By way of a Petition for a Writ of Habeas Corpus, Jonathan Mark Evans (Evans) challenges the legality of his imprisonment. He also seeks leave to proceed without paying the filing fee.
Evans indicates that in August of 2001, he pled guilty to Felony Criminal Possession of Dangerous Drugs (Count 1) and Felony Theft, common scheme (Count II), in Flathead County District Court for which he received six-year deferred sentences, to be served concurrently. His deferred sentences were revoked in November of 2001, and he was committed to prison for five years, with one year suspended for Count I and ten years suspended, to be served concurrently, for Count 11. Evans states that he was released from prison in July of 2007 when he began serving the probationary sentences. In September of 2011, Evans' suspended sentences were revoked again and he was committed to prison. In this petition, Evans seeks dismissal of the underlying District Court Cause No, DC-01-075(A).
Evans claims that he was deprived of a fair trial before an impartial tribunal when Hon. Ted O. Lympus participated in the accusatory phase as well as the adjudicatory phase of the criminal proceedings in Cause No. DC-01-0175(A). He asserts that Judge Lympus was obliged to recuse himself from further participation in the case after he granted leave to file the information. Evans reasons that the District Court lacked subject matter jurisdiction to preside over the ensuing prosecution.
As a result, Evans claims that the subsequent proceedings against him are "void, " for deprivation of his due process rights and right to a fair hearing. Evans contends that he may raise this issue at any time. Based upon the allegedly void conviction and sentence, Evans claims that he is incarcerated illegally. Evans claims entitlement to his release from confinement.
Montana statutes allow commencement of a prosecution in district court upon an indictment by a grand jury. Sections 46-11-301 through -332, MCA. A prosecutor also may apply directly to the district court for permission to file an information. Section 46-11-201, MCA. The prosecutor's application and affidavit must identify supporting evidence that demonstrates probable cause to believe that the named defendant has committed an offense. The order granting leave to file the information determines probable cause and triggers the commencement of the prosecution. Sections 46-11-101(3) and-201, MCA.
This process contrasts with proceedings in jurisdictions that rely upon a grand jury indictment to determine whether sufficient evidence exists to charge a potential defendant with a specific criminal act. In those jurisdictions, the grand jury proceedings and criminal prosecution constitute entirely separate processes before different courts. Consequently, none of the citations that Evans has provided here is instructive or applicable.
"The writ of habeas corpus is not available to attack the validity of the conviction or sentence of a person who has been adjudged guilty of an offense in a court of record and has exhausted the remedy of appeal." Section 46-22-101(2), MCA. Evans has exhausted his appeal rights. This procedural bar applies to the present petition. The filing of the information is only a determination of probable cause, not a determination of guilt. Evans was convicted on his pleas of guilty and cannot show that the judgment of the District Court "constituted a violation, deprivation, infringement, or denial of his constitutional, statutory, or legal rights." Miller v. Eleventh Jud. Dist. Ct., 2007 MT 58, ¶ 14, 336 Mont. 207, 154 P.3d 1186. Nor can he demonstrate that he is serving a facially invalid sentence. Cf. Lott v. State, 2006 MT 279, ¶ 22, 334 Mont. 270, 150 P.3d 337
IT IS THEREFORE ORDERED that leave to proceed without paying the
filing fee is GRANTED. IT IS FURTHER ORDERED that the Petition for a ...