                                           No. 03-550

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2004 MT 93N



DAVID A. MELONE,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Respondent.


APPEAL FROM:         District Court of the Second Judicial District,
                     In and For the County of Silver Bow, Cause No. DC 98-136,
                     Honorable Kurt Krueger, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     David A. Melone, pro se, Deer Lodge, Montana

              For Respondent:

                     Honorable Mike McGrath, Attorney General; Pamela P. Collins, Assistant
                     Attorney General, Helena, Montana

                     Robert McCarthy, County Attorney; Brad Newman, Chief Deputy
                     County Attorney, Butte, Montana



                                                   Submitted on Briefs: March 3, 2004


                                                             Decided: April 13, 2004


Filed:

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

¶1        Pursuant to Section 1, 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        David A. “Sonny” Melone (Melone) appeals from the Second Judicial District, Silver

Bow County, where his petition for postconviction relief was denied.

¶3        The issue on appeal is restated as follows:

¶4        Whether the District Court erred in denying Melone’s petition for postconviction

relief.

                    FACTUAL AND PROCEDURAL BACKGROUND

¶5        In October 1998, Thomas Brosovic (Brosovic) was stabbed while riding in a taxi cab.

He suffered four serious lacerations to his face from a knife or razor. Melone was

subsequently charged by information with felony assault for the attack on Brosovic. In

February 1999, Melone entered an Alford plea to felony assault as charged in the

information. During a sentencing hearing that March, the District Court ordered that Melone

be sentenced to the Montana State Prison for ten years and for an additional term of ten years

for being a persistent felony offender.

¶6        The following day, Melone filed a motion to withdraw his Alford plea and to proceed

to trial before a new judge in a different venue. The District Court denied the motion to

allow Melone to withdraw his plea but found that he was not afforded the opportunity to


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object to the allegations contained in the persistent felony offender notice; and, therefore, the

District Court vacated Melone’s sentence and ordered a re-sentencing hearing in April. At

the re-sentencing hearing, Melone represented himself. He objected to the persistent felony

offender designation but did not dispute the fact that he had prior convictions. The District

Court judged Melone to be guilty of felony assault. The District Court, again, sentenced

Melone to the Montana State Prison for ten years and for an additional term of ten years for

being a persistent felony offender. Melone then filed an appeal with this Court claiming that

his plea was not knowing and voluntary and that he should have been allowed to withdraw

his plea. This Court reversed and remanded to the District Court to permit Melone to

withdraw his plea. State v. Melone, 2000 MT 118, 299 Mont. 442, 2 P.3d 233.

¶7     In June 2000, Melone, with counsel present, entered a plea of not guilty to felony

assault. Thereafter, on July 6, 2000, Melone appeared with counsel and requested leave to

withdraw his previously entered “not guilty” plea and enter a “guilty” plea. The District

Court granted this request and orally sentenced Melone “to Montana State Prison for a period

of ten years.” A written judgment and order of commitment was subsequently entered. It

stated that Melone

       shall be committed to the custody of the Montana Department of Corrections
       for placement at the Montana State Prison for a term of (10) years, pursuant
       to Section 45-5-202(3)(a), MCA.

       ....

             IT IS FURTHER ORDERED that the Defendant is remanded to the
       custody of the Butte-Silver Bow Sheriff for transfer to the custody of the



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       Montana Department of Corrections, which shall place the Defendant at the
       Montana State Prison and carry out the terms of this Judgment.

¶8     On May 29, 2002, Melone filed a petition in the District Court for postconviction

relief. He alleged that the District Court lacked jurisdiction to sentence him to the

Department of Corrections for ten years because under § 46-18-201(e), MCA (1997),1 the

District Court could only commit Melone to the Department of Corrections for a period not

greater than five years. The State responded that the sentence imposed was a straight prison

commitment, not a Department of Corrections commitment, and that Melone’s petition was

untimely because it was not filed within one year from the date the conviction became final.

The District Court denied the petition finding that, even though there was a conflict between

the oral pronouncement and the written sentence, the oral pronouncement was the legally

effective sentence. The District Court then ordered that an amended judgment be prepared

that would conform with the sentence imposed at the sentencing hearing on July 6, 2000.

In July 2003, the District Court entered an amended judgment and order of commitment.

Melone appeals from the order denying postconviction relief.

                               STANDARD OF REVIEW

¶9     We review the denial of a petition for postconviction relief to determine whether the

district court’s findings of fact are clearly erroneous and whether its conclusions of law are




       1
        Melone cited § 46-18-201(3)(d)(i), MCA (2003), in his petition; however, the
correct statute is § 46-18-201(e), MCA (1997), because that was the statute in effect at
the time the offense was committed. Although the wrong statute was cited, the two
statutes are substantially similar, and we will address the issue as if Melone had cited the
correct statute.

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correct. Porter v. State, 2002 MT 319, ¶ 13, 313 Mont. 149, ¶ 13, 60 P.3d 951, ¶ 13 (citing

State v. Wright, 2001 MT 282, ¶ 9, 307 Mont. 349, ¶ 9, 42 P.3d 753, ¶ 9).

                                        DISCUSSION

¶10       Whether the District Court erred in denying Melone’s petition for postconviction

relief.

¶11       Melone argues that the written judgment sentencing Melone to the Department of

Corrections for ten years violates § 46-18-201(e), MCA, which limits a commitment to the

Department of Corrections to no more than five years. In denying Melone’s petition, the

District Court cited our decision in State v. Lane, 1998 MT 76, 288 Mont. 286, 957 P.2d 9.

In Lane, we held that “the sentence orally pronounced from the bench in the presence of the

defendant is the legally effective sentence and valid, final judgment.” Lane, ¶ 40. Here, the

oral sentence Melone received sentenced him to the Montana State Prison for ten years and

so § 46-18-201(e), MCA, does not apply.

¶12       The entry of judgment date was July 6, 2000, and under § 46-21-102(1), MCA, a

petition for relief must be filed “within 1 year of the date that the conviction becomes final.”

Melone did not file his petition for postconviction relief until May of 2002, almost a full two

years after the July 2000 judgment. As such, Melone’s claim is time-barred.

¶13       Melone now argues that the District Court’s order to amend the written judgment was

actually a re-sentencing and that, under § 46-18-116(2), MCA, he should have been present.

While Melone correctly states the law under § 46-18-116(2), MCA, he ignores the obvious–

that the amended judgment was not a re-sentencing. There was no re-sentencing because the


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written judgment did not alter the oral sentence originally imposed. The written judgment

was amended only to conform to the controlling oral sentence. Therefore, Melone’s

argument fails.

¶14    Lastly, Melone argues that his counsel was ineffective because counsel did not

recognize that the written judgment differed from the oral sentence. There is no merit to this

argument. Even if Melone’s counsel would have brought the discrepancy to the District

Court’s attention before the time bar, at best, the written judgment would have been

modified, just as it has been, to conform to the controlling oral sentence.

¶15    Accordingly, the District Court did not err in denying Melone’s petition for

postconviction relief.



                                                         /S/ W. WILLIAM LEAPHART


We concur:

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




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