August 6, 2013
BRUCE WAYNE McEVOY, Petitioner,
STATE OF MONTANA-LEROY KIRKEGARD, WARDEN OF MONTANA STATE PRISON, Respondent.
Petitioner Bruce Wayne McEvoy, by counsel (McEvoy), has filed a "Petition for Writ of Habeas Corpus or Other Appropriate Writ, " together with supporting brief. McEvoy is presently incarcerated at the Montana State Prison as a result of a sentence received in the Montana Twentieth Judicial District Court, Lake County, in Cause Number DC 87-91, following his conviction for misdemeanor assault, felony sexual intercourse without consent, and persistent felony offender. McEvoy was sentenced to 6 months in the county jail for the misdemeanor assault, 40 years at the Montana State Prison for the sexual intercourse without consent, and a consecutive 50 years at the Montana State Prison with 30 suspended, for the persistent felony offender (PFO) offense. He was declared ineligible for parole for 30 years.
McEvoy contends that he was wrongly sentenced for both the underlying felony and his PFO status, that the PFO sentence should have replaced the sentence for the underlying felony offense, and that therefore his sentence is facially invalid. He maintains that, with good time credit, he has already discharged the incarceration portion of his PFO sentence. McEvoy requests that we grant his writ of habeas corpus, order the Respondent to release him from custody, and vacate his sentence and order a new sentencing hearing before the Twentieth Judicial District Court.
Pursuant to our Order, the State of Montana has filed a response to McEvoy's petition. The State concedes that under State v. Gunderson, 2010 MT 166, 357 Mont. 142, 237 P.3d 124, a PFO sentence is intended to replace the sentence for the underlying felony, and therefore the sentence imposed on McEvoy constitutes a facially illegal sentence. Therefore, the State urges this Court to remand to the District Court for correction of the illegal sentence. The State does not, however, support McEvoy's request for immediate release.
Good cause appearing,
IT IS HEREBY ORDERED that McEvoy's petition for writ of habeas corpus is GRANTED. This matter is remanded to the District Court for prompt correction of the illegal sentence, at which time the court may consider the arguments of the parties for and against release and appropriate resentencing.
The Clerk of this Court shall provide a copy of this Order to all counsel of record.