NO. 96-412 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1997 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

LAWRENCE R. SHEPPARD, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Third Judicial District, 

In and for the County of Powell, 

The Honorable Ted L. Mizner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Lawrence R. Sheppard, Pro Se, Deer Lodge, 

Montana 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General, 

Jennifer Anders, Assistant Attorney General, 

Helena, Montana 

Christopher Miller, Powell County Attorney, Deer 

Lodge, Montana 

Filed: 

Submitted on Briefs: January 30, 1997 

~~~id~d: February 13, 1997 
Justice Karla M. Gray delivered the Opinion of the Court. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1995 Internal Operating Rules, the following decision shall not be 

cited as precedent and shall be published by its filing as a public 

document with the Clerk of the Supreme Court and by a report of its 

result in State Reporter Publishing Company and West Publishing 

Company. 

Lawrence R. Sheppard (Sheppard), appearing pro se, appeals 

from the order of the Third Judicial District Court, Powell County, 

denying his request for correction of his escape sentence. We 

affirm. 

The sole issue on appeal is whether Sheppard is entitled to 

correction of his felony sentence for escape. 

In 1994, the State of Montana (State) charged Sheppard with 

committing the offense of escape, in violation of 5 45-7-306, MCA, 

by knowingly removing himself from the Montana State Prison (MSP). 

On June 10, 1994, Sheppard pleaded guilty to the charge, admitting 

that he knowingly removed himself from official detention. On that 

basis, the District Court convicted him of the offense of escape 

and imposed a three-year sentence at the MSP, to run consecutively 

to the term Sheppard was serving at the time, under the felony 

sentencing provisions of 5 45-7-306, MCA. Sheppard did not appeal. 

On August 18, 1994, Sheppard moved to withdraw his guilty 

plea. The District Court denied the motion on the basis that 

Sheppard had not established good cause for withdrawal of the plea. 

On March 14, 1996, Sheppard filed a pro se document with the 

2 
District Court captioned "Motion for Correction of Sentence" which 

he based on 5 46-18-117, MCA. While he still admitted to the facts 

constituting the escape charge, Sheppard contended that the 

District Court had improperly imposed a felony sentence when he 

should have been sentenced for misdemeanor escape. The asserted 

basis for that contention was this Court's decision in State v. 

Nelson (1996), 275 Mont. 86, 910 P.2d 247. 

After the State responded to his initial filing, Sheppard 

filed a "Motion for Correction of Sentence or Habeas Petition PostConviction Relief." He subsequently filed another document 

captioned in the same alternative manner. 

The District Court held a hearing at which Sheppard testified. 

Thereafter, it concluded that Sheppard properly was sentenced under 

the felony sentencing provisions of 5 45-7-306, MCA, and denied the 

requested correction of Sheppard's sentence. Sheppard filed a 

timely notice of appeal. 

Is Sheppard entitled to correction of his felony sentence for 

escape? 

While originally captioned a motion for correction of sentence 

pursuant to 5 46-18-117, MCA, Sheppard himself subsequently changed 

the caption to reflect the alternative bases of motion for 

correction of sentence, petition for habeas corpus, or petition for 

postconviction relief. In any event, we are not bound by a party's 

characterization of a pleading or motion. Moreover, since the law 

applicable to relief under these various methods of proceeding may 

differ significantly, we must first determine the nature of 

Sheppard's filing with the District Court. 

3 
Sheppard challenged the validity of his felony sentence for 

the offense of escape. Under Montana law, collateral attacks to 

the validity of a sentence--whether on constitutional, statutory or 

jurisdictional bases--are within the purview of §§ 46-21-101 et 

seq., MCA, Montana's postconviction relief statutes. Indeed, § 46- 

21-101, MCA, specifically provides that, under the circumstances 

set forth therein, a person may petition the court that imposed the 

sentence "to vacate, set aside, or correct the sentence . . . ." 

The Commission Comments to § 46-21-101, MCA, further clarify that 

the purpose of the statute is to consolidate all remedies beyond 

those incident to usual trial and review procedures which 

previously were available for challenging the validity of a 

sentence of imprisonment. 

Sheppard's effort to challenge the validity of his sentence-- 

brought some 21 months after the conviction and sentence on his 

guilty plea to the escape offense charged--clearly was beyond those 

incident to usual trial and review procedures; as such, it 

constitutes a collateral attack. Therefore, we deem Sheppard's 

motion a petition for postconviction relief and address it 

accordingly. 

Petitions for postconviction relief are subject to a variety 

of statutory limitations. For example, they must be filed within 

five years of the date of the conviction. See § 46-21-102, MCA. 

Sheppard's petition, filed less than two years after his 

conviction, clearly was timely under 5 46-21-102, MCA. 

Section 46-21-105(2), MCA, provides: 
When a petitioner has been afforded a direct appeal 

of the petitioner's conviction, grounds for relief that 

could reasonably have been raised on direct appeal may 

not be raised in the original or amended petition [for 

postconviction relief]. 

In Kills on Top v. State (1995), 273 Mont. 32, 59, 901 P.2d 1368, 

1385, we stated unequivocally that § 46-21-105(2), MCA, "clearly 

establishes a procedural bar to postconviction claims that could 

have been raised on direct appeal." Indeed, we overruled therein 

an earlier case which might have been construed as standing for the 

proposition that issues which could have been raised on direct 

appeal, but were not, could be reviewed in postconviction 

proceedings. Kills on Tow, 901 P.2d at 1386-87. 

Here, the sentencing issue Sheppard raises via his petition 

for postconviction relief could have been raised on appeal. While 

criminal defendants who plead guilty cannot ordinarily appeal from 

their convictions, an appeal is available where a sentencing error 

is asserted which does not affect or aLtempt to invalidate the 

underlying plea. See, e.a., State v. Owens (1992), 254 Mont. 224, 

836 P.2d 595; State ex rel. Greely v. Dist. Ct. of 4th Jud. Dist. 

(1979), 180 Mont. 317, 590 P.2d 1104. That is precisely the 

situation presently before us. Thus, while Sheppard could not have 

appealed from the escape conviction on his guilty plea admitting to 

the facts which formed the basis for the charge, he could have 

appealed the sentence imposed under the felony sentencing 

provisions of § 45-7-306, MCA. 

Sheppard seeks to raise now--via petition for postconviction 

relief--a basis for relief that could reasonably have been raised 
on direct appeal; § 46-21-105(2), MCA, expressly precludes him from 

doing so. We conclude that Sheppard is procedurally barred by 

§ 46-21-105(2), MCA, from raising his claim of error in sentencing. 

On that basis, we hold that the District Court did not err in 

denying the relief requested. 

Af f irmed. 

We concur: A f Chief Justice