                                           No. 02-214

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2002 MT 194N


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

CURTIS J. CHRISTIANSON,

              Defendant and Appellant.



APPEAL FROM:         District Court of the First Judicial District,
                     In and for the County of Lewis and Clark,
                     The Honorable Jeffrey M. Sherlock, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Curtis J. Christianson (pro se), Missoula, Montana

              For Respondent:

                     Hon. Mike McGrath, Attorney General; Cregg W. Coughlin,
                     Assistant Attorney General, Helena, Montana

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


                                               Submitted on Briefs: July 25, 2002

                                                          Decided: September 5, 2002
Filed:

                     __________________________________________
                                       Clerk
Justice Jim Regnier 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    Curtis J. Christianson, appearing pro se, appeals from the

February 5, 2002, Order entered by the Montana First Judicial

District Court, Lewis and Clark County, denying his motion to amend

sentence, or in the alternative, petition for habeas corpus or

petition for postconviction relief.                We affirm.

¶3    The following issues are presented on appeal:

¶4    1.     Did the District Court err in denying Christianson’s

petition for postconviction relief?

¶5    2.     Did the District Court err in denying Christianson’s

motion to amend his sentence?
                                     BACKGROUND

¶6    On October 23, 1996, Christianson was charged with the offense

of deliberate homicide in connection with the death of his three

year old daughter.        On August 28, 1997, Christianson entered a plea

of guilty to an amended charge of mitigated deliberate homicide in

the District Court.           After conducting a sentencing hearing, the

court entered an Order on October 9, 1997, sentencing Christianson

to the Montana State Prison for forty years, with ten years


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suspended.    The court further designated Christianson as ineligible

for parole.

¶7   On November 17, 1997, Christianson filed an application for

sentence review.     On March 13, 1998, the Sentence Review Division

remanded the case to the District Court with directions that the

court provide reasons why it declared Christianson ineligible for

parole or participation in a supervised release program pursuant to

§ 46-18-202(2), MCA.     On March 19, 1998, the District Court entered

an amended judgment setting forth its reasons why Christianson was

ineligible for parole.        Christianson appealed from the court’s

March 19, 1998, Order.        On July 1, 1999, we issued an Opinion

affirming the District Court in State v. Christianson, 1999 MT 156,

295 Mont. 100, 983 P.2d 909 .
¶8   Subsequently,      Christianson       filed   a   motion   to   amend   the

sentence, or in the alternative, a petition for habeas corpus or a

petition for postconviction relief in the Montana Fourth Judicial

District Court, Missoula County.           The court denied his motion on

December 11, 2001, concluding that it had no jurisdiction to amend

a sentence imposed by the Montana First Judicial District Court,

Lewis and Clark County.       Additionally, the court concluded that a

petition for writ of habeas corpus was not an available remedy to

Christianson    since    he   was   challenging        the   validity   of   his

conviction.

¶9   On December 28, 2001, Christianson filed in the Montana First

Judicial District Court, Lewis and Clark County, a motion to amend

his sentence, or in the alternative, a petition for habeas corpus



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or a petition for postconviction relief. Therein, Christianson

alleged that he received ineffective assistance of counsel during

plea negotiations.      The District Court denied Christianson’s motion

on February 5, 2002.      The court concluded that it lacked statutory

authority to amend Christianson’s sentence, absent a clerical

error, pursuant to § 46-18-116(3), MCA.                Additionally, the court

concluded that Christianson could not attack the validity of his

conviction by raising claims of ineffective assistance of counsel

through a petition for a writ of habeas corpus.                   The court further

concluded that Christianson’s petition for postconviction relief

was time-barred by § 46-21-102, MCA. Christianson appeals.
                            STANDARD OF REVIEW

¶10   We   review   a   district    court’s         denial   of    a   petition   for

postconviction relief to determine whether its findings of fact are

clearly erroneous and its conclusions of law are correct.                         See

State v. Whitehorn, 2002 MT 54, ¶ 12, 309 Mont. 63, ¶ 12, 43 P.3d

922, ¶ 12 (citation omitted).

                                   DISCUSSION

                                   ISSUE ONE

¶11   Did the District Court err in denying Christianson’s petition

for postconviction relief?

¶12   Christianson      alleges    that       the    District     Court   erred    in

determining that his petition for postconviction relief is time

barred by § 46-21-102, MCA.         He argues that he is entitled to the

five year statute of limitations in effect at the time of his

offense.    In addition, Christianson claims that the statute of



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limitations    should    be    tolled     because       he   was    incarcerated    in

Tennessee and was without access to Montana legal materials.                        He

further alleges that the statute of limitations should be waived

because he is guilty of the offense of negligent homicide instead

of the offense of mitigated deliberate homicide.

¶13   In response, the State asserts that Christianson’s petition is

barred by the one year statute of limitations in effect at the time

he filed his petition for postconviction relief.                    The State points

out that Christianson’s conviction became final on September 29,

1999.     However, Christianson filed his petition on December 28,

2001,   more   than    one    year   after      his    conviction     became   final.

Moreover, the State contends that the statute of limitations may

not be tolled when Christianson was incarcerated in another state

since the statute of limitations for postconviction petitions is a

jurisdictional limit on litigation, and its waiver may only be

justified by a clear miscarriage of justice, pursuant to our

holding in State v. Wells, 2001 MT 55, 304 Mont. 329, 21 P.3d 610,

overruled on other grounds by Whitehorn, ¶ 49.                     The State further

contends that Christianson is not entitled to the miscarriage of

justice    exception    because      he   has    not    established     that   he   is

actually innocent of the offense of mitigated deliberate homicide.

 We agree.
¶14   To determine whether a petition for postconviction relief is

timely, we look to the statute of limitations in effect at the time

the petition is filed, not to the statute in effect at the time of

the conviction.       See State v. Charlo, 2000 MT 192, ¶ 11, 300 Mont.



                                          5
435, ¶ 11, 4 P.3d 1201, ¶ 11 (citing Hawkins v. Mahoney, 1999 MT

82,    ¶   9,     294   Mont.       124,   ¶    9,    979     P.2d   697,    ¶     9).     Since

Christianson’s petition for postconviction relief was filed on

December 28, 2001, we will look at the statute of limitations in

effect at that time.            Section 46-21-102, MCA (2001), provides that

a petition for postconviction relief “may be filed at any time

within 1 year of the date that the conviction becomes final.”

Section 46-21-102(1), MCA , states that a conviction becomes final

when:
       (a) the time for appeal to the Montana supreme court
       expires;

       (b) if an appeal is taken to the Montana supreme court,
       the time for petitioning the United States supreme court
       for review expires; or

       (c) if review is sought in the United States supreme
       court, on the date that that court issues its final order
       in the case.

¶15    Here, Christianson’s conviction became final on September 29,

1999,      in     accordance        with   §    46-21-102(1)(b),            MCA.         However,

Christianson did not file his petition until December 28, 2001,

more       than     one      year     after       his        conviction      became        final.

Consequently,           we   conclude          that     Christianson’s        petition        for

postconviction relief is time-barred pursuant to § 46-21-102, MCA.



¶16    Additionally,          we     conclude         that    the    enforcement         of   the

procedural bar will not result in a fundamental miscarriage of

justice in this case.               We have previously held that the statute of

limitations for postconviction proceedings is a jurisdictional

limit on litigation and is waived only where there is a clear


                                                 6
miscarriage of justice, “one so obvious that the judgment is

rendered a complete nullity.”               Wells, ¶ 10 (quoting State v.

Rosales, 2000 MT 89, ¶ 7, 299 Mont. 226, ¶ 7, 999 P.2d 313, ¶ 7).

A fundamental miscarriage of justice arises only when a jury could

find, in light of new evidence, that the defendant is actually

innocent of the crime.     See State v. Redcrow, 1999 MT 95, ¶ 37, 294

Mont. 252, ¶ 37, 980 P.2d 622, ¶ 37.               Also see Section 46-21-

102(2), MCA.      Therefore, the fundamental miscarriage of justice

exception is concerned with actual and not legal innocence.                 See

Redcrow, ¶ 33 (citation omitted).
¶17   Christianson does not present newly discovered evidence that

shows he is actually innocent of mitigated deliberate homicide.

Rather,     he   argues   he   is     legally    innocent   of    the   crime.

Accordingly, we hold that the District Court was correct when it

concluded that Christianson’s petition for postconviction relief is

barred by the one year statute of limitations pursuant to § 46-21-

102, MCA.

¶18   In passing we note that the District Court properly denied

Christianson’s petition for habeas corpus.            Pursuant to § 46-22-

101(2), MCA, habeas corpus relief is not available to attack the

validity of a conviction.

                                    ISSUE TWO

¶19   Did the District Court err in denying Christianson’s motion to

amend his sentence?

¶20   Christianson    argues   that     §    46-18-117,   MCA,   provides   the

District Court with authority to amend his sentence.             He points out



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that § 46-18-117, MCA, has been repealed.        He argues, however, that

§ 46-18-117, MCA, was in effect at the time of the commission of

his crime, and thus its effect continues in force throughout his

sentence.

¶21   We have held that once a valid sentence has been pronounced,

the court imposing that sentence has no jurisdiction to modify it,

except as provided by statute.       See State v. Fertterer (1993), 260

Mont. 397, 400-401, 860 P.2d 151, 154 (citations omitted).          Section

46-18-117, MCA (1999), stated that a court “may correct a sentence

imposed in an illegal manner within 120 days after the sentence is

imposed or after remand from an appellate court.”          However, § 46-

18-117, MCA (1999), was repealed in 2001 and replaced by § 46-18-

116(3), MCA.      The Compiler’s Comments to § 46-18-116, MCA, make

clear that the 2001 amendments became effective March 20, 2001, and

apply “to all cases currently pending on direct review or that are

not yet final.”    Therefore, since Christianson alleged his sentence

was   illegal,    we   conclude   that   the   District   Court   correctly

concluded that it did not have statutory authority, pursuant to §

46-18-116(3), MCA, to amend Christianson’s sentence.
¶22   Affirmed.


                                               /S/ JIM REGNIER

We Concur:


/S/   KARLA M. GRAY
/S/   JAMES C. NELSON
/S/   W. WILLIAM LEAPHART
/S/   TERRY N. TRIEWEILER




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