NO. 95-444

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

STATE OF MONTANA,

Petitioner and Appellant,

v.

LAWRENCE R. SHEPPARD,

Defendant and Respondent.

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable John S. Henson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

David L. Ohler, Special Assistant Attorney

General, Lois Adams and Diana P. Leibinger,

Department of Corrections, Helena, Montana

Robert Deschamps, III, Missoula County

Attorney; Betty Wing, Deputy County Attorney,

Missoula, Montana

For Respondent:

William Boggs, Attorney at Law,

Missoula, Montana

Filed:

Submitted on Briefs: March 21, 1996

Decided: June 20, 1996
Justice Terry N. Trieweiler delivered the opinion of the Court.

Lawrence Sheppard was found guilty and sentenced by the

District Court for the Fourth Judicial District in Missoula County

to thirty years in the Montana State Prison for the crime of sexual

intercourse without consent. After two years of incarceration for

his conviction, Sheppard filed a document with the Fourth Judicial

District Court in which he moved the court to order that he be

permitted to attend his annual parole review with counsel and that

he be permitted to enroll in the Prison's sexual offender program.

On July 7, 1993, the District Court granted Sheppard's motions. On

June 20, 1995, Sheppard filed a motion with the District Court in

which he sought another order from the court directing the Prison

to enroll him in the sexual offender program. On July 14, 1995,

following a hearing, the District Court issued the requested order.

The State appeals the District Court's order. We affirm the order

of the District Court.

This opinion is limited to the issue of whether service was

properly effected in this case.

FACTUAL BACKGROUND

On September 13, 1989, Larry Sheppard was charged in the

District Court for the Fourth Judicial District with the offense of

sexual intercourse without consent. A jury found Sheppard guilty

of the offense on December 8, 1989, and on January 31, 1990, the

District Court sentenced Sheppard to thirty years in the Montana

State Prison with fifteen years suspended. The District Court

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designated Sheppard a nondangerous offender for purposes of parole

eligibility.

Sheppard had his first parole hearing on October 30, 1991.

Following the hearing, the State of Montana Board of Pardons issued

a written decision in which it denied Sheppard parole. Although

Sheppard had successfully completed Phase I of the Prison sexual

offender program, the Board of Pardons appeared to make further

consideration of his parole contingent on completion of Phase II of

that program. However, although Sheppard applied several times for

admission to Phase II, he was denied admission to the program due

to his refusal to admit guilt to the crime for which he had been

convicted. Sheppard admitted misdemeanor culpability but

maintained he did not commit sexual intercourse without consent

because no penetration had occurred.

Sheppard was eligible for annual review of his parole status

in October 1992. On September 24, 1992, Sheppard's counsel wrote

to the Board of Pardons requesting that he be permitted to

represent Sheppard at the October parole hearing. On October 5,

1992, the Board of Pardons denied that request and indicated that

neither would Sheppard be permitted to attend the hearing.

On October 14, 1992, Sheppard filed a document with the Fourth

Judicial District Court entitled "Alternative Motion or Habeas

Petition," in which he alleged that (1) his constitutional rights

were violated when he and his counsel were not permitted to be

present at his annual parole review; and (2) his Fifth Amendment

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and Due Process rights were violated when he was denied

participation in Phase II of the sexual offender program until he

admitted that he was guilty of the crime for which he had been

convicted. On July 7, 1993, the District Court issued its opinion

and order. The court ordered that Sheppard be permitted to attend

his annual parole review with counsel pursuant to § 46-23-204, MCA.

The court further ordered that Sheppard was "entitled to

participate in the [sexual offender] program regardless of his

resolve to deny guilt."

Despite the court's order, Sheppard was not admitted to

Phase II of the sexual offender program. Therefore, on June 20,

1995, Sheppard filed a document, entitled "Motions," with the

Fourth Judicial District Court. Among other motions, Sheppard

sought an order from the court "directing the Montana State Prison

to permit [Sheppard] to be enrolled in the I.T.U. Sexual Offender

Program Phase II." Sheppard served his motion on the Deputy County

Attorney for Missoula County who had prosecuted him, but did not

serve the attorney for the Department of Corrections. The County

Attorney appeared at the hearing on July 11, 1995, and advanced the

State's position that 'I [Sheppard] has refused to accept

responsibility for his crime, and consequently cannot be admitted

to the Sexual Offender Program, Phase II, I.T.U."

On July 14, 1995, the District Court issued an order directing

that Sheppard be admitted into and allowed to participate in

Phase II of the sexual offender program at Montana State Prison.

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In that order, the court stated clearly that it was reaffirming and

clarifying its previous July 7, 1993, order and that the rationale

for its order remained unchanged.

DISCUSSION

On July 7, 1993, the District Court entered an opinion and

order in which it concluded, in part, that Sheppard's choice to

exercise his Fifth Amendment rights should not preclude his

participation in Phase II of Montana State Prison's sexual offender

program. When the Montana State Prison failed to enroll Sheppard

in the sexual offender program following that order, the District

Court entered another order reaffirming its previous decision.

Although the State of Montana did not appeal the court's July 7,

1993, order, it now appeals the court's July 14, 1995,

reaffirmation of that order and claims: (1) that the District Court

did not have jurisdiction to order that Sheppard be enrolled in

Phase II of the sexual offender program; (2) that the court's order

violated the Montana Constitution's separation of powers clause,

Article III, Section 1; and (3) that service of Sheppard's second

motion was improper because it was not made on the attorney for the

Department of Corrections.

The issue of the court's jurisdiction to order that Sheppard

be enrolled in the sexual offender program and the separation of

powers issue are substantive issues which the State could have

raised in an appeal from the District Court's 1993 order. Because

the State failed to timely appeal that order, as provided by

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Rule 5(b), M.R.App.P., we hold that the State is bound by the 1993

order. The District Court's 1995 order was simply an enforcement

of its earlier decision which had become final due to the State's

failure to appeal. Accordingly, we decline to address the

substantive issues raised by the State, and on appeal address only

the procedural issue of whether service of Sheppard's second motion

was improper because Sheppard failed to serve the attorney for the

Department of Corrections.

Rule 5(b), M.R.Civ.P., provides in part that: "Whenever .

service is required or permitted to be made upon a party

represented by an attorney the service shall be made upon the

attorney . . .'I In this case, Sheppard filed a motion with the

Fourth Judicial District Court on June 20, 1995. Sheppard served

a copy of the motion on the Deputy County Attorney in Missoula

County who had prosecuted him, but did not serve the attorney for

the Department of Corrections who had responded to his 1993 motion.

On appeal, the Department contends that Sheppard's failure to serve

its attorney in 1995 in the second action deprived the State of the

opportunity to present evidence at the district court hearing. The

Department further contends that 1( [tlhe denial of an opportunity to

be heard was material to the Court's decision."

Whether improper service is a reversible error requires an

examination of the facts and the Montana Rules of Civil Procedure.

Phenniciev. Phennicie (1979), 185 Mont. 120, 124, 604 P.2d 787, 789. In

this case, Sheppard served a copy of his motion to compel the

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Montana State Prison to enroll him in the sexual offender program

on the Missoula Deputy County Attorney who had prosecuted Sheppard

on behalf of the State in the underlying criminal proceeding. The

Deputy County Attorney appeared at the district court hearing on

July 11, 1995, and presented the State's position that "[Sheppard]

has refused to accept responsibility for his crime, and

consequently cannot be admitted to [Phase II of] the Sexual

Offender Program." At the hearing, the County Attorney made no

suggestion that she lacked authority to represent the State in this

matter.

Pursuant to 5 7-4-2716(l), MCA, a county attorney is required

to

attend the district court and . . . represent the state

in all matters and proceedings to which it is a party or

in which it may be beneficially interested, at all times

and in all places within the limits of his county.

In this case, Sheppard filed his motion against the State of

Montana in the District Court in Missoula County and served the

County Attorney for that county. Clearly, pursuant to 5 7-4-

2716(1), MCA, the County Attorney had authority to represent the

State. Therefore, because the County Attorney in this case had the

authority to and did in fact represent the State at the District

Court hearing, the State was not denied an opportunity to be heard

in this matter.

Furthermore, the Department of Corrections had already had the

opportunity to advance its position in 1993 when Sheppard brought

his first motion and when the same District Court addressed the

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identical issue. Prior to the District Court's ruling, the

Department of Corrections filed several documents in support of its

position. It is clear from the District Court's 1993 order that

the court fully considered the Department's arguments before it

rendered its decision and order. The court's 1995 order merely

enforced its earlier decision.

Rule 61, M.R.Civ.P., which describes harmless error, provides

that:

No error . . . or defect . . . in anything done or

omitted by the court or by any of the parties is ground

for . . vacating, modifying or otherwise disturbing a

judgment or order, unless refusal to take such action

appears to the court inconsistent with substantial

justice.

In this case, given the fact that the Department of Corrections had

ample opportunity to present evidence in support of its position in

1993 when the District Court first addressed this issue, and given

the fact that the State was adequately represented by the Missoula

County Attorney at the District Court's 1995 hearing, we hold that

Sheppard's failure to serve the Department of Correction's attorney

was not inconsistent with substantial justice. Because we conclude

that failure to serve the Department's attorney was, at most,

harmless error, we affirm the July 14, 1995, order of the District

Court.

/

us ice!

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we concur:

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