### IN THE SUPREME COURT OF THE STATE OF MONTANA 1996

WALTER J

### . MANULA, Petitioner and Appellant,

v. MIKE MAHONEY, Warden of the Montana State Prison,Department of Corrections. CRAIG THOMAS, Executive Secretary, BOARD OF PARDONS, et al., Respondents and Respondents.

APPEAL FROM: District Court of the Fifth Judicial District, In and for the County of Beaverhead, The Honorable Frank M. Davis, Judge presiding.

COUNSEL OF RECORD: ForAppellant: Walter J.Manula, Pro Se,Deer Lodge,Montana For Respondents: Hon. Joseph P.Mazurek, Attorney General, Jennifer Anders,Ass't Attorney General, Helena,Montana LoisAdams,Legal Counsel,Departmentof Corrections and Human Services, Helena,Montana Calvin J. 

### Erb,Deputy County Attorney, Dillon, Montana

Submitted on Briefs: November 14, 

### 1996 ~~~id~d: December 10, 1996 Filed:

### 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 followingdecision shall not be cited asprecedent and shallbepublished by its filing as apublic documentwith the Clerk of the Supreme Court and by a report of its result to State Reporter Publishing Company and West Publishing Company. Walter J.

### Manula (Manula),appearingpro se,appeals from the order of the Fifth Judicial District Court, Beaverhead County, denying his petition for postconviction relief. We affirm. The sole issue on appeal is whether the District Court erred in concluding that Manula was not entitled to the relief he requested and in denyinghis petition for postconviction relief on that basis. InAugust of 1990,the State of Montana (State) chargedManula with having committed the felony offenses of sexual intercourse without consent and aggravated kidnapping (the initial charges). The State subsequently charged Manula with additional felonies allegedly committed while he was free on bond after entering not guilty pleas to the initial charges, including sexual intercourse without consent and aggravated kidnapping (the second charges). Manulapleaded not guilty to the second charges inOctober of 1990. A 

### jury convicted him of the second charges in the summer of 1991. Prior to sentencing on the second charges, Manula and the State entered into a plea bargain agreement to dispose of theinitial charges. Among other things,Manula agreed not to appeal his convictions on the second charges in return for specific sentencing recommendations by the State on both the initial and second charges. Manula executed an Acknowledgement of Waiver of Rights by Plea of Guilty regarding the initial charges and entered Alford pleas on those charges. In October of 1991, the District Court accepted Manula's guilty pleas on the initial charges. The court adopted the terms of the plea agreement and sentenced Manula, on all charges, to 40 years' imprisonment with the last 20years suspendedon conditions. InOctober of 1993,Manula filedapetition forpostconviction relief with this Court alleging, among other things, a denial of his right to appeal,by reasonof his attorney's failure to file an appeal, and ineffective assistance of counsel. Relying on decisions from the United States Court of Appeals for the Ninth Circuit and other courts,we determined that a waiver of the right to appeal isnot invalid so long as thewaiver is done voluntarily, intelligentlyandwithunderstandingof the consequences. Petition of Manula (1993), 263 Mont. 166, 168, 866 P.2d 1127, 1128

(citations omitted). In Manula's case, his execution of the Acknowledgement of Waiver of Rights which contained an express waiver of the right to appeal, together with the district court's specific inquiry about the waiver, established that the waiver was done voluntarily, intelligently and with understanding of the consequences. On that basis,we held that Manula had effectively waived his right of direct appeal. Petition of Manula, 866 P. 2d at1129. With regard to Manula's other claims for postconviction relief, we looked to the procedural bar contained in § 46-21- 105(2),MCA. Under that statute, a postconviction petitioner who has been afforded adirect appeal isprecluded from raisinggrounds for relief via postconviction proceedings that could reasonably have been raised on direct appeal. Petition of Manula, 866 P.2d at 1129. Applied to Manula's circumstances, we determined that he had been afforded a direct appeal but voluntarily waived his right to take the appeal. On that basis, we held that Manula was procedurally barred under § 46-21-105 (2) 

### , MCA, from raising the other claims contained in his petition for postconviction relief. Petition of Manula, 866 P.2d at 1129. Manula filed thepetition for postconviction relief presently at issue on March 29, 1996, pursuant to § 46-21-101,MCA. He sought modification of the sentencing order onboth the initial and second charges which was filed October 7, 1991,with regard to an alleged ambiguity in that order relating to completion of the sexual offender program at the Montana State Prison. The District Court denied his petition and Manula appeals. Did the District Court err in concluding that Manula was not entitled to the relief sought and in denying his petition for postconviction relief on that basis? We review conclusions of law contained in a district court's denial of apetition for postconvictionrelief to determine whether the court's interpretation of the law is correct. State v. Baker

(1995),272 Mont. 273, 280, 901 P.2d 54, 58.Postconviction relief proceedings in Montana are governed by statute. Manula's petition was filed under § 46-21-101,MCA, the statutegenerally authorizing petitions forpostconviction relief. In addition,Manula's petition was timely filed pursuant to § 46- 21-102,MCA, which requires such a petition to be filed "within 5 years of the date of the conviction." However, § 46-21-105(1) 

### , MCA,provides inpertinent part that all grounds for relief claimed by a petitioner forpostconviction relief must be raised in the original or amendedpetition. Section 46-21-105(I),MCA, also provides that grounds for relief not so raised "are waived unless the court on hearing a subsequent petition finds grounds for relief that could not reasonably have been raised in the original or amended petition." As discussed above,Manula filed apetition for postconviction relief with this Court in 1993. That petition did not raise the grounds for relief raised inManula's current petition which relate to the sentencing order entered in 1991, and Manula advances no reasonable explanation why they could not have been raised in his original petition. Accordingly,we conclude that Manula's claim for relief relating to the 1991 sentencing order is barred by § 46-21-105(1), MCA

### . We hold that the District Court did not err in concluding that Manula was not entitled to the relief requested and in denying his petition for postconviction relief on that basis. Affirmed.We 

### concur: