State v. F. Torres

07/18/2017
DA 15-0702
Case Number: DA 15-0702
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 177
STATE OF MONTANA,
Plaintiff and Appellee,
v.
FRANCO LEO TORRES,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis And Clark, Cause No. CDC 2008-211
Honorable Kathy Seeley, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Chief Appellate Defender, Moses Okeyo, Assistant Appellate
Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Madison L. Mattioli, Assistant
Attorney General, Helena, Montana
Leo Gallagher, Lewis and Clark County Attorney, Helena, Montana
Submitted on Briefs: May 24, 2017
Decided: July 18, 2017
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Appellant, Franco Leo Torres (Torres), appeals the orders of the First Judicial
District Court, Lewis and Clark County, which denied his motion to set aside a prior felony
conviction, and revoked his suspended sentence. We affirm and restate the issue as
follows:
¶2 Did the District Court err by revoking Torres’ suspended sentence?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 In 2008, Torres pled guilty to felony Partner or Family Member Assault (PFMA)
and received a three-year deferred sentence. In January 2009, Torres’ sentence was
revoked and he was sentenced to the Department of Corrections (DOC) for five years, with
two years suspended. After serving three years, Torres was released in January 2012 to
serve the suspended portion of his sentence.
¶4 In August 2013, while serving his suspended sentence, Torres was arrested for
felony PFMA in Yellowstone County. Citing this charge and alleging other probation
violations, the Lewis and Clark County Attorney’s Office filed a second petition for
revocation of Torres’ sentence. Torres denied the allegations of the petition and filed a
motion to set aside his 2008 PFMA conviction, arguing the pre-2013 PFMA statute was
unconstitutional as violating the equal protection provisions of the Montana and United
States Constitutions. The District Court denied Torres’ motion to set aside his previous
conviction, and Torres admitted to the violations set forth in the petition to revoke. He
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received a two-year sentence to the DOC, which was ordered to run concurrently with the
sentence imposed by the Yellowstone County District Court for Torres’ 2013 PFMA.
¶5 Torres appeals the District Court’s denial of his motion to set aside the 2008 PFMA
conviction and revocation of his suspended sentence.
STANDARD OF REVIEW
¶6 We review a district court’s revocation of a suspended sentence for abuse of
discretion and to determine whether the court’s decision was supported by a preponderance
of the evidence. State v. Muhammad, 2002 MT 47, ¶ 17, 301 Mont. 1, 43 P.3d 318; State
v. Adams, 2013 MT 189, ¶ 11, 371 Mont. 23, 305 P.3d 808. Further, we review a district
court’s conclusions of law for correctness. In re M.W., 2012 MT 44, ¶ 9, 364 Mont. 211,
272 P.3d 112; State v. Knudson, 2007 MT 324, ¶ 11, 340 Mont. 167, 174 P.3d 469.
DISCUSSION
¶7 Did the District Court err by revoking Torres’ suspended sentence?
¶8 Torres argues a revocation proceeding “is as good a venue as any to allege illegality
of an imposed sentence for the underlying offense.” He presents a constitutionally-based
challenge to his 2008 PFMA conviction, arguing that such “collateral challenges” to prior
convictions are permissible pursuant to State v. Maine, 2011 MT 90, 360 Mont. 182, 255
P.3d 64. Alternatively, recognizing that we were, in his words, “disinclined to consider []
the unconstitutionality” of the PFMA statute in State v. Watts, 2016 MT 331, 286 Mont. 8,
385 P.3d 960, because the issue had not been preserved, Torres asks that we review his
challenge pursuant to State v. Lenihan, 184 Mont. 338, 602 P.2d 997 (1979), or the plain
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error doctrine. Turning to the merits of his challenge, Torres cites our decision in State v.
Theeler, 2016 MT 318, 385 Mont. 471, 385 P.3d 551, which recognized that the former
version of § 45-5-206, MCA, violated equal protection, but criticizes what he describes as
the “patch-fix” remedy of severance we adopted there. See Theeler, ¶ 14 (severing the
phrase “with a person of the opposite sex” from § 45-5-206(2)(b), MCA). He argues the
statute constitutes an unconstitutional “felony enhancement” and should be completely
invalidated.
¶9 Torres’ numerous arguments are wrapped around the proverbial and procedural
axle. First, this is a sentence revocation proceeding on Torres’ original 2008 PFMA
conviction, the sentence he is still serving. Although Torres claims to be raising a
“collateral challenge” to a prior conviction, of the nature addressed in Maine, to prevent a
felony “enhancement,” that is not the situation here. Maine addressed challenges to “a
prior conviction offered for enhancement purposes.” Maine, ¶ 32. Unlike Maine, no prior
conviction is being offered to enhance a new charge in this proceeding, which concerns
only the sentence for the original 2008 PFMA conviction. Torres’ arguments under Maine
could be pursued in a subsequent criminal proceeding in which the State seeks to use his
2008 conviction to enhance a new charge, but not within a revocation proceeding on
Torres’ original conviction. In a sentence revocation proceeding, the conviction is not at
issue.
¶10 Torres’ argument that a revocation proceeding “is as good a venue as any to allege
illegality of an imposed sentence for the underlying offense,” runs counter to longstanding
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precedent. In Muhammad, ¶ 22, we held that we were “without jurisdiction to review the
legality” of Muhammad’s original sentence in a revocation proceeding, where Muhammad
had not challenged his original sentence by appeal.1 Likewise, in State v. White, 2008 MT
464, ¶ 20, 348 Mont. 196, 199 P.3d 274 (overruled in part on other grounds by State v.
Tirey, 2010 MT 283, ¶ 27, 358 Mont. 510, 247 P.3d 701), we held that “White may not,
within the context of the [2007] revocation proceeding, challenge the legality of the
conditions imposed on her 1997 suspended sentence, as such a challenge is untimely.”). In
In re M.W., ¶ 12, we concluded that “M.W. did not appeal from the order imposing the
registration requirement entered by the Youth Court in July 2009. . . . [T]he challenge he
now attempts to make to the original imposition of the requirement has been forfeited.”
See also Adams, ¶ 17 (“Adams did not challenge the 2007 Sentence until the State filed a
petition to revoke in 2012, and his challenge is untimely.”). As recognized by the federal
courts, “a supervised release revocation proceeding is not the proper forum for a collateral
attack on the conviction or sentence that resulted in the term of supervised release.” United
States v. Warren, 335 F.3d 76, 77 (2nd Cir. 2003). Torres is improperly attempting to
“collaterally” attack his 2008 PFMA conviction within a sentence revocation proceeding
involving that same conviction. Essentially, Torres seeks a second chance to appeal and
raise issues he failed to raise when he did not appeal from his conviction.
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We have subsequently clarified the meaning and use of the term “jurisdiction.” State v.
Garrymore, 2006 MT 245, ¶ 10 n.1, 334 Mont. 1, 145 P.3d 946.
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¶11 The State argues, regardless of whether Torres could challenge his conviction in a
revocation proceeding, he previously waived his constitutional challenge to the PFMA
statute in 2008 when he voluntarily pled guilty, citing Watts. In Watts, the defendant pled
guilty to PFMA pursuant to a plea agreement, which did not preserve a right to challenge
his conviction, and affirmatively stated he was waiving his appeal rights. Watts, ¶ 10. We
held that “Watts has not preserved the right to challenge his conviction based on the
constitutionality of the underlying statute.” Watts, ¶ 10. Watts was premised on a long
line of authority holding the knowing and voluntary entry of a guilty plea waives all
non-jurisdictional defects and defenses, including claims of constitutional rights violations
which occurred prior to the plea. Watts, ¶ 9; see also State v. Lindsey, 2011 MT 46, ¶ 19,
359 Mont. 362, 249 P.3d 491; State v. Pavey, 2010 MT 104, ¶ 11, 356 Mont. 248, 231 P.3d
1104; State v. Kelsch, 2008 MT 339, ¶ 8, 346 Mont. 260, 194 P.3d 670; State v. Rytky,
2006 MT 134, ¶ 7, 332 Mont. 364, 137 P.3d 530; State v. Gordon, 1999 MT 169, ¶ 23, 295
Mont. 183, 983 P.2d 377; State v. Turcotte, 164 Mont. 426, 428, 524 P.2d 787, 788-89
(1974).
¶12 As in Watts, Torres forfeited his constitutional challenge of the PFMA statute when
he pled guilty, in 2008, and, consistent therewith, we decline to review the matter pursuant
to Lenihan or the plain error doctrine.
¶13 Affirmed.
/S/ JIM RICE
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We concur:
/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA
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