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: ForAppellant: 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 CountyAttorney, Deer Lodge,Montana

Filed: Submitted on Briefs: January 30, 1997 ~~~id~d: February 13, 1997Justice 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 shallbe published by its filing as apublic documentwith 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 fromthe 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 removedhimself from official detention. On that basis, the District Court convicted him of the offense of escape and imposed a three-yearsentence 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 Sheppardhad not established good cause for withdrawal of the plea. On March 14, 1996, Sheppard filed a pro se document with the 2District Court captioned "Motionfor 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 "Motionfor Correction of Sentence or Habeas Petition PostConviction Relief." He subsequently filed another document captioned in the same alternative manner. TheDistrict Court held ahearing at which Sheppard testified. Thereafter,it concluded that Sheppard properly was sentenced under the felony sentencingprovisions 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 originallycaptioned amotion for correctionof 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 forhabeas corpus, orpetition for postconviction relief. In any event,we are not bound by aparty'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. 3Sheppard 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, statutoryor jurisdictional bases--arewithin the purview of §§ 46-21-101et seq.,MCA,Montana'spostconviction relief statutes. Indeed, § 46- 21-101,MCA, specificallyprovides that, under the circumstances set forth therein,apersonmay petition the court that imposed the sentence "tovacate, 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'seffort to challenge the validity of his sentence-- brought some 21 months after the conviction and sentence on his guiltyplea 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'sconviction, 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 whichmight 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 forpostconviction 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 situationpresentlybefore us. Thus,while Sheppard could not have appealed from the escape convictiononhis guiltyplea 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--viapetition for postconviction relief--abasis for relief that could reasonably have been raisedon 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, fromraisinghis claim of error in sentencing. On that basis, we hold that the District Court did not err in denying the relief requested. Affirmed.

We concur: 

## A

Chief Justice 

# f