No. 96-208 IN THE SUPREME COURT OF THE STATE OF MONTANA 1997

STATE OF MONTANA, Plaintiff and Respondent,

v. ,..\p1 1 

### q,l\? ! 1,x PHILLIP DANIEL SARVER, , ,, Defendant and Appellant.

APPEAL FROM: District Court of the Fifth Judicial District, In and for the County of Jefferson, The Honorable Frank M. Davis, Judge presiding.

COUNSEL OF RECORD: For Appellant: Phillip Daniel Sarver, Deer Lodge,Montana (prose) For Respondent: Joseph P. Mazurek, Attorney General, Patricia 

### J. Jordan,Assistant Attorney General,Helena,Montana; Valerie D. Wilson, Jefferson County Attorney, Boulder, Montana

Filed: Submitted on Briefs: February 20, 1997 Decided: March 11, 1997Justice William E. Hunt, Sr. delivered the Opinion of the Court.

Pursuant to Section I,Paragraph 3(c),Montana Supreme Court 1995 Internal Operating Rules, the following decision shall not be cited asprecedent and shallbe published by its filing as a public documentwith the Clerk of the Supreme Court and by a report of its result to State Reporter Publishing Company and West Publishing Company. Appellant Phillip Daniel Sarver (Sarver) appeals the decision of the Fifth Judicial District Court, JeffersonCounty,denying his petition for post-convictionrelief. We affirm. The sole issue raised on appeal is whether the District Court erred in denying Sarver'spetition forpost-convictionrelief. In 1987,Sarverwas convicted of three counts of felony theft. The District Court sentenced Sarver to three concurrent ten-year terms,but suspended the sentences provided he comply with standard probation conditions. In 1991, the State filed a petition to revoke Sarver's suspended sentence because Sarver had violated the conditions of his probation. On April 25, 1993, the District Court held a hearing on the petition to revokeprobation. Sarverwas present at this hearing with counsel, and he admitted to some, if not all, of the probation violations asserted. The District Court then revoked his suspended sentence and reimposed the sentence of three concurrent ten-yearterms to be served in the Montana State Prison, less time served. Sarver did not appeal the revocation of his probation.
2On March 22, 1996,Sarver filed apetition forpost-conviction relief with the District Court,which the court summarily denied. Sarver now appeals the denial of his petition forpost-conviction relief. On appeal, Sarver asserted the following alleged errors in support of his petition forpost-convictionrelief: 1. The District Court'ssummary denial of his petition for post-conviction relief indicated a lack of deliberation and resulted in this Court lacking a fully developed record with which to consider this appeal. 2. In resentencing him, the District Court failed to credit Sarver with the time elapsed while on probation, or to set forth

reasons for refusing to do so. 3. The District Court lost the jurisdictional authority to revoke Sarver'sprobation due to the lapse of four years between imposition of the original sentence and the State'spetition to revoke the same. The State responds that Sarver is prohibited from raising any of the above-listed alleged errors in a petition for postconviction relief because he could have raised all these issues in

a direct appeal but did not do so. The State therefore contends that the District Court's summary denial of Sarver'spetition was proper because his petition was and is procedurally barred. Section 46-21-101,MCA, allows a convicted individual to file

a petition for post-conviction relief if he or she believes the sentence received is invalid for jurisdictional, constitutional,orother legal reasons. State v. Christensen (1995),274 Mont. 326, 328, 907 P.2d 970, 971. However, [wlhena petitioner has been afforded a direct appeal of the petitioner's conviction, grounds for relief that could reasonably have been raised on direct appeal may not be raised in the original or amended petition. Section 46-21-105(2),MCA. The State asserts that Sarver could have raised the two issues which relate to the court'srevocationof his probationby directly appealing that revocation. Since he did not do so, the State contends that his petition is procedurally barred by § 46-21- lO5(2),MCA. Sarver responds by arguing that 5 46-21-105(2), MCA, does not require a petitioner to have raised all possible issues in a direct appeal. Rather, Sarver argues: Section 46-21-105(2),MCA, would prevent, or bar, a petitioner from raising additional issues in a subsequent petition that could have been raised in an original petition. It is obvious that the legislature's intent was not to bar a petitioner from filing post-conviction simply because he had an opportunity to file a direct appeal. Rather, § 46-21-105(2),MCA, is to require a petitioner to include all issues in an originalpetition, thus preventing the filing of successive and subsequent petitions which include other,not previously presented issues which could have been raised in the original petition. To [hold] otherwise would void the postconviction act, in that nobodywould ever be able to file 

### a post-convictionpetition as most, if not all, cases have the opportunity to file a direct appeal. (Emphasisadded.) Sarvermisreads the statute We have repeatedly held that § 41-21-105(2),MCA, bars a petitioner from raising in a petition for post-convictionrelief those issues which could have been raised by direct appeal. See Christensen, 907 P.2d 970;Vernon Kills On Topv. State (19961,928P.2d 182, 53 St.Rep.1197; State v.Moorman (1996),928 P.2d 145, 53 St.Rep. 1173; In re the Petition of Manula (1993) 

### , 263 Mont. 166, 866 P.2d 1127. This rule "preserves the integrity of the trial and direct appeal and prevents abuse of the post-conviction relief process."Moorman, 928 P.2d at 148 (citing State v. Gorder

(IggO),243 Mont. 333, 792 P.2d 370). It also accomplishes the stated purpose of the post-convictionrelief statutes,which is to bring together and consolidate into one simple statute all the remedies,bevond those that are incident to the usual orocedures of trial and review, which are at present available for challenging the validity of a sentence of imprisonment. Commission Comments to 5 46-21-101, MCA (emphasis added). Moreover, § 46-21-105 (2), MCA, by its plain language, bars any claims which could have been raised in a direct apoeal,not merely those which could have been raised in an earlier post-conviction petition. We agree that the legislature did not intend to bar an individual from filing a post-conviction relief petition merely because he or she has already been afforded an appeal,and, indeed, that isnot the effect of the provision in question. Rather, 5 46- 21-105(2),MCA, prevents duplication of litigation and reinforces the importance of the direct appeal by requiring a defendant to raise all possible alleged errors in an appeal. An individualwho was afforded a direct appeal may still file a petition for postconviction relief and assert any grounds which could &have been raised in the appeal.Sarver argues that this interpretationeffectively "voids"the post-conviction relief provisions of the Montana code because

"nobodywould ever be able to file a post-convictionpetition as most, if not all, cases have the opportunity to file a direct appeal." Again, Sarver misreads the statute. Section 46-21- 105(2),MCA,does not prohibit a defendant who has been afforded an appeal from filing a petition forpost-conviction relief; it merely requires that the defendant first raise all possible arguments in

a direct appeal. If he or she fails to do so, the arguments which could have beenpresented on appeal will not be heard in a petition for post-convictionrelief. The State is correct in asserting that Sarver'sarguments are procedurally barred by § 46-21-105(2) 

### , MCA, and, therefore, the District Court did not err in dismissing the petition. Affirmed.

We Concur: ,,-