                                           No. 05-737

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2006 MT 332N


MARK TREINER,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Respondent.




APPEAL FROM:         The District Court of the First Judicial District,
                     In and For the County of Lewis and Clark, Cause No. CDV 2004-509,
                     Honorable Thomas C. Honzel, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Mark Treiner (pro se), Deer Lodge, Montana

              For Respondent:

                     Hon. Mike McGrath, Montana Attorney General, Micheal S. Wellenstein,
                     Assistant Attorney General, Helena, Montana

                     Leo J. Gallagher, Lewis and Clark Attorney, Helena, Montana




                                                         Submitted on Briefs: October 25, 2006

                                                                  Decided: December 12, 2006

Filed:

                     __________________________________________
                                        Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. 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     Mark Treiner appeals an order of the District Court for the First Judicial District,

Lewis and Clark County, denying his Petition for Postconviction Relief as untimely. On

August 22, 2002, Treiner pled guilty to three felony counts: criminal distribution of

dangerous drugs; sexual assault of a minor (common scheme); and sexual abuse of

children (common scheme). The District Court sentenced Treiner to twenty years in

prison for the drug offense; forty years in prison for the sexual assault offense; and forty

years in prison for the sexual abuse offense. The court suspended both of the forty-year

terms and declared Treiner ineligible for parole during his twenty-year prison term.

¶3     The District Court also ordered Treiner to pay restitution for the counseling that

his victims had undergone and would undergo in the future. To satisfy the financial

obligations imposed by the judgment, the court ordered the forfeiture and sale of

Treiner’s vehicles and firearms as well as the forfeiture of his bank accounts and any

future inheritance he might receive. The District Court entered its written judgment on

October 22, 2002, and later amended that judgment on October 25, 2002, to clarify the

sentences, and again on November 6, 2002, to substitute the phrase “ineligible for parole”

for “illegible for parole.” Treiner did not appeal his convictions or sentence.


                                             2
¶4     On June 22, 2004, the State moved the District Court for permission to destroy

Treiner’s firearms rather than sell them. The motion was made at the request of the

Helena Police Department who did not want to create a liability by selling the guns to the

public. In the motion, the State represented that neither Treiner nor his counsel objected.

The court granted the motion allowing the destruction of the firearms and stated that the

remaining portions of the amended judgment would remain in full force and effect.

¶5     On July 27, 2005, Treiner filed his pro se Petition for Postconviction Relief and

Supporting Memorandum wherein he claimed that the District Court violated his due

process rights when it restricted his parole eligibility and failed to set forth its reasons for

doing so. Treiner also claimed that the court violated his due process rights when it

ordered him to pay restitution and to forfeit his property to satisfy his restitution

obligation. In response, the State argued that Treiner’s petition was time barred by § 46-

21-102, MCA.         The District Court agreed and denied Treiner’s Petition for

Postconviction Relief. The District Court also concluded that, contrary to Treiner’s

assertions, the sentence imposed complied with the law.

¶6     We have determined to decide this case pursuant to Section 1, Paragraph 3(d) of

our 1996 Internal Operating Rules, as amended in 2003, which provides for

memorandum opinions.

¶7     We review a district court’s denial of a petition for postconviction relief to

determine whether the court’s findings of fact are clearly erroneous, and whether its

conclusions of law are correct. Camarillo v. State, 2005 MT 29, ¶ 8, 326 Mont. 35, ¶ 8,




                                               3
107 P.3d 1265, ¶ 8 (citing State v. Root, 2003 MT 28, ¶ 7, 314 Mont. 186, ¶ 7, 64 P.3d

1035, ¶ 7).

¶8     In the instant case, we hold that the District Court violated § 46-18-116(2), MCA

(regarding the correction of a sentence or judgment), when it amended the judgment on

June 22, 2004, to allow for the destruction of firearms. However, under M. R. App. P.

5(b), Treiner had 60 days from June 22, 2004, to appeal that decision, which he failed to

do. Because his claim that the District Court erred in ordering his firearms destroyed

rather than sold could have been raised in a direct appeal, it cannot be brought on a

petition for postconviction relief. Section 46-21-105(2), MCA, the issue preclusion

provision of the postconviction statutes, provides in part:

              When a petitioner has been afforded the opportunity for a direct
       appeal of the petitioner’s conviction, grounds for relief that were or could
       reasonably have been raised on direct appeal may not be raised, considered,
       or decided in a proceeding brought under [the chapter on postconviction
       proceedings].

¶9     We have previously stated that postconviction relief is not intended as a substitute

for direct appeal. DeShields v. State, 2006 MT 58, ¶ 15, 331 Mont. 329, ¶ 15, 132 P.3d

540, ¶ 15. Rather, it is intended as an opportunity to explore only those issues that are

not properly considered on direct appeal. See DeShields, ¶ 15.

¶10    As to the other claims that Treiner raises concerning restitution and restrictions on

his parole eligibility, we hold that those claims are also procedurally barred by § 46-21-

105(2), MCA, because they could have been raised on direct appeal from the

November 6, 2002 judgment.




                                              4
¶11    While the District Court denied Treiner’s petition because it was not filed within

one year of the final judgment pursuant to § 46-21-102(1)(a), MCA, we will not reverse a

district court when it reaches the right result, even if it reached that result for the wrong

reasons. Palmer v. Bahm, 2006 MT 29, ¶ 20, 331 Mont. 105, ¶ 20, 128 P.3d 1031, ¶ 20

(citing State v. Veis, 1998 MT 162, ¶ 16, 289 Mont. 450, ¶ 16, 962 P.2d 1153, ¶ 16).

Accordingly, we hold that the District Court did not err in denying Treiner’s Petition for

Postconviction Relief.

¶12    Affirmed.

                                                  /S/ JAMES C. NELSON


We Concur:

/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ BRIAN MORRIS




                                             5
