                            NO.    95-444
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1996


STATE OF MONTANA,
          Petitioner and Appellant,

     v.
LAWRENCE R. SHEPPARD,
          Defendant and Respondent.



APPEAL FROM:   District Court of the Fourth Judicial District,
               In and for the County of Missoula,
               The Honorable John S. Henson, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               David L. Ohler, Special Assistant Attorney
               General, Lois Adams and Diana P. Leibinger,
               Department of Corrections, Helena, Montana
               Robert Deschamps, III, Missoula County
               Attorney; Betty Wing, Deputy County Attorney,
               Missoula, Montana
          For Respondent:
               William Boggs, Attorney at Law,
               Missoula, Montana


                              Submitted on Briefs:     March 21, 1996
                                            Decided:   June 20, 1996
Filed:
Justice Terry N. Trieweiler    delivered the opinion of the Court.
     Lawrence Sheppard was     found guilty and sentenced by the
District Court for the Fourth Judicial District in Missoula County
to thirty years in the Montana State Prison for the crime of sexual
intercourse without consent.    After two years of incarceration for
his conviction, Sheppard filed a document with the Fourth Judicial
District Court in which he moved the court to order that he be
permitted to attend his annual parole review with counsel and that
he be permitted to enroll in the Prison's sexual offender program.
On July 7, 1993, the District Court granted Sheppard's motions. On
June 20, 1995, Sheppard filed a motion with the District Court in
which he sought another order from the court directing the Prison
to enroll him in the sexual offender program.     On July 14, 1995,
following a hearing, the District Court issued the requested order.
The State appeals the District Court's order.    We affirm the order
of the District Court.
     This opinion is limited to the issue of whether service was
properly effected in this case.
                         FACTUAL   BACKGROUND
     On September 13, 1989,     Larry Sheppard was charged in the
District Court for the Fourth Judicial District with the offense of
sexual intercourse without consent.     A jury found Sheppard guilty
of the offense on December 8, 1989, and on January 31, 1990, the
District Court sentenced Sheppard to thirty years in the Montana
State Prison with fifteen years suspended.       The   District   Court


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designated Sheppard a nondangerous offender for purposes of parole
eligibility.

        Sheppard had his first parole hearing on October 30, 1991.

Following the hearing, the State of Montana Board of Pardons issued

a written decision in which it denied Sheppard parole.                    Although
Sheppard had successfully completed Phase I of the Prison sexual

offender     program,    the Board of Pardons appeared to make further
consideration of his parole contingent on completion of Phase II of

that program. However, although Sheppard applied several times for

admission to Phase II, he was denied admission to the program due

to his refusal to admit guilt to the crime for which he had been

convicted.         Sheppard       admitted   misdemeanor       culpability      but

maintained    he   did   not   commit   sexual   intercourse    without    consent

because no penetration had occurred.
        Sheppard was eligible for annual review of his parole status

in October 1992.         On September 24, 1992, Sheppard's counsel wrote

to the Board of Pardons requesting that he be permitted to

represent Sheppard at the October parole hearing.                 On October 5,

1992,    the Board of Pardons denied that request and indicated that

neither would Sheppard be permitted to attend the hearing.

        On October 14, 1992, Sheppard filed a document with the Fourth

Judicial     District     Court   entitled   "Alternative   Motion    or     Habeas

Petition," in which he alleged that (1) his constitutional rights
were violated when he and his counsel were not permitted to be

present at his annual parole review; and (2) his Fifth Amendment


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and     Due     Process     rights     were       violated       when      he    was    denied
participation in Phase II of the sexual offender program until he
admitted that he was guilty of the crime for which he had been
convicted.       On July 7, 1993, the District Court issued its opinion
and order.       The court ordered that Sheppard be permitted to attend
his annual parole review with counsel pursuant to § 46-23-204, MCA.
The     court     further     ordered       that     Sheppard        was        "entitled to
participate in the           [sexual offender] program regardless of his
resolve to deny guilt."
        Despite the court's order,                 Sheppard       was   not admitted to
Phase II of the sexual offender program.                         Therefore,      on June 20,
1995,    Sheppard filed a document, entitled "Motions," with the
Fourth    Judicial    District       Court.        Among     other      motions,       Sheppard
sought an order from the court "directing the Montana State Prison
to permit [Sheppard] to be enrolled in the I.T.U. Sexual Offender
Program Phase II."          Sheppard served his motion on the Deputy County
Attorney for Missoula County who had prosecuted him, but did not
serve the attorney for the Department of Corrections.                             The County
Attorney appeared at the hearing on July 11, 1995, and advanced the
State's       position      that      'I [Sheppard]        has     refused        to    accept
responsibility for his             crime,   and consequently cannot be admitted
to the Sexual Offender Program, Phase II, I.T.U."
        On July 14, 1995, the District Court issued an order directing
that Sheppard be admitted into and allowed to participate in
Phase II of the sexual offender program at Montana State Prison.


                                              4
In that order, the court stated clearly that it was reaffirming and
clarifying its previous July 7, 1993, order and that the rationale
for its order remained unchanged.
                                DISCUSSION
        On July 7, 1993,    the District Court entered an opinion and
order in which it concluded, in part,             that Sheppard's choice to
exercise his Fifth Amendment rights should not preclude his
participation in Phase II of Montana State Prison's sexual offender
program.    When the Montana State Prison failed to enroll Sheppard
in the sexual offender program following that order, the District
Court entered another order reaffirming its previous decision.
Although the State of Montana did not appeal the court's July 7,
1993,     order, it   now     appeals       the   court's   July 14,     1995,
reaffirmation of that order and claims: (1) that the District Court
did not have jurisdiction to order that Sheppard be enrolled in
Phase II of the sexual offender program; (2) that the court's order
violated the Montana Constitution's separation of powers clause,
Article III, Section 1; and (3) that service of Sheppard's second
motion was improper because it was not made on the attorney for the
Department of Corrections.
        The issue of the court's jurisdiction to order that Sheppard
be enrolled in the sexual offender program and the separation of
powers issue are substantive issues which the State could have
raised in an appeal from the District Court's 1993 order.              Because
the State failed to timely appeal that order,                as provided by


                                        5
Rule 5(b), M.R.App.P., we hold that the State is bound by the 1993
order.        The District Court's 1995 order was simply an enforcement
of its earlier decision which had become final due to the State's
failure to appeal.           Accordingly,   we   decline to address   the
substantive issues raised by the State, and on appeal address only
the procedural issue of whether service of Sheppard's second motion
was improper because Sheppard failed to serve the attorney for the
Department of Corrections.
        Rule 5(b), M.R.Civ.P., provides in part that:     "Whenever     .
service is        required or    permitted to be made upon a party
represented by an attorney the service shall be made upon the
attorney . . .'I         In this case, Sheppard filed a motion with the
Fourth Judicial District Court on June 20, 1995.         Sheppard   served
a copy of the motion on the Deputy County Attorney in Missoula
County who had prosecuted him, but did not serve the attorney for
the Department of Corrections who had responded to his 1993 motion.
On    appeal, the Department contends that Sheppard's failure to serve
its attorney in 1995 in the second action deprived the State of the
opportunity to present evidence at the district court hearing.        The
Department further contends that 1( [tlhe denial of an opportunity to
be heard was material to the Court's decision."
        Whether improper service is a reversible error requires an
examination of the facts and the Montana Rules of Civil Procedure.
Phenniciev.   Phennicie (1979), 185 Mont. 120, 124, 604 P.2d 787, 789. In

this case,       Sheppard served a copy of his motion to compel the


                                       6
Montana State Prison to enroll him in the sexual offender program
on the Missoula Deputy County Attorney who had prosecuted Sheppard

on behalf of the State in the underlying criminal proceeding.               The

Deputy County Attorney appeared at the district court hearing on

July 11, 1995, and presented the State's position that "[Sheppard]

has   refused    to     accept     responsibility    for     his   crime,   and

consequently     cannot be admitted to [Phase II of] the Sexual

Offender    Program."       At the hearing,   the County Attorney made no
suggestion that she lacked authority to represent the State in this

matter.
      Pursuant to 5 7-4-2716(l), MCA, a county attorney is required

to

      attend the district court and . . . represent the state
      in all matters and proceedings to which it is a party or
      in which it may be beneficially interested, at all times
      and in all places within the limits of his county.

In this case,        Sheppard filed his motion against the State of
Montana in the District Court in Missoula County and served the

County    Attorney    for   that   county.    Clearly,     pursuant to 5 7-4-

2716(1),    MCA, the County Attorney had authority to represent the

State.     Therefore, because the County Attorney in this case had the

authority to and did in fact represent the State at the District

Court hearing, the State was not denied an opportunity to be heard

in this matter.

      Furthermore, the Department of Corrections had already had the

opportunity to advance its position in 1993 when Sheppard brought
his first motion and when the same District Court addressed the

                                        7
identical    issue.    Prior   to the District Court's ruling,    the
Department of Corrections filed several documents in support of its

position.     It is clear from the District Court's 1993 order that

the court fully considered the Department's arguments before it

rendered its decision and order.        The court's 1995 order merely

enforced its earlier decision.

        Rule 61, M.R.Civ.P., which describes harmless error, provides

that:
        No error . . . or defect . . . in anything done or
        omitted by the court or by any of the parties is ground
        for . . vacating, modifying or otherwise disturbing a
        judgment or order, unless refusal to take such action
        appears to the court inconsistent with substantial
        justice.

In this case, given the fact that the Department of Corrections had

ample opportunity to present evidence in support of its position in

1993 when the District Court first addressed this issue, and given

the fact that the State was adequately represented by the Missoula

County Attorney at the District Court's 1995 hearing, we hold that

Sheppard's failure to serve the Department of Correction's attorney

was not inconsistent with substantial justice.     Because we conclude

that failure to serve the Department's attorney was, at most,

harmless error, we affirm the July 14, 1995, order of the District

Court.



                                             us ice!
                                    /



                                    8
we concur:




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