No. 82-69 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

STATE OF MOETANA, 

Plaintiff and Respondent, 

VS . 

JAMES E. JELLE, 

Defendant and Appellant. 

Appeal from: District Court of the Fifth Judicial District, 

In and for the County of Jefferson 

Honorable Frank Blair, Judge presiding. 

Counsel of Record : 

For Appellant: 

Robert Peterson argued, Heleena, Montana 

For Respondent: 

Honorable Mike Greely, Attorney General, Helena, Montana 

Sheri Sprigg argued, Assistant Attorney General, 

Helena, Montana 

Cecil Woodgate argued, County Attorney, Boulder, Montana 

Submitted: September 15, 1982 

Decided: October 13, 1982 

Filed: QcTl3'1982 
Mr. 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was revoked and the District Court sentenced defendant to ten 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 in the Montana State Prison. 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 on August 24, 1981, and defendant appeals. 

Defendant was arrested on March 22, 1975, for the criminal 

sale of dangerous drugs. Defendant pled guilty to the charge and 

judgment was rendered on June 9 , 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 

his admitted alcoholism and that he make every effort to attend a 

vo-tech school and acquire training and education that will prepare him for employment. 

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 the defendant comply with all rules and requirements 

of the Board of Pardons, and report regularly to the representative of said board. 

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 sentence on the grounds that defendant had 

violated numbers two and three of his probation 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 defendant Is companion and the 

Colorado Highway Patrol. Although the shoot-out resulted in two 

deaths, charges against defendant were dropped because he had not 

taken part in the 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 left Warm 

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 in a series of continuous violations of the 

conditions of the deferred sentence, and that it was in the 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 State Prison 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 

Missoula County jail. 

On August 13, 1981, defendant petitioned the District Court 

of the Fifth Judicial District in Jefferson County for post- 
conviction relief pursuant to section 46-21-101, MCA, on the criminal sale of dangerous drugs sentence. On August 24, 1981, the 

District Court denied the petition. 

On June 18, 1982, defendant was released from the Montana 

State Prison on parole. As of 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 issues raised on appeal are: 

1. Whether the appeal from the District Court's denial of 

defendant Is petition for post-conviction relief is moot. 

2. Whether the District Court violated section 95-2206, 

R.C.M., 1947, (now codified as section 46-18-201, 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 

Warm Springs State Hospital. 

3. Whether the imposition of a mandatory two-year term at 

Warm Springs State Hospital 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 only the sentence from Jefferson County that has now expired, the appeal is 

moot. The United States Supreme Court recently ruled upon this 

issue in Lane v. Williams (1982), U.S. .- , 102 S.Ct. 1322, 
--- - L.Ed.2d - ---- . In Lane, 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 two defendants pled 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 writ of habeas corpus in 

Federal District Court seeking to eliminate 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 States Supreme 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 convict ion may have important benefits 

for a defendant . . . but urging in a habeas 

corpus proceeding 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." 102 S.Ct. at 1327. 

In the present case as in Lane, supra, defendant is 

attempting to attack only the sentence that arose from his plea 

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 sentence has now expired and defendant's appeal is moot. This Court 

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 in a 

pre-sentence investigation report would have greater in£ luence 

upon the sentencing judge than would a two-year sentence. 
However, a sentencing judge is to be concerned primarily with the 

fact of a previous conviction, not the accompanying sentence. 

See section 46-18-501, et seq., MCA. Here, the record is void of 

any indication that defendant Is Missoula County sentence was 

influenced by the length of the Jefferson County sentence. 

As defendant'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 af f irmed . n 

We concur: \ I