                                          No. 04-731

              IN THE SUPREME COURT OF THE STATE OF MONTANA

                                     2005 MT 283N


DOUGLAS E. HERMAN,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Respondent.



APPEAL FROM:        The District Court of the Thirteenth Judicial District,
                    In and For the County of Yellowstone, Cause No. DV 2004-009,
                    Honorable Susan P. Watters, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                    Douglas E. Herman, Pro Se, Deer Lodge, Montana

              For Respondent:

                    Honorable Mike McGrath, Attorney General; Carol E. Schmidt,
                    Assistant Attorney General, Helena, Montana

                    Dennis Paxinos, County Attorney, Billings, Montana



                                                       Submitted on Briefs: October 5, 2005

                                                                  Decided: November 8, 2005
Filed:


                    __________________________________________
                                     Clerk
Justice W. William Leaphart 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. It 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       On October 16, 2002, Douglas Herman signed an acknowledgment and waiver of

rights and pled guilty to driving while under the influence of alcohol, a felony in violation of

§ 61-8-401, MCA. Herman signed a plea agreement whereby he acknowledged: “I am

charged with the offense of DUI (I) [and] designated a PFO [Persistent Felony Offender] and

the maximum possible penalty provided by law is imprisonment in the State Prison for a term

of 100 years, and/or a fine of 50,000 dollars” pursuant to § 46-18-501, MCA. On February 4,

2003, the District Court for the Thirteenth Judicial District, Yellowstone County, sentenced

Herman to a term of fifteen years in Montana State Prison, with five years suspended.

Herman filed an appeal, but since the filing did not occur within sixty days, this Court

dismissed the appeal as untimely under Rule 5(b), M.R.App.P. Herman then filed a petition

for postconviction relief in the District Court, along with a memorandum in support. After

the court denied Herman postconviction relief, he timely filed a notice of appeal with this

Court.

¶3       On appeal, Herman sets forth several issues, which we restate as follows:



                                               2
¶4     1. Whether Herman has been denied due process of law by the State’s failure to

comply with § 46-13-108, MCA, by not filing notice, at or before the omnibus hearing, that

it sought to designate Herman a persistent felony offender.

¶5     2. Whether the sentencing court lacked statutory authority to impose a fifteen-year

sentence under the persistent felony offender statute.

¶6     3. Whether Herman has been wrongly denied counsel and necessary documents for

filing this appeal.

¶7     We affirm.

                                         ISSUE 1

Whether Herman has been denied due process of law by the State’s failure to comply with

§ 46-13-108, MCA, by not filing notice, at or before the omnibus hearing, that it sought

to designate Herman a persistent felony offender.

¶8     The State charged Herman with violating § 61-8-401, MCA, for driving under the

influence of alcohol or drugs for a fourth or subsequent offense. The record demonstrates

that Herman signed a plea agreement whereby he acknowledged: “I am charged with the

offense of DUI (I) [and] designated a PFO and the maximum possible penalty provided by

law is imprisonment in the State Prison for a term of 100 years, and/or a fine of 50,000

dollars.” Herman contends that the State violated § 46-13-108, MCA, by not filing a notice

“at or before the omnibus hearing” specifying his “alleged prior convictions,” as mandated

by the statute. Section 46-13-108, MCA. The State contends that Herman lacks recourse

because he waived nonjurisdictional defects and defenses when he pled guilty. As precedent,

                                             3
the State cites State v. Wheeler (1997), 285 Mont. 400, 402, 948 P.2d 698, 699, in which we

held that “[a]fter a criminal defendant pleads guilty and thereby admits that he is guilty of the

offense charged, he may only attack the voluntary and intelligent character of his plea and

may not raise independent claims relating to prior deprivation of his constitutional rights.”

Accordingly, because Herman pled guilty to the persistent felony offender designation,

without raising a prior objection to the State’s failure to file notice in compliance with § 46-

13-108, MCA, he waived the issue.

¶9     We have previously addressed non-compliance with § 46-13-108, MCA, in State v.

Niederklopfer, 2000 MT 187, 300 Mont. 397, 6 P.3d 448, where the defendant was convicted

of deliberate homicide and sentenced under the persistent felony offender statutes. Unlike

the present case, the State in Niederklopfer filed notice that it sought a persistent felony

offender designation, but it did not do so until a few weeks after the omnibus hearing.

Niederklopfer, ¶ 4. Subsequent to the notice, Niederklopfer signed a plea of guilty and

waiver of rights. Niederklopfer, ¶ 5. In filing for postconviction relief, Niederklopfer argued

that “the State failed to provide him with timely notice” as required by § 46-13-108, MCA,

and therefore the portion of his sentence attributable to his persistent felony offender status

should be vacated; the State responded that Niederklopfer waived his right to challenge any

constitutional or procedural defects by pleading guilty. Niederklopfer, ¶ 12. In reaching our

conclusion, we noted that “a plea of guilty voluntarily and understandingly made constitutes

a waiver of nonjurisdicitonal defects and defenses” and that “late notice was a procedural

defect,” not jurisdictional. Niederklopfer, ¶¶ 13-14 (citing State v. Turcotte (1974), 164

                                               4
Mont. 426, 428, 524 P.2d 787, 788). Since Niederklopfer did not object to the State’s failure

to file timely notice before pleading guilty, we held that he “waived his challenge to any

constitutional or procedural defects; including timeliness of the State’s notice.”

Niederklopfer, ¶ 15.

¶10    We reach a similar conclusion in this case. Since Herman pled guilty to designation

as a persistent felony offender, he has waived the right to object to the State’s procedural

error in not filing a notice in compliance with § 46-13-108, MCA.

                                           ISSUE 2

Whether the sentencing court lacked statutory authority to impose a fifteen-year sentence

under the persistent felony offender statute.

¶11    Pursuant to the persistent felony offender statutes, §§ 46-18-501 and 46-18-502,

MCA, the District Court sentenced Herman to fifteen years in prison with five years

suspended. Herman argues that the District Court lacked authority to impose a fifteen-year

sentence because the State charged him with driving while under the influence of alcohol

pursuant to § 61-8-731, MCA, which carries a maximum sentence of only thirteen months.

While Herman correctly notes that the State charged him pursuant to § 61-8-731, MCA, he

fails to recognize that the court legally sentenced him to more than thirteen months pursuant

to the persistent felony offender statutes. “[A] district court possesses the statutory authority

to designate and sentence a defendant as a persistent felony offender pursuant to § 46-18-

502, MCA.” State v. Yorek, 2002 MT 74, ¶ 18, 309 Mont. 238, ¶ 18, 45 P.3d 872, ¶ 18. As

discussed above, Herman voluntarily and knowingly pled guilty to a designation as a

                                                5
persistent felony offender. Pursuant to § 46-18-502, MCA, the court may sentence a

persistent felony offender “for a term of not less than 5 years or more than 100 years or shall

be fined an amount not to exceed $50,000, or both . . . .” Thus, the fifteen-year sentence was

within the court’s statutory authority.

                                          ISSUE 3

Whether Herman has been wrongly denied counsel and necessary documents for filing

this appeal.

¶12    Finally, Herman claims he was denied assistance of counsel on direct appeal. As the

District Court noted in its order denying postconviction relief, Herman had assigned-counsel

when he pled guilty. Because the court filings do not indicate that the District Court relieved

counsel, Herman effectively had counsel throughout any appeal process. Although Herman

does not argue, per se, that on appeal he received “ineffective assistance of counsel,” this

appears to be his contention.

¶13    We review claims of ineffective assistance of counsel pursuant to the two-prong test

set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674).

       The first prong of the Strickland test is to determine whether counsel acted
       within the range of competence demanded of attorneys in criminal cases. The
       second prong of the Strickland test requires a defendant to show that counsel’s
       deficient performance prejudiced the defense so as to deny the defendant a fair
       trial. In order to show prejudice, the petitioner must show that there is a
       reasonable probability that, because of the error, the defendant was denied a
       fair trial.

State v. Berg, 1999 MT 282, ¶ 28, 296 Mont. 546, ¶ 28, 991 P.2d. 428, ¶ 28 (internal citations

omitted).

                                              6
¶14    Given that we have found no merit to Herman’s contentions concerning his

designation as a persistent felony offender, even if we assume, arguendo, that he received

ineffective assistance of counsel, he has failed to satisfy the second prong of the Strickland

test. That is, he is unable to show that he was prejudiced.

¶15    Finally, there is no merit to Herman’s contention that he was prejudiced by not having

transcripts of the sentencing hearing. Herman’s contention that the District Court lacked

statutory authority to designate him a persistent felony offender is a purely legal issue which

does not require a review of the sentencing transcript.

¶16    Affirmed.

                                                   /S/ W. WILLIAM LEAPHART


We concur:

/S/ KARLA M. GRAY
/S/ JIM RICE
/S/ PATRICIA O. COTTER
/S/ BRIAN MORRIS




                                              7
