No. 02-214
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 194N
STATE OF MONTANA,
Plaintiff and Respondent,
v.
CURTIS J. CHRISTIANSON,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Jeffrey M. Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Curtis J. Christianson (pro se), Missoula, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Cregg W. Coughlin,
Assistant Attorney General, Helena, Montana
Leo Gallagher, Lewis & Clark County Attorney, Helena, Montana
Submitted on Briefs: July 25, 2002
Decided: September 5, 2002
Filed:
__________________________________________
Clerk
Justice Jim Regnier 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 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 Curtis J. Christianson, appearing pro se, appeals from the
February 5, 2002, Order entered by the Montana First Judicial
District Court, Lewis and Clark County, denying his motion to amend
sentence, or in the alternative, petition for habeas corpus or
petition for postconviction relief. We affirm.
¶3 The following issues are presented on appeal:
¶4 1. Did the District Court err in denying Christianson’s
petition for postconviction relief?
¶5 2. Did the District Court err in denying Christianson’s
motion to amend his sentence?
BACKGROUND
¶6 On October 23, 1996, Christianson was charged with the offense
of deliberate homicide in connection with the death of his three
year old daughter. On August 28, 1997, Christianson entered a plea
of guilty to an amended charge of mitigated deliberate homicide in
the District Court. After conducting a sentencing hearing, the
court entered an Order on October 9, 1997, sentencing Christianson
to the Montana State Prison for forty years, with ten years
2
suspended. The court further designated Christianson as ineligible
for parole.
¶7 On November 17, 1997, Christianson filed an application for
sentence review. On March 13, 1998, the Sentence Review Division
remanded the case to the District Court with directions that the
court provide reasons why it declared Christianson ineligible for
parole or participation in a supervised release program pursuant to
§ 46-18-202(2), MCA. On March 19, 1998, the District Court entered
an amended judgment setting forth its reasons why Christianson was
ineligible for parole. Christianson appealed from the court’s
March 19, 1998, Order. On July 1, 1999, we issued an Opinion
affirming the District Court in State v. Christianson, 1999 MT 156,
295 Mont. 100,
983 P.2d 909 .
¶8 Subsequently, Christianson filed a motion to amend the
sentence, or in the alternative, a petition for habeas corpus or a
petition for postconviction relief in the Montana Fourth Judicial
District Court, Missoula County. The court denied his motion on
December 11, 2001, concluding that it had no jurisdiction to amend
a sentence imposed by the Montana First Judicial District Court,
Lewis and Clark County. Additionally, the court concluded that a
petition for writ of habeas corpus was not an available remedy to
Christianson since he was challenging the validity of his
conviction.
¶9 On December 28, 2001, Christianson filed in the Montana First
Judicial District Court, Lewis and Clark County, a motion to amend
his sentence, or in the alternative, a petition for habeas corpus
3
or a petition for postconviction relief. Therein, Christianson
alleged that he received ineffective assistance of counsel during
plea negotiations. The District Court denied Christianson’s motion
on February 5, 2002. The court concluded that it lacked statutory
authority to amend Christianson’s sentence, absent a clerical
error, pursuant to § 46-18-116(3), MCA. Additionally, the court
concluded that Christianson could not attack the validity of his
conviction by raising claims of ineffective assistance of counsel
through a petition for a writ of habeas corpus. The court further
concluded that Christianson’s petition for postconviction relief
was time-barred by § 46-21-102, MCA. Christianson appeals.
STANDARD OF REVIEW
¶10 We review a district court’s denial of a petition for
postconviction relief to determine whether its findings of fact are
clearly erroneous and its conclusions of law are correct. See
State v. Whitehorn, 2002 MT 54, ¶ 12,
309 Mont. 63, ¶ 12,
43 P.3d
922, ¶ 12 (citation omitted).
DISCUSSION
ISSUE ONE
¶11 Did the District Court err in denying Christianson’s petition
for postconviction relief?
¶12 Christianson alleges that the District Court erred in
determining that his petition for postconviction relief is time
barred by § 46-21-102, MCA. He argues that he is entitled to the
five year statute of limitations in effect at the time of his
offense. In addition, Christianson claims that the statute of
4
limitations should be tolled because he was incarcerated in
Tennessee and was without access to Montana legal materials. He
further alleges that the statute of limitations should be waived
because he is guilty of the offense of negligent homicide instead
of the offense of mitigated deliberate homicide.
¶13 In response, the State asserts that Christianson’s petition is
barred by the one year statute of limitations in effect at the time
he filed his petition for postconviction relief. The State points
out that Christianson’s conviction became final on September 29,
1999. However, Christianson filed his petition on December 28,
2001, more than one year after his conviction became final.
Moreover, the State contends that the statute of limitations may
not be tolled when Christianson was incarcerated in another state
since the statute of limitations for postconviction petitions is a
jurisdictional limit on litigation, and its waiver may only be
justified by a clear miscarriage of justice, pursuant to our
holding in State v. Wells, 2001 MT 55,
304 Mont. 329,
21 P.3d 610,
overruled on other grounds by Whitehorn, ¶ 49. The State further
contends that Christianson is not entitled to the miscarriage of
justice exception because he has not established that he is
actually innocent of the offense of mitigated deliberate homicide.
We agree.
¶14 To determine whether a petition for postconviction relief is
timely, we look to the statute of limitations in effect at the time
the petition is filed, not to the statute in effect at the time of
the conviction. See State v. Charlo,
2000 MT 192, ¶ 11,
300 Mont.
5
435, ¶ 11,
4 P.3d 1201, ¶ 11 (citing Hawkins v. Mahoney,
1999 MT
82, ¶ 9,
294 Mont. 124, ¶ 9,
979 P.2d 697, ¶ 9). Since
Christianson’s petition for postconviction relief was filed on
December 28, 2001, we will look at the statute of limitations in
effect at that time. Section 46-21-102, MCA (2001), provides that
a petition for postconviction relief “may be filed at any time
within 1 year of the date that the conviction becomes final.”
Section 46-21-102(1), MCA , states that a conviction becomes final
when:
(a) the time for appeal to the Montana supreme court
expires;
(b) if an appeal is taken to the Montana supreme court,
the time for petitioning the United States supreme court
for review expires; or
(c) if review is sought in the United States supreme
court, on the date that that court issues its final order
in the case.
¶15 Here, Christianson’s conviction became final on September 29,
1999, in accordance with § 46-21-102(1)(b), MCA. However,
Christianson did not file his petition until December 28, 2001,
more than one year after his conviction became final.
Consequently, we conclude that Christianson’s petition for
postconviction relief is time-barred pursuant to § 46-21-102, MCA.
¶16 Additionally, we conclude that the enforcement of the
procedural bar will not result in a fundamental miscarriage of
justice in this case. We have previously held that the statute of
limitations for postconviction proceedings is a jurisdictional
limit on litigation and is waived only where there is a clear
6
miscarriage of justice, “one so obvious that the judgment is
rendered a complete nullity.” Wells, ¶ 10 (quoting State v.
Rosales, 2000 MT 89, ¶ 7,
299 Mont. 226, ¶ 7,
999 P.2d 313, ¶ 7).
A fundamental miscarriage of justice arises only when a jury could
find, in light of new evidence, that the defendant is actually
innocent of the crime. See State v. Redcrow,
1999 MT 95, ¶ 37,
294
Mont. 252, ¶ 37,
980 P.2d 622, ¶ 37. Also see Section 46-21-
102(2), MCA. Therefore, the fundamental miscarriage of justice
exception is concerned with actual and not legal innocence. See
Redcrow, ¶ 33 (citation omitted).
¶17 Christianson does not present newly discovered evidence that
shows he is actually innocent of mitigated deliberate homicide.
Rather, he argues he is legally innocent of the crime.
Accordingly, we hold that the District Court was correct when it
concluded that Christianson’s petition for postconviction relief is
barred by the one year statute of limitations pursuant to § 46-21-
102, MCA.
¶18 In passing we note that the District Court properly denied
Christianson’s petition for habeas corpus. Pursuant to § 46-22-
101(2), MCA, habeas corpus relief is not available to attack the
validity of a conviction.
ISSUE TWO
¶19 Did the District Court err in denying Christianson’s motion to
amend his sentence?
¶20 Christianson argues that § 46-18-117, MCA, provides the
District Court with authority to amend his sentence. He points out
7
that § 46-18-117, MCA, has been repealed. He argues, however, that
§ 46-18-117, MCA, was in effect at the time of the commission of
his crime, and thus its effect continues in force throughout his
sentence.
¶21 We have held that once a valid sentence has been pronounced,
the court imposing that sentence has no jurisdiction to modify it,
except as provided by statute. See State v. Fertterer (1993), 260
Mont. 397, 400-401,
860 P.2d 151, 154 (citations omitted). Section
46-18-117, MCA (1999), stated that a court “may correct a sentence
imposed in an illegal manner within 120 days after the sentence is
imposed or after remand from an appellate court.” However, § 46-
18-117, MCA (1999), was repealed in 2001 and replaced by § 46-18-
116(3), MCA. The Compiler’s Comments to § 46-18-116, MCA, make
clear that the 2001 amendments became effective March 20, 2001, and
apply “to all cases currently pending on direct review or that are
not yet final.” Therefore, since Christianson alleged his sentence
was illegal, we conclude that the District Court correctly
concluded that it did not have statutory authority, pursuant to §
46-18-116(3), MCA, to amend Christianson’s sentence.
¶22 Affirmed.
/S/ JIM REGNIER
We Concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ TERRY N. TRIEWEILER
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