No. 05-737 IN THE SUPREME COURT OF THE STATE OF MONTANA 2006 MT 332N

MARK TREINER, Petitioner and Appellant,

v. STATE OF MONTANA, Respondent and Respondent.

APPEAL FROM: The District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. CDV 2004-509, Honorable Thomas C. Honzel, Presiding Judge

COUNSEL OF RECORD: For Appellant: Mark Treiner (pro se), Deer Lodge, Montana For Respondent: Hon. Mike McGrath, Montana Attorney General, Micheal S. Wellenstein, Assistant Attorney Gene ral, Helena, Montana Leo J. Gallagher, Lewis and Cl ark Attorney, Helena, Montana

Submitted on Briefs: October 25, 2006 Decided: December 12, 2006 Filed:

__________________________________________ ClerkJustice James C. Nelson delivered the Opinion of the Court. ¶1 Pursuant to Section I, Para graph 3(d)(v), Montana Supreme Court 1996 Internal Operating Rules, as amended in 2003, the following memorandum decision shall not be cited as precedent. Its case title, Supreme Court cause number and disposition shall be included in this Court's quarterly list of nonc itable cases published in the Pacific Reporter and Montana Reports. ¶2 Mark Treiner appeals an order of the Distri ct Court for the First Judicial District, Lewis and Clark County, denying his Petition fo r Postconviction Relief as untimely. On August 22, 2002, Treiner pled guilty to th ree felony counts: criminal distribution of dangerous drugs; sexual assault of a minor (common scheme); and sexual abuse of children (common scheme). The District Cour t sentenced Treiner to twenty years in prison for the drug offense; forty years in pr ison for the sexual assau lt offense; and forty years in prison for the sexual abuse offense. The court suspended both of the forty-year terms and declared Treiner ineligible for parole during his twenty-year prison term. ¶3 The District Court also ordered Treiner to pay restitution for the counseling that his victims had undergone and would undergo in the future. To sa tisfy the financial obligations imposed by the judgment, the c ourt ordered the forfeiture and sale of

Treiner’s vehicles and firearms as well as the forfeiture of his bank accounts and any future inheritance he might receive. The Di strict Court entered its written judgment on October 22, 2002, and later amended that ju dgment on October 25, 2002, to clarify the sentences, and again on November 6, 2002, to substitute the phrase “ineligible for parole” for “illegible for parole.” Treiner did not appeal his convictions or sentence.

2¶4 On June 22, 2004, the State moved the Di strict Court for permission to destroy

Treiner’s firearms rather than sell them. The motion was made at the request of the Helena Police Department who di d not want to create a liab ility by selling the guns to the public. In the motion, the Stat e represented that neither Trei ner nor his counsel objected. The court granted the motion allowing the destru ction of the firearms and stated that the remaining portions of the am ended judgment would remain in full force and effect. ¶5 On July 27, 2005, Treiner filed his pro se Petition for Postconviction Relief and Supporting Memorandum wherein he claimed th at the District Court violated his due process rights when it restricted his parole eligibility and faile d to set forth its reasons for doing so. Treiner also claimed that the cour t violated his due process rights when it ordered him to pay restitution and to forfe it his property to satisfy his restitution obligation. In response, the State argued that Treiner’s petition was time barred by § 46- 21-102, MCA. The Distri ct Court agreed and deni ed Treiner’s Petition for

Postconviction Relief. The Di strict Court also concluded that, contrary to Treiner’s assertions, the sentence impos ed complied with the law. ¶6 We have determined to decide this case pursuant to Section 1, Paragraph 3(d) of our 1996 Internal Operating Rules, as amended in 2003, which provides for memorandum opinions. ¶7 We review a district court’s denial of a petition for postconviction relief to determine whether the court’s findings of fa ct are clearly errone ous, and whether its

conclusions of law are correct. Camarillo v. State , 2005 MT 29, ¶ 8, 326 Mont. 35, ¶ 8,

3107 P.3d 1265, ¶ 8 (citing State v. Root , 2003 MT 28, ¶ 7, 314 Mont. 186, ¶ 7, 64 P.3d 1035, ¶ 7). ¶8 In the instant case, we hold that the Dist rict Court violated § 46-18-116(2), MCA (regarding the correction of a sentence or judgment), when it amended the judgment on June 22, 2004, to allow for th e destruction of firearms. Ho wever, under M. R. App. P. 5(b), Treiner had 60 days from June 22, 2004, to appeal that decision, which he failed to

do. Because his claim that the District Cour t erred in ordering hi s firearms destroyed

rather than sold could have been raised in a direct appeal, it cannot be brought on a petition for postconviction relief. Section 46-21-105(2), MCA, the issue preclusion provision of the postconvictio n statutes, provides in part: When a petitioner has been afford ed the opportunity for a direct appeal of the petitioner’s conviction, gr ounds for relief that were or could reasonably have been raised on direct appeal may not be raised, considered, or decided in a proceeding brought under [the chapter on postconviction proceedings]. ¶9 We have previously stated that postconviction relief is not intended as a substitute for direct appeal. DeShields v. State , 2006 MT 58, ¶ 15, 331 Mont. 329, ¶ 15, 132 P.3d 540, ¶ 15. Rather, it is intended as an oppor tunity to explore only those issues that are not properly considered on direct appeal. See DeShields , ¶ 15. ¶10 As to the other claims that Treiner raises concerning restitution and restrictions on his parole eligibility, we hold th at those claims are also pr ocedurally barre d by § 46-21- 105(2), MCA, because they could have been raised on direct appeal from the November 6, 2002 judgment.

4¶11 While the District Court denied Treiner’s petition because it wa s not filed within one year of the final judgment pursuant to § 46-21-102(1)(a), MCA, we will not reverse a district court when it reaches the right result, even if it reached that result for the wrong

reasons. Palmer v. Bahm , 2006 MT 29, ¶ 20, 331 Mont. 1 05, ¶ 20, 128 P.3d 1031, ¶ 20 (citing State v. Veis , 1998 MT 162, ¶ 16, 289 Mont. 45 0, ¶ 16, 962 P.2d 1153, ¶ 16). Accordingly, we hold that th e District Court did not err in denying Treine r’s Petition for

Postconviction Relief. ¶12 Affirmed.

/S/ JAMES C. NELSON

We Concur:

/S/ KARLA M. GRAY /S/ PATRICIA COTTER /S/ JOHN WARNER /S/ BRIAN MORRIS

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