bring the

indictment from the face of the indictment or from the record at the time the guilty plea was

accepted). Hagan v. State (1994), 265 Mont. 31, 36, 873 P.2d 1385, 1388; U.S. v. Cortez

(9th Cir. 1992), 973 F.2d 764, 767. Hence, the only issue we consider is the sentence

imposed.

¶6     We have stated in the past that when a district court accepts a guilty plea pursuant

to an agreement between the defendant and the State, the court is not bound by the plea

agreement. State v. Miller (1991), 248 Mont. 194, 196, 810 P.2d 308, 309 (affirmed on

appeal). The plea agreement in the instant case plainly states it is not binding upon the court.

The State made the agreed upon sentence recommendation. The court acted within its

powers and imposed a sentence not in accordance with the sentence recommendation but

within the statutory boundaries.

¶7     We review a district court’s criminal sentence for legality only, addressing whether

the sentence imposed is within the parameters provided by statute. State v. Muhammad,

2002 MT 47, ¶ 18, 309 Mont. 1, ¶ 18, 43 P.3d 318, ¶ 18 (citing State v. Pritchett, 2000 MT

261, ¶ 6, 302 Mont. 1, ¶ 6, 11 P.3d 539, ¶ 6). The sentence imposed by the District Court

is clearly within these parameters. We affirm.


                                                           /S/ W. WILLIAM LEAPHART




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We concur:


/S/ KARLA M. GRAY
/S/ JIM RICE
/S/ PATRICIA COTTER
/S/ JIM REGNIER




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