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                                                              No. 00-274

                   IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                             2001 MT 2N


                                                   STATE OF MONTANA,

                                                   Plaintiff and Respondent,

                                                                      v.

                                                DANIEL TODD COLLINS,

                                                  Defendant and Appellant.

                    APPEAL FROM: District Court of the Fourth Judicial District,

                                           In and for the County of Missoula,

                                The Honorable John S. Henson, Judge presiding.

                                                  COUNSEL OF RECORD:

                                                           For Appellant:

                                Daniel T. Collins, Deer Lodge, Montana (pro se)

                                                          For Respondent:

 Joseph P. Mazurek, Montana Attorney General, Pamela P. Collins, Assistant Montana
Attorney General, Helena, Montana; Fred R. Van Valkenburg, Missoula County Attorney,
                                 Missoula, Montana

                                      Submitted on Briefs: November 30, 2000
                                             Decided: January 4, 2001

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                                                                   Filed:

                              __________________________________________

                                                                    Clerk

                        Justice James C. Nelson delivered the Opinion of the Court.



¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent but shall be filed as a public
document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.

¶2 Daniel Todd Collins (Collins) an inmate at the Montana State Prison, appeals, pro se,
from the District Court's denial of his Motion to Amend Judgment. In this motion, Collins
contended that the court was required, under § 46-18-1003, MCA, to give him 168 days
credit for the time he spent in the Intensive Supervision Program (ISP). We conclude that
Collins is procedurally barred from collaterally attacking the validity of his sentence by
way of this appeal. Accordingly, we decline to address the merits of his appeal and
dismiss this cause with prejudice.

                                                         BACKGROUND

¶3 On February 24, 1998, Collins entered his plea of guilty to charges of felony theft in
violation of § 45-6-301(2)(a), MCA, and elder abuse, a misdemeanor in violation of § 52-
3-825(2), MCA. These charges were filed by information in the Fourth Judicial District
Court, Missoula County, as Cause No. 12467. Collins entered a guilty plea to these
charges pursuant to a plea agreement. On May 5, 1998, Collins was sentenced. The court
declared him to be a persistent felony offender, pursuant to § 46-18-501, MCA. As a
result, Collins was sentenced on the felony theft charge to 28 years in the Montana State
Prison, and with respect to the misdemeanor charge, to 5 months in the Missoula County
Jail with credit for 5 months served. The felony and misdemeanor sentences were ordered
to run concurrently with each other and with Missoula County Cause No. 12611.
Furthermore, the court suspended the felony sentence on various terms and conditions,


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including that Collins enter into and successfully complete the ISP.

¶4 On October 21, 1998, the State filed a petition to revoke Collins' suspended sentence
because of probation violations, including his termination from the ISP for drinking
intoxicants. Following an initial denial of the allegations contained in the petition to
revoke, Collins admitted the allegations in a signed waiver of rights and entry of
admission filed December 29, 1998.

¶5 The court accepted Collins' admissions, and held a dispositional hearing on January 19,
1999. At the conclusion of this hearing the court revoked Collins' 28-year suspended
sentence and imposed a prison sentence of 28 years with 5 suspended on various terms
and conditions. Regarding credit, the court stated:

        Due to the Defendant's failure to comply with the terms and conditions of his
        suspended sentence while under the supervision of the Department of Probation and
        Parole, the Court finds that he is not entitled to receive, and shall not receive, credit
        for any elapsed time between the date of his conviction and the date of this Order,
        except that he shall receive credit from March 5, 1997, through April 22, 1997; from
        September 10, 1997, through November 19, 1997; from December 23, 1997,
        through December 24, 1997; and from October 19, 1998, through date of
        sentencing, January 19, 1999, for two hundred fifteen (215) days jail time which he
        has previously served. The Defendant shall not receive credit for time served on the
        Intensive Supervision Program.



¶6 Following a hearing before the Sentence Review Division, Collins' sentence was
amended to 28 years in the Montana State Prison, with 18 years suspended, with
conditions. The amended judgment and commitment was entered on July 29, 1999.

¶7 On January 21, 2000, Collins filed in the District Court his motion to amend the
judgment, contending that the court was required, under § 46-18-1003, MCA, to give him
168 days credit for the time he spent in the ISP (which he termed "house arrest"). The
State opposed this motion, and on February 25, 2000, the District Court denied Collins'
motion stating:

        The Court has considered the Defendant's Motion to Amend Judgment. The Court
        finds that the intensive supervision program is not included in the definition of

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        house arrest under Section 46-18-1001(2). The Court is not required to give credit
        for time served under the intensive supervision program. This Court specifically
        stated that the Defendant shall not receive that credit for all the reasons listed in the
        Judgment of January 19, 1999.


¶8 From this decision, Collins timely appealed.

                                                            DISCUSSION

¶9 Collins' motion to amend judgment was an attempt to collaterally attack the validity of
his sentence on the basis that the court declined to give him credit for the time spent in the
ISP. That sort of attack is not permitted.

¶10 Montana's statutes for postconviction relief, §§ 46-21-101 to 203, MCA, provide the
exclusive remedy for collaterally attacking the validity of a criminal sentence. See State v.
Baker, 1999 MT 251, ¶¶ 14-15, 296 Mont. 253, ¶¶ 14-15, 989 P.2d 335, ¶¶ 14-15 (motion
for modification of sentence construed as petition for postconviction relief); State v.
Nichols, 1999 MT 212, ¶ 4, 295 Mont. 489, ¶ 4, 986 P.2d 1093, ¶ 4 (motion for amended
sentence and judgment treated as postconviction petition); State v. Howard (1997), 282
Mont. 522, 524-25, 938 P.2d 710, 711-12 (motion to vacate conviction construed as
postconviction petition); State v. George (1986), 224 Mont. 495, 497, 730 P.2d 412, 414
(motion to amend judgment considered as postconviction petition). Section 46-21-101(1),
MCA. The relief which Collins sought clearly fell within the ambit of the postconviction
statutes.

¶11 Moreover, as noted above, the amended judgment was filed July 29, 1999. Pursuant to
Rule 5(b), M.R.App.P., Collins was required to file a notice of appeal within 60 days of
that date. However, he failed to pursue any appeal and instead filed a motion to amend the
judgment on January 21, 2000. Because Collins could have raised his claim in the District
Court at the time he was sentenced and on appeal but did not do so, his claim is now
barred by § 46-21-105, MCA. This statute provides in pertinent part:

        (2) When a petitioner has been afforded the opportunity for a direct appeal of the
        petitioner's conviction, grounds for relief that were or could reasonably have been
        raised on direct appeal may not be raised, considered, or decided in a proceeding
        brought under this chapter. . . .


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        (3) For purposes of this section, "grounds for relief" incudes all legal and factual
        issues that were or could have been raised in support of the petitioner's claim for
        relief.

¶12 We have consistently applied the procedural bar in § 46-21-105, MCA, to preserve the
integrity of the trial and direct appeal process. See Gollehon v. State, 1999 MT 210, ¶¶ 50-
51, 296 Mont. 6, ¶¶ 50-51, 986 P.2d 395, ¶¶ 50-51, cert. denied, ___ U.S. ___, 120 S.Ct.
1539 (2000). The procedural bar also applies to issues that a petitioner did not preserve at
the trial level for appeal. State v. Baker (1995), 272 Mont. 273, 280-81, 901 P.2d 54, 58-
59, cert. denied, 516 U.S. 1125, 116 S.Ct. 940 (1996).

¶13 Accordingly, Collins' claim in this cause being procedurally barred, this cause is
dismissed with prejudice to the merits.

                                                    /S/ JAMES C. NELSON

                                                              We Concur:

                                                     /S/ KARLA M. GRAY

                                                /S/ TERRY N. TRIEWEILER

                                                         /S/ JIM REGNIER

                                               /S/ W. WILLIAM LEAPHART




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