                            NO. 96-412
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                              1997


STATE OF MONTANA,
          Plaintiff and Respondent,
    v.
LAWRENCE R. SHEPPARD,
         Defendant and Appellant.



APPEAL FROM:   District Court of the Third Judicial District,
               In and for the County of Powell,
               The Honorable Ted L. Mizner, Judge presiding.


COUNSEL OF RECORD:
         For Appellant:
               Lawrence R. Sheppard, Pro Se, Deer Lodge,
               Montana
          For Respondent:
               Hon. Joseph P. Mazurek, Attorney General,
               Jennifer Anders, Assistant Attorney General,
               Helena, Montana
               Christopher Miller, Powell County Attorney, Deer
               Lodge, Montana


                            Submitted on Briefs: January 30, 1997
                                         ~ ~ ~ i February: 13, 1997
                                                  d ~ d
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.

     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of the Supreme Court and by a report of its
result in State Reporter Publishing Company and West Publishing
Company.
     Lawrence R. Sheppard (Sheppard), appearing pro se, appeals
from the order of the Third Judicial District Court, Powell County,
denying his request for correction of his escape sentence.      We
affirm.
     The sole issue on appeal is whether Sheppard is entitled to
correction of his felony sentence for escape.
     In 1994, the State of Montana (State) charged Sheppard with
committing the offense of escape, in violation of 5 45-7-306, MCA,
by knowingly removing himself from the Montana State Prison (MSP).
On June 10, 1994, Sheppard pleaded guilty to the charge, admitting
that he knowingly removed himself from official detention. On that
basis, the District Court convicted him of the offense of escape
and imposed a three-year sentence at the MSP, to run consecutively
to the term Sheppard was serving at the time, under the felony
sentencing provisions of 5 45-7-306,MCA.   Sheppard did not appeal.
     On August 18, 1994, Sheppard moved to withdraw his guilty
plea.     The District Court denied the motion on the basis that
Sheppard had not established good cause for withdrawal of the plea.
     On March 14, 1996, Sheppard filed a pro se document with the
                                 2
District Court captioned "Motion for Correction of Sentence" which
he based on 5 46-18-117,MCA. While he still admitted to the facts
constituting the    escape    charge, Sheppard   contended   that   the
District Court had improperly imposed a felony sentence when he
should have been sentenced for misdemeanor escape.       The asserted
basis for that contention was this Court's decision in State v.
Nelson (1996), 275 Mont. 86, 910 P.2d 247.
      After the State responded to his initial filing, Sheppard
filed a "Motion for Correction of Sentence or Habeas Petition Post-
Conviction Relief."      He   subsequently    filed another document
captioned in the same alternative manner.
      The District Court held a hearing at which Sheppard testified.

Thereafter, it concluded that Sheppard properly was sentenced under
the felony sentencing provisions of 5 45-7-306,MCA, and denied the
requested correction of Sheppard's sentence.        Sheppard filed a
timely notice of appeal.
      Is Sheppard entitled to correction of his felony sentence for
      escape?
      While originally captioned a motion for correction of sentence
pursuant to 5 46-18-117,MCA, Sheppard himself subsequently changed
the   caption to reflect the alternative bases of motion            for
correction of sentence, petition for habeas corpus, or petition for
postconviction relief. In any event, we are not bound by a party's
characterization of a pleading or motion.      Moreover, since the law
applicable to relief under these various methods of proceeding may
differ significantly, we must          first determine the nature of
Sheppard's filing with the District Court.
                                   3
     Sheppard challenged the validity of his felony sentence for
the offense of escape.      Under Montana law, collateral attacks to
the validity of a sentence--whetheron constitutional, statutory or
jurisdictional bases--are within the purview of                 §§    46-21-101 et
seq., MCA, Montana's postconviction relief statutes. Indeed,                    §   46-
21-101, MCA, specifically provides that, under the circumstances
set forth therein, a person may petition the court that imposed the
sentence "to vacate, set aside, or correct the sentence . . . . "
The Commission Comments to       §   46-21-101,MCA, further clarify that
the purpose of the statute is to consolidate all remedies beyond
those    incident   to   usual       trial    and   review procedures        which
previously were available for challenging the validity of                            a
sentence of imprisonment.
     Sheppard's effort to challenge the validity of his sentence--
brought some 21 months after the conviction and sentence on his
guilty plea to the escape offense charged--clearlywas beyond those
incident to usual        trial and review procedures; as                 such, it
constitutes a collateral attack.              Therefore, we deem Sheppard's
motion    a petition     for postconviction relief              and    address       it
accordingly.
        Petitions for postconviction relief are subject to a variety
of statutory limitations. For example, they must be filed within
five years of the date of the conviction. See               §   46-21-102, MCA.
Sheppard's petition,       filed       less    than   two   years       after       his
conviction, clearly was timely under 5 46-21-102, MCA.
        Section 46-21-105(2),MCA, provides:
          When a petitioner has been afforded a direct appeal
     of the petitioner's conviction, grounds for relief that
     could reasonably have been raised on direct appeal may
     not be raised in the original or amended petition [for
     postconviction relief].
In Kills on Top v. State (1995), 273 Mont. 32, 59, 901 P.2d 1368,
1385, we stated unequivocally that             §   46-21-105(2),MCA, "clearly
establishes a procedural bar to postconviction claims that could
have been raised on direct appeal." Indeed, we overruled therein
an earlier case which might have been construed as standing for the
proposition that issues which could have been raised on direct
appeal, but      were    not,   could     be       reviewed   in   postconviction
proceedings.     Kills on Tow, 901 P.2d at 1386-87.
     Here, the sentencing issue Sheppard raises via his petition
for postconviction relief could have been raised on appeal. While
criminal defendants who plead guilty cannot ordinarily appeal from
their convictions, an appeal is available where a sentencing error
is asserted which does not affect or aLtempt to invalidate the
underlying plea. See,      e.a., State     v. Owens (1992), 254 Mont. 224,
836 P.2d 595; State ex rel. Greely v. Dist. Ct. of 4th Jud. Dist.
(1979), 180 Mont. 317, 590 P.2d 1104.                   That is precisely the
situation presently before us. Thus, while Sheppard could not have
appealed from the escape conviction on his guilty plea admitting to
the facts which formed the basis for the charge, he could have
appealed   the       sentence   imposed    under       the    felony   sentencing
provisions of    §   45-7-306, MCA.
     Sheppard seeks to raise now--via petition for postconviction
relief--a basis for relief that could reasonably have been raised
on direct appeal;     §   46-21-105(2),MCA, expressly precludes him from
doing so.       We conclude that Sheppard is procedurally barred by
§   46-21-105(2),MCA, from raising his claim of error in sentencing.

On that basis, we hold that the District Court did not err in
denying the relief requested.
       Af   firmed.




We concur:
                      A


f           Chief Justice
