                                                                                       October 22 2009




                                         DA 09-0071

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        2009 MT 353N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

CHARLES LEE REYNOLDS, JR.,

              Defendant and Appellant.


APPEAL FROM:          District Court of the First Judicial District,
                      In and For the County of Lewis and Clark, Cause Nos. BDC 95-282;
                      BDC 96-7; CDC 01-113
                      Honorable Jeffrey M. Sherlock and Thomas C. Honzel, Presiding Judges


COUNSEL OF RECORD:

               For Appellant:

                      J. Blaine Anderson, Jr., Attorney at Law; Dillon, Montana

               For Appellee:

                      Hon. Steve Bullock, Montana Attorney General; Sheri K. Sprigg,
                      Assistant Attorney General; Helena, Montana

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



                                                   Submitted on Briefs: September 30, 2009

                                                              Decided: October 21, 2009


Filed:

                      __________________________________________
                                        Clerk
Justice Jim Rice 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    Petitioner Charles Lee Reynolds, Jr. (Reynolds), appeals from orders of First

Judicial District Court, Lewis and Clark County, denying his motions to withdraw his

admissions to two revocation petitions, to vacate his sentences and to allow him to re-

plead and be sentenced to a probationary sentence.

¶3    In 1997 Reynolds was found guilty in separate jury trials of forgery and his

seventh DUI. For the DUI and forgery offenses, the Hon. Jeffrey Sherlock, District Court

Judge, sentenced Reynolds to ten years, with nine and one-half years suspended, and ten

years, all suspended, respectively. The two sentences were to run concurrently to each

other, but consecutively to a separate ten year prison sentence Reynolds had received for

theft. In 2002, while on parole on his theft sentence, Reynolds pled guilty to fraudulently

obtaining dangerous drugs, for which the Hon. Thomas Honzel, District Court Judge,

sentenced him to five years, all suspended, at Montana State Prison. This sentence was to

be served concurrently with his earlier suspended sentences for DUI and forgery. On

February 27, 2002, Reynolds began serving his three concurrent suspended sentences for

DUI, forgery, and fraudulently obtaining dangerous drugs. On June 17, 2002, a petition


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to revoke Reynolds’ suspended sentences was filed and was later amended to add that

Reynolds had been convicted of federal offenses for identity theft and bank fraud. In

entering a “true” plea to the petition, Reynolds signed an Acknowledgement of Waiver of

Rights which stated:

       The State and Defendant agree that the sentence be revoked but that, in
       BDC 95-282, the Defendant be given nine and one-half (9 ½) years to
       Montana State Prison. In BDC 96-7, the Defendant be given ten (10) years
       to Montana State Prison. These sentences run concurrent with each other
       and concurrent with the sentence Defendant received in federal court.

In its order, the court explained that “[t]he sentences imposed . . . shall run concurrently

with each other and with the federal sentence imposed upon defendant.”

¶4     However, following sentencing, Reynolds was transferred to Montana State Prison

on his State sentences. On August 4, 2003, about two weeks after sentencing, Reynolds

wrote a letter to Judge Honzel, stating that he believed there had been a mistake and that

he should have been sent to federal prison first. Reynolds’ letter indicated that “[f]ederal

time does not run concurrent to state time” and that “I’m only getting credit for state time

and no federal time.” Despite this concern, Reynolds chose to pursue a remedy in the

federal system and did not appeal his sentence or move to withdraw his plea until 2008,

when he filed the motions herein. Reynolds continued to serve his State prison sentence

and ultimately did not receive credit toward his federal sentence for the time he served in

Montana State Prison.

¶5     In September 2008, Reynolds filed motions in both Judge Honzel’s court and

Judge Sherlock’s court requesting that he be permitted to withdraw his revocation plea,

re-enter a plea, and be granted a probationary sentence. With regard to the cases before


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them, the respective courts both reasoned that because Reynolds’ motions were filed

nearly five years after judgment was entered in his revocation case, the motions were

time-barred by the statutory limitations of § 46-15-105(2), MCA.

¶6     Reynolds challenges both orders, and for purposes of appeal these cases have been

consolidated. Reynolds argues that the District Courts erred in determining his motions

were time-barred and that principles of equitable tolling require us to reach the merits of

his motions to withdraw his plea and vacate his sentence to avoid a miscarriage of justice.

The State maintains that Reynolds’ motions are time-barred under § 46-15-105(2), MCA,

because more than a year has elapsed since his original judgment became final and that,

in any event, this case is moot because the Court cannot grant effective relief.

¶7     This Court reviews a district court’s denial of a petition for postconviction relief or

a motion to withdraw a guilty plea to determine whether the district court’s findings of

fact are clearly erroneous and its conclusions of law are correct. Hirt v. State, 2009 MT

116, ¶ 24, 350 Mont. 162, 206 P.3d 908.

¶8     Mootness is a threshold issue that this Court considers prior to deciding the merits

of the matter on appeal. Country Highlands Homeowners Assn. v. Bd. of Co. Commr.,

2008 MT 286, ¶ 16, 345 Mont. 379, 191 P.3d 424. This Court has held that a case is

moot when effective relief cannot be granted or the parties cannot be restored to their

original position. Country Highlands Homeowners Assn., ¶ 16. Here, this Court can

neither grant effective relief nor restore the parties to their original position. Even

assuming arguendo that the District Courts would grant Reynolds the probationary

sentences he seeks upon withdrawal of his pleas, there is no guarantee he would receive


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federal credit for the time served at Montana State Prison. That is a decision for the

federal system and is beyond this Court’s power.          Further, Reynolds has already

discharged the State sentences he challenges. As such, this Court cannot grant effective

relief or restore Reynolds to his original position. Therefore, we conclude that Reynolds’

request to withdraw his revocation admissions and vacate his sentence is moot.

¶9     It is appropriate to decide this case pursuant to our Order of February 11, 2003,

amending Section 1.3 of our 1996 Internal Operating Rules and providing for

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

that the appeal is without merit because the findings of fact are supported by substantial

evidence, the legal issues are clearly controlled by settled Montana law which the District

Courts correctly interpreted, and there was clearly no abuse of discretion by the District

Courts.

¶10    Affirmed.

                                                 /S/ JIM RICE


We concur:

/S/ W. WILLIAM LEAPHART
/S/ PATRICIA O. COTTER
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS




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