No. DA 06-0479 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2007 MT 165 

 ____________________________________ 

JEFFREY SCOTT JORDAN, 

 Petitioner and Appellant, 

 v. 

STATE OF MONTANA, 

 Respondent and Respondent. 

 ____________________________________ 

APPEAL FROM: District Court of the Tenth Judicial District, 

 In and for the County of Fergus, Cause No. DV-05-42, 

 The Honorable E. Wayne Phillips, Presiding Judge. 

COUNSEL OF RECORD: 

 For Appellant: 

Jeremy S. Yellin, Attorney at Law, Havre, Montana 

For Respondent: 

Hon. Mike McGrath, Attorney General; Carole E. Schmidt, Assistant 

Attorney General, Helena, Montana 

Thomas P. Meissner, Fergus County Attorney; Monte Boettger, Deputy 

County Attorney, Lewistown, Montana 

 ____________________________________ 

Submitted on Briefs: May 9, 2007 

Decided: July 10, 2007 

Filed: 

_____________________________________________ 

Clerk 
Justice Brian Morris delivered the Opinion of the Court. 

¶1 Jeffrey Scott Jordan (Jordan) appeals the order from the Tenth Judicial District 

Court, Fergus County, denying his petition for post conviction relief. We reverse and 

remand to Judge William Nels Swandal, the original sentencing judge in this case. 

FACTUAL AND PROCEDURAL BACKGROUND 

¶2 Jordan pled guilty to two counts of sexual assault on a minor in violation of § 45-

5-502, MCA. Judge E. Wayne Phillips originally presided over Jordan’s case, but had 

been substituted early in the proceedings. Judge William Nels Swandal assumed 

jurisdiction. Judge Swandal accepted Jordan’s guilty plea and sentenced Jordan to serve 

two consecutive 12-year terms at the Montana State Prison, with Jordan becoming 

eligible for parole only after he completed phases 1 and 2 of the sexual offender 

treatment program. The Sentence Review Division of the Supreme Court of Montana 

amended Jordan’s sentence to 20 years with eight years suspended on each count with the 

two counts running consecutively. 

¶3 Jordan filed pro se a petition for post conviction relief on April 14, 2005, in the 

Tenth Judicial District. Judge Phillips appointed counsel to represent Jordan in the post 

conviction proceedings and simultaneously ordered the Respondent State of Montana 

(State) to file a response. The State urged the court to review the record and determine 

that Jordan is not entitled to relief. Judge Phillips dismissed Jordan’s petition two days 

after the State filed its response based on the court’s determination that the petition did 

not comply with § 46-21-104(2), MCA. This statute requires the petitioner to attach to 

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the petition “a supporting memorandum, including appropriate arguments and citations 

and discussion of authorities.” 

¶4 Jordan’s appointed counsel finally filed a brief in support of Jordan’s petition for 

post conviction relief on March 9, 2006. Jordan’s counsel amended the petition on 

March 30, 2006. Judge Phillips dismissed Jordan’s post conviction claim. The court 

determined that it already had dismissed Jordan’s first petition for post conviction relief, 

and, therefore, could not treat Jordan’s subsequent claim as an amended petition. The 

court instead viewed Jordan’s claim as a separate, second petition. The court reasoned 

that § 46-21-105, MCA, prohibits the filing of a second petition for post conviction relief. 

Jordan appeals. 

STANDARD OF REVIEW 

¶5 We review a district court’s denial of a petition for post conviction relief to 

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

conclusions of law are correct. Hardin v. State, 2006 MT 272, ¶ 11, 334 Mont. 204, ¶ 11, 

146 P.3d 746, ¶ 11. 

DISCUSSION 

¶6 Jordan argues that Judge Phillips lacked jurisdiction to deny his petition for post 

conviction relief. Jordan claims that Judge Phillips did not impose his sentence, and, 

thus, cannot rule on his petition for post conviction relief. Section 46-21-101(1), MCA, 

provides that a petition for post conviction relief must be filed in “the court that imposed 

the sentence.” Jordan requests that we remand this case to Judge Swandal, who 

sentenced Jordan in the underlying criminal matter. 

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¶7 The State responds that § 46-21-101(1), MCA, simply requires the party to 

petition “the court” that imposed the sentence rather than the particular judge that 

presided over the petitioner’s sentencing. The State argues that Jordan’s interpretation of 

§ 46-21-101(1), MCA, would preclude post conviction relief in cases where the 

sentencing judge had died or retired before the petitioner filed for relief. 

¶8 We construe statutory language by its plain meaning. If the words are clear and 

unambiguous then no further interpretation is required. Small v. Board of Trustees, 2001 

MT 181, ¶ 21, 306 Mont. 199, ¶ 21, 31 P.3d 358, ¶ 21. If the plain words of the statute 

are ambiguous, we interpret the statute according to the intent of the legislature. Small, ¶ 

21. 

¶9 Section 46-21-101(1), MCA, directs a petitioner to file a petition for post 

conviction relief in “the court that imposed the sentence.” The statute’s plain language 

provides no guidance, however, as to which judge may preside over the post conviction 

proceeding once the petition is filed in the proper court. We must look to other sources 

of statutory construction to determine the legislative intent. Small, ¶ 21. 

¶10 We discussed in Coleman v. State, 194 Mont. 428, 633 P.2d 624 (1981), the 

history and purpose of § 46-21-101(1), MCA, in the context of whether a sentencing 

judge may recuse himself from a subsequent post conviction proceeding. We determined 

that the statute’s requirement that a post conviction petition be filed in the court that 

imposed the sentence serves to: 1) alleviate the burden of the district court at the place of 

confinement; 2) reduce the cost of the proceeding as most of the witnesses to the post 

conviction proceeding likely reside in the place where trial and sentencing occurred, and; 

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3) allow the judge with the most familiarity of the facts and circumstances surrounding 

the case to review the post conviction claim so as to promote efficiency in the 

administration of justice. Coleman, 194 Mont. at 434, 633 P.2d at 628. 

¶11 The sentencing judge constitutes the judge with the most familiarity of the 

testimony, briefs, motions, and trial court records involving the underlying criminal 

action that remains under collateral attack in the subsequent post conviction proceeding. 

Coleman, 194 Mont. at 435, 633 P.2d at 628. The sentencing judge should preside over 

the subsequent post conviction action to avoid the great delay and burden that would be 

imposed on the courts if a judge other than the sentencing judge had to become familiar 

with the record for the purposes of conducting a post conviction evidentiary hearing. 

Such a delay can be justified only “by the strongest showing of materiality and 

unavailability of evidence sought to be adduced from the sentencing judge.” Coleman, 

194 Mont. at 435, 633 P.2d at 628. 

¶12 Jordan complied with the requirements of § 46-21-101(1), MCA, by filing his 

petition for post conviction relief in the court that imposed his sentence. The assignment 

of Jordan’s post conviction case to the proper judge fell to the court once Jordan filed the 

petition in the proper court. Coleman requires the court to assign Jordan’s post 

conviction matter to Judge Swandal. Judge Swandal sentenced Jordan in the underlying 

criminal action. As a result, Judge Swandal possessed the most familiarity of the 

testimony, briefs, motions, and trial court records involving Jordan’s underlying criminal 

action. Nothing in the record indicates that Judge Swandal would have been unavailable 

to preside over Jordan’s post conviction proceeding and Jordan presented no showing that 

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would have permitted Judge Swandal’s recusal. Coleman, 194 Mont. at 435, 633 P.2d at 

628. 

¶13 Moreover, the substitution of Judge Phillips in Jordan’s underlying criminal action 

would carry over to Jordan’s post conviction proceeding. Section 3-1-804, MCA, 

precludes a substituted district judge from acting “on the merits of the cause” or deciding 

any “legal issues therein.” A substitution of a trial court judge does not evaporate 

suddenly in a subsequent post conviction proceeding that involves the same parties, the 

same witnesses, and the same factual background as the underlying case from which the 

judge already had been removed. Judge Phillips’s substitution in Jordan’s criminal action 

also prevents him from presiding over Jordan’s post conviction proceeding. 

¶14 We reverse Judge Phillips’s orders of June 8, 2005, and June 20, 2006, dismissing 

Jordan’s petition for post conviction relief. We remand Jordan’s post conviction claim 

for consideration by Judge Swandal. We need not reach, therefore, Jordan’s substantive 

claims regarding Judge Phillip’s denial of his petition for post conviction relief. 

 /S/ BRIAN MORRIS 

We Concur: 

/S/ W. WILLIAM LEAPHART 

/S/ JAMES C. NELSON 

/S/ JOHN WARNER 

/S/ JIM RICE 

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