August 6, 2013
LUKE SORAICH, Petitioner,
LEROY KIRKEGARD, Warden, Montana State Prison, Respondent.
Luke Soraich (Soraich) petitions for a writ of habeas corpus on grounds that he was illegally sentenced for deliberate homicide in 1997, in that the sentencing court failed to inquire as to whether Soraich wished to make a statement before it sentenced him. He cites the requirement set forth in § 46-18-115(3), MCA, that, "[e]xcept as provided in [listed situations not at issue here], the court shall address the defendant personally to ascertain whether the defendant wishes to make a statement and to present any information in mitigation of punishment or reason why the defendant should not be sentenced." At our request, the Attorney General has filed a response on behalf of the State of Montana.
The writ of habeas corpus is available to inquire into the cause of imprisonment or restraint and, if illegal, to deliver the petitioner from the imprisonment or restraint. Section 46-22-101(1), MCA. A habeas petitioner bears the burden of convincing the Court that a writ should be issued. Miller v. Eleventh Judicial Dist. Court, 2007 MT 58, ¶14, 336 Mont. 207, 154 P.3d 1186. A sentencing court's failure to abide by a statutory requirement does not necessarily result in an illegal sentence; it may result in a sentence that is objectionable, but not illegal. State v. Johnson, 2011 MT 286, ¶14, 362 Mont. 473, 265 P.3d 638.
The 90-year sentence imposed upon Soraich for deliberate homicide, plus an additional 10 years for the use of a weapon, falls within authorized statutory parameters. Section 45-5-102(2), MCA, (1995). The portion of the sentencing transcript attached to Soraich's petition for writ of habeas corpus does not indicate that the sentencing court asked Soraich specifically whether he wished to make a statement. Part of a statement presented to the court by Soraich's counsel is included in the transcript excerpt. At the end of the transcript excerpt, Soraich's counsel responded "no" to the sentencing court's question as to whether any reason existed why sentence should not be imposed. The transcript does not show that Soraich, or his counsel, gave the court any indication at that time that he wished to speak personally. Soraich similarly did not raise this issue in his subsequently-filed appeal of his conviction, or in his petition for postconviction relief.
We conclude that the statutory violation apparently present here amounts to an "objectionable" sentence, to which Soraich failed to timely object. We further conclude that it does not render Soraich's sentence illegal.
IT IS ORDERED that the petition for writ of habeas corpus is DENIED.
The Clerk is directed to provide copies of this order to all counsel of record.