                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         No. 05-075

                                        2006 MT 282

                                      ______________

KARL ERIC GRATZER,                                       )
                                                         )
              Petitioner,                                )              OPINION
       v.                                                )                 and
                                                         )               ORDER
MIKE MAHONEY,                                            )
                                                         )
              Respondent.                                )
                                      ______________

¶1     Karl Eric Gratzer, who was convicted of deliberate homicide in 1982 and who is

presently serving a life sentence without the possibility of parole (plus ten additional

years for using a dangerous weapon while perpetrating the deliberate homicide)

petitioned this Court for a writ of habeas corpus. As a preliminary matter, Gratzer

challenges the constitutionality of § 46-22-101(2), MCA (2003), suggesting that the

statute, by prohibiting a petitioner from challenging the validity of a sentence,

impermissibly suspends the writ of habeas corpus. Substantively, Gratzer maintains that

the District Court violated his constitutional rights and exceeded its authority when it

declared him ineligible for parole. Gratzer insists that § 46-18-202(2), MCA (1981)

(“Additional Restrictions on Sentence”), does not permit such a parole restriction to be

imposed upon a life sentence. Gratzer also contends that the District Court violated his

constitutional rights when it designated him a “dangerous offender,” because, he asserts,

the court lacked the authority to designate a person serving a life sentence as a

“dangerous offender.” Finally, relying on Apprendi v. New Jersey, 530 U.S. 466, 120


                                              1
S. Ct. 2348 (2000), Gratzer argues that the District Court violated his constitutional rights

when, absent a specific charge and a jury finding that Gratzer had used a weapon, it

sentenced him to a consecutive ten-year term for the use of a weapon in the commission

of an offense. We address each argument in turn.

I. Constitutionality of § 46-22-101(2), MCA (2003)

¶2     Section 46-22-101(2), MCA (2003), provides, in pertinent part:

              The writ of habeas corpus is not available to attack the validity of the
       conviction or sentence of a person who has been adjudged guilty of an
       offense in a court of record and has exhausted the remedy of appeal.

Gratzer, who is attacking the validity of his sentence, challenges the constitutionality of §

46-22-101(2), MCA (2003). We recently addressed this issue in Lott v. State of Montana,

2006 MT 279, wherein we held that the procedural bar to habeas corpus petitions

contained in § 46-22-101(2), MCA (2003), is unconstitutional as applied to facially

invalid sentences. Since Gratzer’s challenges draw into question the facial validity of his

sentence, 1 we conclude that the procedural bar to his habeas corpus petition is not

applicable, and we address the merits of his claims.

¶3     We evaluate the legality of a sentence according to the sentencing statutes in effect

at the time a defendant is sentenced. State v. Finley, 276 Mont. 126, 147, 915 P.2d 208,




       1
        Based on the wording of the sentencing statutes and parole eligibility statutes,
Gratzer contends the court had no authority to restrict parole eligibility for a person
serving a “life” sentence. Gratzer similarly argues that the sentencing statutes do not
allow the court to impose a dangerous offender designation to someone serving a life
sentence. Finally, Gratzer argues that the sentencing statutes are unconstitutional in that
they allow a judge to impose a weapon enhancement absent a specific jury finding
beyond a reasonable doubt.


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221 (1996). Gratzer was sentenced in 1982. Accordingly, we examine Gratzer’s

sentence through the lens of the 1981 Montana Code.

II. Parole Ineligibility

¶4     Gratzer contends that the District Court violated his constitutional rights when it

declared him ineligible for parole while serving a life sentence. Gratzer interprets the

sentencing statutes and parole eligibility statutes to distinguish between determinate time

sentences—statutorily dubbed “term” sentences, according to Gratzer—and indeterminate

life sentences, and suggests that the statutory scheme, therefore, does not authorize a

court to remove a prisoner’s eligibility for parole if the prisoner is serving a life sentence.

Essentially, Gratzer argues that the statute that authorizes a court to restrict parole

eligibility, because it speaks only of “a sentence of imprisonment in the state prison for a

term exceeding 1 year,” § 46-18-202(2), MCA (1981) (emphasis added), does not apply

to life sentences. Gratzer notes that a life sentence carries a statutorily mandated

restriction on parole during the first thirty years of the sentence, § 46-23-201(1)(b), MCA

(1981), and insists that courts lack authority to affix any additional parole restrictions to a

life sentence.

¶5     The structure of the statutory framework authorizing sentences and parole

restrictions and the statutory terminology pertaining thereto, however, undermine

Gratzer’s argument and evince the legislature’s clear intent to enable courts to impose life

sentences without the possibility of parole. Gratzer correctly points out that his “life

sentence” carries a statutorily mandated restriction on parole during the first thirty years

of his incarceration, § 46-23-201(1)(b), MCA (1981), as distinguished from the parole



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eligibility of prisoners serving “time sentence[s]” (which is dictated by the duration of the

sentence), § 46-23-201(1)(a), MCA (1981). Gratzer overlooks the essential fact that the

statutory provisions delineating parole eligibility for prisoners serving both “time

sentence[s],” and “life sentence[s],” explicitly yield to § 46-18-202(2), MCA (1981),

which allows a court to impose “the restriction that the defendant be ineligible for parole

and participation in the supervised release program while serving his term.” See § 46-23-

201(1), MCA (1981) (providing that the parole board shall release certain prisoners on

parole, “except . . . persons serving sentences imposed under 46-18-202(2)”). This

explicit exception to parole eligibility applies equally to the ensuing statutory subsections

governing time sentences, § 46-23-201(1)(a), MCA (1981), and life sentences, § 46-23-

201(1)(b), MCA (1981). This statutory structure clearly reflects the legislature’s intent to

authorize a sentencing court to impose parole ineligibility on either a life sentence or a

time sentence.

¶6     This discernment of legislative intent is supported by the criminal code’s repeated

references to term sentences. “Term” is used throughout the criminal code to refer to the

duration of a sentence without any indication that it is meant to refer exclusively to

determinate time sentences. See, e.g., § 46-23-103(4), MCA (1981), and § 46-23-

1001(3), MCA (1981) (defining “parole” as “release to the community of a prisoner by

the decision of the board prior to the expiration of his term,” and thereby indicating that if

a prisoner serving a life sentence may be released on parole, then his sentence is for a

“term” of life) (emphasis added); see also, § 46-23-216(2), MCA (1981), “Duration of

parole” (mandating that “[t]he period served on parole or conditional release shall be



                                              4
deemed service of the term of imprisonment, and . . . the total time served may not exceed

the maximum term or sentence,” thereby implying that “term” applies equally to

determinate time sentences and to life sentences, or else there is no delineation of the

duration of parole for prisoners serving life sentences) (emphasis added); § 45-2-101(21)

MCA (1981), (defining “felony” as “an offense in which the sentence imposed upon

conviction is death or imprisonment in the state prison for any term exceeding 1 year”)

(emphasis added). The statutes defining parole and establishing its duration refer to the

“term” of a sentence. By use of this nomenclature, the legislature evidently intended to

refer both to prisoners serving determinate time sentences and to prisoners serving life

sentences. Otherwise, § 46-23-201(1)(b), MCA (1981) (establishing the parole eligibility

of prisoners serving a life sentence), would be rendered null by exclusion of life sentences

from the very definition of parole. We must interpret a statutory scheme so as to give

meaning and effect to each provision, whenever possible. Section 1-2-101, MCA (2005).

Thus, we interpret “a sentence of imprisonment in the state prison for a term exceeding 1

year,” in § 46-18-202(2), MCA (1981), as referring to all felonies (this being the exact

definition of “felony,” § 45-2-101(21), MCA (1981)), including those punishable by a life

sentence, 2 rather than as a cryptic means of limiting the court’s authority to restrict the

parole eligibility of those prisoners serving life sentences.


       2
         Crimes that punish by the imposition of a life sentence are properly classified as
felonies. A crime is classified as a misdemeanor if the sentence imposed is
“imprisonment in the state prison for any term of one year or less.” Section 45-2-101(36),
MCA (1981). A crime is classified as a felony if it is punished by death or imprisonment
in the state prison for a term exceeding one year. Section 45-2-101(21), MCA (1981).
Offenses that are punished by life sentences are not explicitly designated as either
felonies or misdemeanors, but they are clearly more properly classified as felonies.


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¶7     In addition to the structure of the statutory framework and the repeated use of

“term” in the criminal code to generically refer to the duration of a sentence, common

sense buttresses our interpretation of the statutory scheme. A life sentence could

conceivably endure for a period of less than one year, but only if the prisoner dies within

one year of being sentenced. Section 46-23-201(1)(b), MCA (1981), however, provides

that a prisoner serving a life sentence “may [not] be paroled until he has served 30 years,

less the good time allowance provided for in 53-30-105.” Pursuant to § 53-30-105(1),

MCA (1981), a prisoner may accrue good time credits at a rate of fifteen days per month,

at most. Consequently, a prisoner must serve at least fifteen years of a life sentence

before first becoming eligible for parole. If a prisoner who has been sentenced to life

imprisonment lives long enough to become eligible for parole, he has necessarily been

committed to serve, and has in fact served, “a sentence of imprisonment in the state prison

for a term exceeding 1 year,” and the sentencing court is therefore authorized to “impose

the restriction that the defendant be ineligible for parole and participation in the

supervised release program . . . .” Section 46-18-202(2), MCA (1981). In light of the

several foregoing reasons, the District Court did not exceed its sentencing authority nor

violate Gratzer’s constitutional rights when it sentenced Gratzer to a sentence of life

without the possibility of parole.

III. Dangerous Offender Designation

¶8     Having determined that the District Court did not violate Gratzer’s constitutional

rights when it sentenced him to life without parole, we can easily dispense with his claim

that the court violated his constitutional rights when it designated him a “dangerous



                                               6
offender” for all purposes. Gratzer argues that a dangerous offender designation cannot

be applied to a life sentence and that the only legitimate purpose for designation as a

dangerous offender is to affect a prisoner’s parole eligibility. A prisoner serving a

determinate time sentence becomes eligible for parole after serving one-half of his

sentence, less good time allowances, while a prisoner who is designated as a non-

dangerous offender becomes eligible for parole after serving only one-quarter of his

sentence, less good time allowances. Section 46-23-201(1)(a), MCA (1981).

¶9     Ultimately, the District Court’s designation of Gratzer as a “dangerous offender”

has no effect on the length of time he must serve before becoming parole eligible.

Irrespective of this designation, Gratzer’s life sentence and ineligibility for parole

preclude him from ever becoming eligible for parole. Accordingly, we conclude that the

District Court did not violate Gratzer’s constitutional rights when it designated him as a

“dangerous offender” for all purposes.

IV. Sentence Enhancement for the Use of a Weapon

¶10    Gratzer argues that the District Court violated his constitutional rights when it

sentenced him to a consecutive ten-year term for using a weapon in the commission of the

homicide, absent a specific charge and a jury’s finding of that fact beyond a reasonable

doubt. His argument relies squarely on the decision of the United States Supreme Court

in Apprendi and on its progeny, Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531

(2004), and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002). Notwithstanding

Gratzer’s contention that his conviction did not become final until ninety days after the

Ninth Circuit denied his petition for a federal writ of habeas corpus in January 2005, see



                                              7
Gratzer v. Mahoney, 397 F.3d 686 (9th Cir. 2005), his conviction actually became final

for purposes of collateral review when Gratzer’s time for petitioning the United States

Supreme Court for direct review expired, ninety days after this Court’s 1984 affirmance

of Gratzer’s conviction on direct appeal, see State v. Gratzer, 209 Mont. 308, 682 P.2d

141 (1984). See Caspari v. Bohlen, 510 U.S. 383, 390, 114 S. Ct. 948, 953 (1994) (“[a]

state conviction and sentence become final for purposes of retroactivity analysis when the

availability of direct appeal to the state courts has been exhausted and the time for filing a

petition for a writ of certiorari has elapsed or a timely filed petition has been finally

denied”). Gratzer’s conviction became final long before the Supreme Court decided

Apprendi, Blakely or Ring. Consequently, our ability to consider his claim that relies on

these decisions depends on whether they apply retroactively to cases on collateral review.

See State v. Egelhoff, 272 Mont. 114, 125, 900 P.2d 260, 267 (1995) (“[r]etroactivity is

properly treated as a threshold question” (quoting Teague v. Lane, 489 U.S. 288, 300-01,

109 S. Ct. 1060, 1070 (1989))), rev’d on other grounds by Montana v. Egelhoff, 518 U.S.

37, 116 S. Ct. 2013 (1996).

¶11    Gratzer does not argue that Apprendi, Blakely or Ring do apply retroactively to

cases on collateral review. Instead, by his insistence that his conviction did not become

final until after these decisions were rendered, Gratzer appears to concede that none of

these cases would apply retroactively. If so, he has correctly interpreted the writing on

the walls, as we now confirm that Apprendi and its progeny do not apply retroactively to

cases on collateral review.




                                               8
¶12    Pursuant to the United States Supreme Court’s ruling in Apprendi, “[o]ther than

the fact of a prior conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt.” 530 U.S. at 490, 120 S. Ct. at 2362-63. Here, the District Court,

rather than the jury, found that Gratzer had used a weapon in committing deliberate

homicide and therefore the court imposed a consecutive ten-year sentence enhancement.

Clearly, the District Court’s imposition of a consecutive ten-year sentence on top of a life

sentence increased the penalty for Gratzer’s crime precisely ten years beyond the

prescribed statutory maximum sentence for deliberate homicide, rendering Apprendi

potentially applicable. See § 45-5-102(2), MCA (1981) (authorizing the court to impose

sentences of death, life imprisonment or imprisonment for between ten and one hundred

years on a person convicted of deliberate homicide). The dispositive question, however,

is whether Apprendi should apply retroactively to Gratzer’s collateral challenge to his

sentence.

¶13    This Court has adopted the Teague Court’s two-part “threshold” test for

determining whether a procedural rule of constitutional law should be applied

retroactively on collateral review. See Egelhoff, 272 Mont. at 126, 900 P.2d at 267

(“[Teague’s] view of retroactivity for cases on collateral review is binding upon this

Court”); see also State v. Goebel, 2001 MT 155, ¶¶ 7-17, 306 Mont. 83, ¶¶ 7-17, 31 P.3d

340, ¶¶ 7-17, abrogated on other grounds by Gundrum v. Mahoney, 2001 MT 246, ¶ 13,

307 Mont. 96, ¶ 13, 36 P.3d 890, ¶ 13; State v. Whitehorn, 2002 MT 54, ¶¶ 30-42, 309

Mont. 63, ¶¶ 30-42, 50 P.3d 121, ¶¶ 30-42 (clarifying that the Teague test properly



                                              9
applies when determining whether to retroactively apply procedural rules of constitutional

law, but does not apply to substantive rules of constitutional law). Under the plurality

opinion 3 in Teague, new constitutional rules of criminal procedure do not apply

retroactively to cases on collateral review unless: (1) the rule “places ‘certain kinds of

primary, private individual conduct beyond the power of the criminal law-making

authority to proscribe’”; or (2) the rule qualifies as a “watershed rule[] of criminal

procedure.” Teague, 489 U.S. at 310-11, 109 S. Ct. at 1075-76.

¶14    The Supreme Court, applying Teague, has held that Ring does not apply

retroactively. Schriro v. Summerlin, 542 U.S. 348, 124 S. Ct. 2519 (2004). The Court’s

reasoning supports the conclusion that neither Apprendi nor Blakely would apply

retroactively.   The Court first concluded that Ring, and, by implication, Apprendi and

Blakely, announced a procedural rule, insofar as they “regulate only the manner of

determining the defendant’s culpability . . . .” Schriro, 542 U.S. at 353, 124 S. Ct. at

2523. Apprendi simply allocates the fact-finding function to the jury and prescribes the

appropriate standard of proof. As the Supreme Court observed with respect to a similar

allocation in Ring, “[r]ules that allocate decisionmaking authority in this fashion are

prototypical procedural rules . . . .” Schriro, 542 U.S. at 353, 124 S. Ct. at 2523.

Apprendi fails to satisfy the first Teague exception, as it announces a rule that does not

inhibit the State’s ability to substantively proscribe and punish a defendant for using a

weapon in the commission of an offense, but merely establishes procedures that the State

       3
        A majority of the Supreme Court subsequently adopted the test first pronounced
by the plurality opinion, joined by only four Justices in Teague. See Penry v. Lynaugh,



                                              10
must follow in doing so. Pursuant to Teague, in order to apply retroactively, such

procedural rules must constitute “‘watershed rules of criminal procedure . . . without

which the likelihood of an accurate conviction is seriously diminished.’” Schriro, 542

U.S. at 352, 124 S. Ct. at 2523 (quoting Teague, 489 U.S. at 311, 313, 109 S. Ct. at 1076,

1077). The Court concluded that it is “implausible that judicial fact-finding so ‘seriously

diminishe[s]’ accuracy as to produce an “‘impermissibly large risk’” of injustice.”

Schriro, 542 U.S. at 356, 124 S. Ct. at 2525. The federal courts of appeals unanimously 4

agree that the Apprendi line of cases does not apply retroactively to cases on collateral

review. See U.S. v. Jenkins, 333 F.3d 151, 153-54 (3rd Cir. 2003) (declining to apply

Apprendi retroactively, and citing similar decisions by the Fourth, Fifth, Sixth, Seventh,

Eighth, Ninth, Tenth, and Eleventh Circuits); see also Sepulveda v. U.S., 330 F.3d 55, 61

(1st Cir. 2003) (“a decision . . . by a judge (on the preponderance standard) rather than a

jury (on the reasonable-doubt standard) is not the sort of error that necessarily undermines

the fairness . . . of judicial proceedings”) (quotations omitted, ellipses in original);

Coleman v. U.S., 329 F.3d 77, 90 (2nd Cir. 2003). In light of the overwhelming weight of

authority and the fact that neither Gratzer, his attorney, nor amicus for the Montana

Association for Criminal Defense Lawyers presented this Court with an argument for

applying Apprendi and its progeny retroactively, we decline to part ways with our federal

counterparts. Accordingly, we hold that Apprendi does not apply retroactively to cases

on collateral review in Montana courts and therefore conclude that the District Court did


492 U.S. 302, 313-14, 109 S. Ct. 2934, 2944 (1989) (applying the two exceptions to non-
retroactivity announced by Teague).



                                               11
not violate Gratzer’s constitutional rights when it imposed an additional ten years on

Gratzer for his committing deliberate homicide with a weapon.

¶15    Each of Gratzer’s three claims fails on the merits. Therefore,

¶16    IT IS ORDERED that Karl Eric Gratzer’s petition for a writ of habeas corpus is

denied.




       4
        Only the Court of Appeals for the District of Columbia has yet to decisively
declare Apprendi non-retroactive.


                                            12
¶17    IT IS FURTHER ORDERED that the Clerk of this Court give notice of this order

by mail to counsel of record as well as to petitioner personally.

       DATED this 1st day of November, 2006.


                                                         /S/ W. WILLIAM LEAPHART


We concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ JIM RICE
/S/ BRIAN MORRIS




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