DA 07-0704

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 334

JEFFREY SCOTT JORDAN,

 Petitioner and Appellant,

 v.

STATE OF MONTANA,

 Respondent and Appellee.

APPEAL FROM: District Court of the Tenth Judicial District,

In and For the County of Fergus, Cause No. DV-2005-042

Honorable Wm. Nels Swandal, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

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

For Appellee:

Hon. Mike McGrath, Montana Attorney General, Sheri K. Sprigg,

Assistant Attorney General, Helena, Montana

Thomas P. Meissner, Fergus County Attorney, Lewistown, Montana

Submitted on Briefs: August 27, 2008

 Decided: October 6, 2008 

Filed:

__________________________________________

Clerk

October 6 2008
2

Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 Jeffrey Jordan (Jordan) was sentenced by the Tenth Judicial District Court to two 

twelve-year sentences to run consecutively, after pleading guilty to two counts of felony 

sexual assault. Upon review, the Sentence Review Division (SRD) increased his 

sentences to two consecutive twenty-year sentences, with eight years suspended. Jordan 

sought postconviction relief (PCR) from the amended sentence in District Court. The 

District Court dismissed his claim for PCR on the ground that it did not have jurisdiction 

to review a sentence issued by SRD. Jordan appeals. We affirm.

ISSUES

¶2 The issues on appeal are:

¶3 Did the District Court err when it concluded that Jordan was precluded from 

seeking postconviction relief in a district court from the Sentence Review Division’s 

decision?

¶4 Did the District Court err when it noted that the Sentence Review Division’s 

reasoning was satisfactory?

¶5 Because we conclude the first issue is dispositive, we decline to address the 

second issue.

FACTUAL AND PROCEDURAL BACKGROUND

¶6 In July 2004, Judge Nels Swandal of the Tenth Judicial District Court sentenced 

Jordan to two consecutive twelve-year sentences for two counts of felony sexual assault. 

The sentence also required Jordan to successfully complete both Phase I and Phase II of 

the sexual offender treatment program at Montana State Prison before being eligible for 
3

parole. The District Court, however, included in Jordan’s sentence the opportunity for 

him to seek reconsideration of this requirement if he was enrolled in Phase II of the 

treatment program and was complying with the program but had not completed it at the 

time he was parole eligible.

¶7 In March 2005, Jordan applied for sentence review by the Sentence Review 

Division. On March 31, 2005, the SRD increased his sentence to two consecutive 

twenty-year sentences with eight years suspended. The amended sentence also 

eliminated Jordan’s opportunity to seek redress of his obligation to complete Phase II of 

sex offender treatment prior to parole eligibility.

¶8 Subsequently, Jordan filed two pro se petitions for postconviction relief in District 

Court challenging his amended sentence. Judge Phillips of the Tenth Judicial District 

Court dismissed both petitions on procedural grounds. Jordan appealed. In Jordan v. 

State, 2007 MT 165, 338 Mont. 113, 162 P.3d 863 (Jordan I), we noted that Judge 

Phillips had originally presided over Jordan’s case but had been substituted by Judge 

Swandal early in the proceeding. Because it was Judge Swandal’s sentence that Jordan 

appealed to the SRD, we concluded that “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 has been removed.” Jordan I, ¶ 13. We therefore reversed and 

remanded the case to District Court for Judge Swandal’s consideration of Jordan’s 

petition for PCR. Jordan I, ¶ 14.

¶9 Judge Swandal dismissed Jordan’s PCR claim on the ground that district courts 
4

cannot review a judgment of the SRD and that Jordan’s only recourse was a writ of 

extraordinary relief before the Montana Supreme Court. The court also stated that SRD’s 

reasoning in its amended judgment was sufficient to satisfy the applicable statutory 

requirements. Jordan appeals, arguing that the District Court erred when it: (1) 

concluded that Jordan was precluded from seeking postconviction relief in district court 

from an SRD’s decision, and (2) opined that SRD’s reasoning was satisfactory. 

STANDARD OF REVIEW

¶10 We review the grant or denial of a petition for postconviction relief to determine 

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

law are correct. Jordan I, ¶ 5. 

DISCUSSION

¶11 Did the District Court err when it concluded that Jordan was precluded from 

seeking postconviction relief in a district court from the Sentence Review 

Division’s decision?

¶12 Jordan argues that the relevant statutes, §§ 46-21-101 and 46-18-904, MCA, 

permit him to seek PCR in district court; therefore, Judge Swandal erred when he denied 

Jordan’s petition for lack of jurisdiction. Jordan cites § 46-21-101(1), MCA, for 

authority to seek postconviction relief in district court.

A person adjudged guilty of an offense in a court of record who has 

no adequate remedy of appeal and who claims that a sentence was imposed 

in violation of the constitution or the laws of this state or the constitution of 

the United States, that the court was without jurisdiction to impose the 

sentence, that a suspended or deferred sentence was improperly revoked, or 

that the sentence was in excess of the maximum authorized by law or is 

otherwise subject to collateral attack upon any ground of alleged error 

available under a writ of habeas corpus, writ of coram nobis, or other 

common law or statutory remedy may petition the court that imposed the 
5

sentence to vacate, set aside, or correct the sentence or revocation order.

(Emphasis added.)

1

He also relies on § 46-18-904(3), MCA, which provides in part:

The sentence imposed by the district court is presumed correct. If 

the review division orders a different sentence, the court sitting in any 

convenient county shall resentence the person as ordered by the review 

division.

¶13 Jordan maintains that when SRD returns a case to district court after rendering its 

re-sentencing decision, it is the district court that “imposes” the SRD’s sentence. As 

such, under § 46-21-101(1), MCA, he argues he may seek review of that “imposed” 

sentence in the district court.

¶14 Jordan also asserts that State v. Torres, 277 Mont. 514, 922 P.2d 1180 (1996), 

overruled in part by Ranta v. State, 1998 MT 95, 288 Mont. 391, 958 P.2d 670, does not

preclude the filing of a petition for PCR in district court; rather, it simply states that a 

PCR petition may no longer be filed in the Montana Supreme Court. He opines that if 

“Torres meant what the District Court concluded, Torres would be in direct conflict with 

§ 46-21-101, M.C.A.”2 Therefore, to harmonize Torres with § 46-21-101, MCA, he 

maintains we must hold that a petitioner may seek redress of an SRD sentence in the 

district court that imposed the sentence or by filing a writ of extraordinary relief with the 

Montana Supreme Court.

 

1 Prior to a legislative amendment in 1997, this statute provided in relevant part that “a person 

adjudged guilty . . . may petition the court that imposed the sentence or the supreme court to 

vacate, set aside, or correct the sentence or revocation order.” (Emphasis added.)

2

 We note that the District Court conducted no legal analysis or discussion of Torres in its 

Order; rather, it based its legal conclusion on Ranta.
6

¶15 Relying on Ranta, the State counters that the Montana Supreme Court is 

authorized to review a sentence of SRD but the district courts are not. In Ranta, after 

being sentenced in district court, Ranta applied for sentence review before SRD. SRD 

affirmed the district court sentences. Challenging SRD’s ruling, Ranta filed a petition for 

postconviction relief with this Court. We stated that the 1997 legislative revision to 

§ 46-21-101(1), MCA, eliminated the opportunity for a petitioner seeking PCR to file his 

or her petition directly with this Court. Ranta, ¶ 11. As a result, we accepted Ranta’s 

petition for postconviction relief as a petition for extraordinary relief pursuant to 

M. R. App. P. 17 (Rule 17).3 We also stated that to the extent Torres, decided in 1996, 

holds that filing a petition for PCR may be done with this Court, Torres is no longer 

controlling. Notably, however, we did not address in Ranta whether the district courts 

have jurisdiction to review an SRD sentence upon the filing of a PCR petition. 

¶16 The State points out that Montana’s law creating the Sentence Review Division 

was adopted from Connecticut’s, i.e., Conn. Gen. Stat. § 51-195, thus making 

Connecticut’s interpretations persuasive. It cites State v. Nardini, 445 A.2d 304, 313-14 

(Conn. 1982) for the proposition that a trial court may impose SRD’s modified sentence 

but it has no appellate authority and therefore is not authorized to review the action of 

SRD. The State maintains that after the Montana Legislature revised the SRD statute in 

1997 to preclude filing PCR petitions with the Montana Supreme Court, the exclusive 

method remaining for challenging actions by the Sentence Review Board was the filing 

of a petition for extraordinary relief with the Montana Supreme Court. 

 

3

In 2007, Rule 17 was amended and re-numbered as Rule 14 (Rule 14).
7

¶17 In its Order denying Jordan’s petition for PCR, the District Court relied on Ranta

and concluded that this Court has the exclusive authority to review sentences issued by 

SRD. 

¶18 Some historical analysis is necessary. In 1967, the Legislature enacted 

§§ 95-2501-2504, R.C.M. 1947, currently codified at §§ 46-18-901–905, MCA, creating 

the Sentence Review Division. The SRD was created to provide appellate review of legal 

sentences challenged by the recipient as being unjust or inequitable. State v. Simtob, 154 

Mont. 286, 288, 462 P.2d 873, 874 (1969). Before the Sentence Review Division was 

created, we reviewed criminal sentences for both legality and equitability. See State v. 

Brooks, 150 Mont. 399, 412, 436 P.2d 91, 98 (1967) (reviewing a claim that a 40-year 

sentence was unduly harsh and unreasonable). After its creation, SRD was charged with 

determining the appropriateness of criminal sentences with respect to the individual 

offender and a particular offense. State v. McKenzie, 186 Mont. 481, 519, 608 P.2d 428, 

450 (1980) (overruled in part on other grounds by State v. Van Kirk, 2001 MT 184, 306 

Mont. 215, 32 P.3d 735). For example, questions of equitability, such as length of 

sentence or proportionality to the crime, fall under the purview of SRD. State v. Kern, 

2003 MT 77, ¶ 54, 315 Mont. 22, ¶ 54, 67 P.3d 272, ¶ 54. On the other hand, this Court 

reviews sentences for legality—that is, whether the sentence is within the parameters of 

the sentencing statute. State v. Ashby, 2008 MT 83, ¶ 8, 342 Mont. 187, ¶ 8, 179 P.3d 

1164, ¶ 8. As a result of the availability of this bifurcated review process, it is possible 

for a person to seek review by SRD of the equitability of his sentence, and seek review by 

this Court on the legality of his sentence.
8

¶19 In the case before us, however, Jordan sought review of the equitability of his 

sentences from SRD. SRD, as authorized by § 46-18-904(1)(a)(ii), MCA, increased his 

sentences and eliminated his opportunity to seek redress vis-à-vis parole eligibility and 

sex offender treatment. Jordan then sought review of SRD’s sentences by the District 

Court. This was error and the District Court properly dismissed his petition.

¶20 It is well-established that this Court has exclusive jurisdiction over its rules, 

commissions and divisions. For example, we recently affirmed the district court’s ruling 

in Billings Gazette v. State, 2008 MT 287, 345 Mont. 385, 190 P.3d 1126, in which the 

district court dismissed a petition requesting an order mandating the Commission on 

Practice and the Office of Disciplinary Counsel to release records of a legal disciplinary 

proceeding. The district court concluded that the Montana Supreme Court Rules of 

Professional Conduct dictated when records of such proceedings were public and when 

they were private, and that it did not have jurisdiction to decide otherwise. We agreed 

with the district court. 

¶21 Similarly, just as we asserted exclusive jurisdiction over the rules of professional 

conduct in Billings Gazette, we asserted exclusive jurisdiction over a judicial branch 

personnel plan under which county judicial employees were transferred to the Montana 

Judicial Branch. Boe v. Court Adm’r. for the Mon. Jud. Branch, 2007 MT 7, 335 Mont. 

228, 150 P.3d 927. Moreover, we unequivocally held in Goetz v. Harrison, 153 Mont. 

403, 457 P.2d 911 (1969), that the district court may not sit in judgment of this Court. 

¶22 A similar legal premise is applicable to the case at bar. In Ranta, ¶ 12, we 

explained:
9

Because the Sentence Review Division functions as an arm of this Court, 

this Court has the supervisory authority to ensure that it complies with 

statutes and rules governing its operations as well as the Montana 

Constitution and the United States Constitution. Section 46-18-901(1), 

MCA; Art. VII, Sec. 2, Mont. Const. Additionally, Rule 17(a), 

M.R.App.P., codifies this Court’s power to “hear and determine such 

original and remedial writs as may be necessary or proper to the complete 

exercise of its jurisdiction.” It is on that basis that we are authorized to 

review the decision of the Sentence Review Division. 

¶23 These cases illustrate that this Court retains exclusive jurisdiction over its 

commissions and divisions. Clearly, SRD is a “division” of this Court, as is evidenced by 

the fact that § 46-18-901, MCA, is entitled “Review division of supreme court – review 

of sentences.” Accordingly, the district courts have no jurisdiction to review the 

decisions of SRD. 

¶24 Nor are we persuaded by Jordan’s argument that remand of a SRD sentence to 

district court requires the district court to “impose” the new sentence which, in turn, 

authorizes a petitioner to seek PCR in the district court. Section 46-18-904(3), MCA, 

instructs the district court upon receipt of SRD’s revised sentence to “resentence the 

person as ordered by the review division.” This “resentencing” is a strictly ministerial 

task over which the district court has no discretion. As noted above, Connecticut law on 

this issue is persuasive. The Nardini Court, addressing a similar argument, explained it 

in this manner:

[I]n criminal cases subject to sentence review, the imposition of the 

modified sentence following the action of the sentence review division is 

merely formal and ministerial. The trial court which imposes the modified 

sentence has no appellate authority and therefore is not authorized to review 

the action of the sentence review division. State v. Deep, 181 Conn. 284, 

286, 435 A.2d 333 (1980). Furthermore, because it is bound by the 

previous action . . . it lacks any independent discretionary authority to 
10

impose its own sentence. If the modified sentence is illegal in any respect 

the appropriate remedy for correcting such illegality is by appeal to [the 

Supreme Court of Connecticut]. (Citations omitted.)

Nardini, 445 A.2d at 313.

¶25 Therefore, we conclude that once a sentence has been reviewed by SRD and 

returned to the district court for implementation, a person wishing to challenge SRD’s 

ruling is limited to seeking extraordinary relief from this Court under M. R. App. P. 14.

CONCLUSION

¶26 For the foregoing reasons, we affirm the District Court’s denial of Jordan’s 

petition for postconviction relief. 

/S/ PATRICIA COTTER

We concur: 

/S/ KARLA M. GRAY

/S/ W. WILLIAM LEAPHART

/S/ BRIAN MORRIS

/S/ JOHN WARNER