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Hoven v. Kirkegard

Supreme Court of Montana

August 14, 2013

ZACHARY GLEN HOVEN, Petitioner,
v.
WARDEN KIRKEGARD, STATE OF MONTANA, DEPARTMENT OF CORRECTIONS, Respondent.

ORDER

Appearing pro se, Petitioner Zachary Glen Hoven (Hoven) filed a petition for a writ of habeas corpus in which he claims that he was incarcerated in Montana State Prison for nine months and 29 days while serving a suspended sentence and that he received ineffective assistance of counsel related to the allegedly illegal incarceration. Hoven seeks monetary damages.

The Department of Corrections (DOC) has filed a response. On July 24, 2013, Hoven filed a motion to file documents to supplement this petition. DOC has not filed an objection. Having considered the matter, we conclude that some of documents submitted are helpful to comprehending the petition. Therefore,

The motion to file information to supplement the Petition for a Writ of Habeas Corpus is GRANTED, and we will consider the pertinent information here.

In 2005, Hoven was convicted as a juvenile and resentenced in Yellowstone County Cause No. DC 06-0845[1] of a variety of misdemeanor and felony offenses, for which he was placed on probation until he reached the age of 25. Hoven was arrested for committing several other offenses in Yellowstone County. In Cause No. DC-06-0860, in exchange for dismissal of two counts, Hoven pled guilty to three separate counts of felony deceptive practices. The court imposed a five-year DOC commitment on one count, and five-year suspended sentences on each of the other counts, to run consecutively with the five-year DOC commitment. The Judgment and Order also specified the five-year DOC commitment would run consecutively with the sentence in DC 06-0845.[2] Hoven received 254 days of jail credit.

In DC 06-0845, the District Court revoked the suspended sentence and resentenced Hoven to the custody of DOC pursuant to § 46-18-201, MCA, until the age 25, to be placed in "an appropriate community based program, facility or a State Correctional Institution." The sentence was specified to run concurrently with the sentence in DC 08-0860, and 246 days of jail credit.

Per the sentence calculation information Hoven provided in the supplemental filing, DOC calculated the prison term in DC 06-0860 to expire on October 24, 2011, and the sentence in DC 06-0845 to discharge on Hoven's 25th birthday, August 10, 2012, when he was released from prison.

Hoven is presently incarcerated in the Yellowstone County Detention Center pending charges unrelated to those addressed above. His counsel filed a Memorandum in Support of Recommendation for Disposition in which she challenged the calculation of the sentence previously imposed in DC-06-0860. The argument made was that both his counsel and Hoven believed that the court imposed a five-year prison term in DC 06-860, to be followed by 10 years, suspended. Nothing in the record before us indicates whether the District Court has ruled upon the April 30, 2013 memorandum.

We secured a copy of the May 30, 2013 minute entry from Yellowstone County Cause No. DC-06-0860, which indicates the District Court revoked the previous sentences and imposed a term of 3, 271 days for placement in an appropriate institution on each Count I and II. All except five years of the sentences were suspended, "placing the defendant on probation under the rules and regulations of the State Department of Probation and Parole with special conditions to include participation in the Nexus program." The sentence in Count II is to run concurrently with Count I. To date, no written order has been filed.

Hoven has been jailed pending disposition of new charges and his sentence in DC-06-0860 was revoked and new sentence has been imposed as indicated in the minute entry. Therefore, we consider only the threshold issue of whether this petition is moot. An issue becomes moot when a change in circumstances leaves no controversy to be decided. Cape v. Crossroads, 2004 MT 265, ¶ 25, 323 Mont. 140. Sebastian v. Mahoney, 2001 MT 88, ¶ 8, 305 Mont. 158, 25 P.3d 163. We do not answer moot questions. Shamrock Motors, Inc. v. Ford Motor Co., 1999 MT 21, 19, 293 Mont. 188, 974 P.2d 1150. There remains no controversy for this Court to decide under habeas corpus. We conclude that the discharge of Hoven's prison terms in Cause No. DC-06-0860 (October 24, 2011) and in DC-06-0845 (August 10, 2012), rendered this matter moot.

Assuming arguendo, Hoven was entitled to any relief based upon the argument his sentence was illegal because the sentence in DC-06-0845 exceeded five years, it is too late to raise the challenge when the prison term has been discharged. Hoven has already committed another crime and his sentence was revoked and he has been resentenced in DC 06-0860.

Should any question related to the Yellowstone County District Court's intended sentence remain, we defer the matter to the Yellowstone County District Court for clarification of the court's intention of when the 2007 revocation sentence in DC 06-0845 expired. Further, monetary damages are generally outside the scope of habeas corpus relief.

Hoven is cautioned that while represented by counsel, only his counsel should file motions and papers with this Court on his behalf. State v. Samples, 2005 MT 210, ¶ 15, 328 Mont. 242, 119P.3d 1191.

IT IS ORDERED that the petition for a writ of habeas corpus is DENIED.

The Clerk is directed to provide a copy hereof to the Yellowstone County District Court, Hon. Susan P. Watters, Presiding, counsel of record, Hoven's Yellowstone County Counsel, Nancy G. Schwartz, and counsel for the respondent.


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