No. 82-69 INTHE SUPREME COURT OF THE STATE OF MONTANA 1982

STATE OF MOETANA, Plaintiff and Respondent,

VS

# . JAMES E. JELLE, Defendant and Appellant.

Appeal from: DistrictCourtof theFifthJudicialDistrict, Inand fortheCounty of Jefferson Honorable Frank Blair, Judgepresiding. Counsel of Record: For Appellant: RobertPeterson argued, Heleena, Montana For Respondent: HonorableMike Greely, AttorneyGeneral, Helena, Montana SheriSpriggargued, AssistantAttorney General,

Helena, Montana CecilWoodgate argued, CountyAttorney, Boulder, Montana

Submitted: September 15, 1982 Decided: October 13, 1982 Filed: 

## QcTl3'1982Mr. Justice John Conway Harrison delivered the Opinion of the Court. Petitioner-appellant (defendant)pled guilty

### to the charge of criminal sale of dangerous drugs and received 

### a three-year deferred sentence on June 9, 1975. Subsequently, the sentence



### was revoked and the District Court sentenced defendant to ten years intheMontana StatePrison. On August 13, 1981, defendant petitioned the District Court of the Fifth Judicial District in Jefferson County for post-conviction relief. The petition 

### was denied onAugust 24, 1981, and defendant appeals. Defendant 

### was arrested on March 22, 1975, for the criminal sale of dangerous drugs. Defendant pled guiltyto the charge and judgment 

### was rendered onJune9

## ,1975. The District Court imposed

a three-year deferred sentence together with five conditions of probation. The conditions

### were as follows: 1. That the defendant seek and complete rehabilitation for hisadmitted alcoholismand thathe make everyeffortto attend a vo-tech school and acquire training and education thatwillpreparehim foremployment. 2. That the defendant obey all statutes of the State of Montana and all municipal regulations and ordinances. 3. That the defendant abstain from association with all known users and sellers of dangerous drugs. 4. That thedefendantcomplywith allrules and requirements of the Board of Pardons, and report regularly

### to the representativeof saidboard. Two days later, on June 11, 1975, defendant committed a misdemeanor theft for which he pled guilty. On July 7, 1975, the Jefferson County Attorney's Office filed a motion to revoke deferred imposition of sentenceon the grounds thatdefendanthad violated numbers twoand three of hisprobation by using alcohol and committing a misdemeanor the£ 

### t. After hearing, on July 14, 1975, the District Court denied the motion 

### to revoke but amended the original deferred sentence 

### to include another condition,"[tlhat the defendant be committed to and confined at the Warm Springs State Hospital, for not 

### less than two years, for treatment of his alcoholism, and other psychological problems." Defendant 

### was committed 

### to the Warm Springs State Hospital but escaped within six weeks, sometime around August 20, 1975. Shortly af

### ter defendant left Warm Springs, defendant 

### was identified as a participant in a robbery in Missoula, Montana. The day after the robbery, defendant 

### was arrested in Colorado following a shoot-out between defendantIs companion and the ColoradoHighway Patrol. Although the shoot-out resulted in

### two deaths, charges againstdefendant

### were dropped because he had not takenpart inthe shooting incident. On October 8, 1975, the Jefferson County Attorney's Office filed a second motion 

### to revoke the deferred imposition of sentence upon the following grounds; that defendant had leftWarm Spring? without consent of the staff, that defendant had 

### committed the offense of robbery, that defendant had been arrested by the Colorado Highway Patrol, that defendant had left the jurisdiction of his parole officer without permission, that defendant had engaged ina 

### seriesof continuous violations of the conditions of the deferred sentence, and that it 

### was inthe best interests of society that defendant be incarcerated at Montana State Prison. On October 13, 1975, the District Court revoked the deferred imposition of sentence and sentenced defendant to ten years in the Montana StatePrison on his previous plea of guilty 

### to the charge of criminal 

### sale of dangerous drugs. The District Court of the Fourth Judicial District in Missoula, Montana, ordered defendant to return to Missoula whereupon defendant pled guilty to the robbery charge. On March 12, 1976, defendant 

### was sentenced to forty years in the Montana State Prison, with credit for 181 days already served in the MissoulaCountyjail. On August 13, 1981, defendant petitioned the District Court of the Fifth Judicial District in Jefferson County for post-convictionrelief pursuant to section46-21-101, MCA, on the criminal sale of dangerous drugs sentence. On August 24, 1981, the District Court denied thepetition. On June 18, 1982, defendant 

### was released from the Montana StatePrison on parole. Asof July 1, 1982, the projected date for defendant's termination of parole 

### was June 20, 2012. It appears defendant has been granted approximately three years, seventy-four days of good time since he began serving the Missoula County sentence. According to the Department of Institutions, Corrections Division, defendant's obligation to Jefferson County to the ten-year sentence

### was fulfilled on April 21, 1982, and he was discharged due to completion of his sentence. Defendant appeals the District Court of the Fifth Judicial District's denial of his petition for post-conviction relief. The issuesraised on appeal are: 1. Whether the appeal from the District Court's denial of defendantIs petition for post-conviction relief is 

### moot. 2. Whether the District Court violated section 95-2206, R.C.M., 1947, (now codified as section46-18-201, MCA), and Art. 11, Sec. 17, of the Montana Constitution by amending defendant's deferred sentence to include a mandatory two-year term at the WarmSpringsStateHospital. 3. Whether the imposition of a mandatory two-year 

### term at Warm Springs StateHospital 

### was not actually

### a condition of the deferred imposition of sentence but rather a valid penal sentence. 4. Whether the District Court lacked jurisdiction 

### to entertain a second revocation motion on October 8, 1975, as it had already imposed a penal sentence on July 14, 1975. Respondent argues since defendant has attacked onlythe sentence from Jefferson County thathas now expired, the appeal is moot. The United States Supreme Court recentlyruled upon this issue inLane 

### v. Williams (1982), U.S. .-

## , 102S.Ct. 1322,--- - L.Ed.2d - ----

# . InLane, two defendants entered into a plea -- bargain with state-court prosecutors. The offense carried an indeterminate sentence of imprisonment and a mandatory three-year parole term. When the 

### twodefendantspled guilty, they 

### were not informed that their negotiated sentence included the mandatory parole 

### term. Both defendants served time in prison, 

### were discharged and subsequently violated the conditions of their parole. When defendants 

### were forced to return 

### to prison as parole violators they petitioned for a 

### writof habeas corpus in Federal District Court seeking toeliminate the mandatory parole 

### term from their sentences. The United States Supreme Court held that had defendants sought to set aside their convictions and pled anew, their 

### cases would not be moot as defendants would then be free

### to stand trial for the offense and possibly receive greater sentences. However, defendants sought only to attack their sentences, which had expired in the course of their proceedings. The United StatesSupreme Court held: "Since respondents elected only to attack their sentences, and since those sentences expired during the course of these proceedings, this 

### case is 

### moot. 'Nullification of a conviction may have important benefits for 

### a defendant

# .

# ..but urging in

### a habeas corpusproceeding the correction of a sentence already served is another 

### matter.

## ' North Carolina v. Rice, 404 U.S. 244, 248, 92 S.Ct. 402, 405, 30 L.Ed.2d 413." 102S.Ct. at1327. In the present 

### case as in Lane, supra, defendant is attempting to attack only the sentence that arose from hisplea of guilty

### to the charge of criminal sale of dangerous drugs. As explained above, considering the amount of good time defendant has accumulated while serving the Jefferson County sentence and the merged Missoula County sentence, the Jefferson County sentencehas now expired and defendant's appeal ismoot. ThisCourt will not consider moot points. State 

### v. Binzler (1979), ---- Mont

# .-- 

## ,599 P.2d 349, 36 St.Rep. 1580. Defendant argues a previous ten-year sentence contained ina pre-sentence investigation report would have greater in£luence upon the sentencing judge than would a two-year sentence.However, a sentencingjudge is to be concerned primarilywith the fact of a previous conviction, not the accompanying sentence. See section46-18-501, et seq., MCA. Here, the record is void of any indication that defendantIs Missoula County sentence was influenced by the length of the Jefferson County sentence. Asdefendant's appeal 

### is now 

### moot and as there is nothing in the record which reflects defendant received a greater sentence in Missoula County due to the Jefferson County sentence, the District Court's denial of defendant's petition for postconviction relief is affirmed

# . n

Weconcur: \ I