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Wiley v. Kirkegard

Supreme Court of Montana

October 15, 2013

SENECA LEE WILEY, Petitioner,
v.
LEROY KIRKEGARD, Respondent

ORDER

Petitioner Seneca Lee Wiley (Wiley) has filed a petition for a writ of habeas corpus. He claims that a 10-year Department of Corrections (DOC) commitment was unlawfully imposed without all but 5 years being suspended, and that a suspended sentence that he had yet to begin serving was revoked illegally.

The facts provided in support of the petition are sparse. We have therefore consulted electronic records for clarification of Wiley's sentences and commitments. The record indicates that on July 24, 2013, revocation sentences were pronounced in two 2006 Lewis and Clark County District Court felony convictions. On a Criminal Endangerment conviction, Wiley received a 5-year revocation commitment to DOC, and on a conviction for Conspiracy for Criminal Possession of Dangerous Drugs, the Court imposed a similar 5-year commitment to DOC. The petition indicates the two sentences were to run consecutively.

Thereafter, on August 28, 2013, the Cascade County District Court imposed a five-year revocation commitment on a Burglary conviction stemming from an offense committed in April, 2007. Wiley does not state whether this sentence was to run consecutively or concurrently to his other pending commitments, and the electronic record does not offer this information.

Wiley argues he is entitled to be resentenced because § 46-18-201 (3)(a)(iv)(A), MCA, requires that all but the first 5 years of a DOC commitment must be suspended. He claims that his present commitment constitutes a 10-year DOC commitment. We disagree. Section 46-18-203 (7)(a), MCA, is applicable to revocation sentences and prescribes the options available to a court:

If the judge finds the offender has violated the terms and conditions of the suspended or deferred sentence, the judge may: (i) continue the suspended or deferred sentence without a change in conditions; (ii) continue the suspended sentence with modified or additional terms and conditions; (iii) revoke the suspension of sentence and require the offender to serve either the sentence imposed or any sentence that could have been imposed that does not include a longer imprisonment or commitment term than the original sentence; or (iv) if the sentence was deferred, impose any sentence that might have been originally imposed. (Emphasis added.)

Nothing in the revocation statute precludes two separate 5-year commitments to DOC from being served consecutively.

Next, Wiley claims that he was originally sentenced to DOC for 5 years, all suspended, for Conspiracy for Criminal Possession of Dangerous Drugs, to run consecutively with the sentence for Criminal Endangerment. Pursuant to State v. Stiffarm, 2011 MT 9, ¶ 8, 359 Mont. 116, 250 P.3d 300, he claims that the suspended sentence could not be revoked before he began serving it. He argues that because he would not have begun serving the suspended portion of the sentence until 2017, it was unlawful for the court to revoke that portion of the sentence.

We determined the applicability of Stiffarm in State v. Cook, 2012 MT 34, 364 Mont. 161, 272 P.3d 50. We reasoned that when an offender appeals the revocation of a suspended sentence, he is attacking not the validity of his conviction, but the validity of the sentence. Revocation proceedings do not constitute a criminal adjudication; rather, they are administrative actions to determine if a parolee or probationer has violated the conditions of parole or probation. Cook, ¶ 16.

In Stiffarm, we invited the Legislature to amend and clarify § 46-18-203(2), MCA, if our interpretation was inconsistent with the Legislature's intent. Stiffarm, ¶¶ 19-20. In response, the Legislature enacted language that allows filing a petition to revoke "[e]ither before the period of suspension or deferral has begun or during the period of suspension or deferral but not after the period has expired." Section 46-18-203(2), MCA (2011), effective April 20, 2011. Consequently, we concluded that the District Court did not lack authority to revoke Cook's suspended sentence even though the petition was filed two days before the sentence commenced. Cook, ¶¶ 15-16. We similarly conclude here that the District Court was acting lawfully when it revoked Wiley's suspended sentence before the period of suspension had begun.

Habeas corpus is available to inquire into the cause of imprisonment or restraint, and if illegal, to be delivered therefrom. Section 46-22-101(1), MCA. However subsection (2) confines the scope of habeas corpus relief:

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. The relief under this chapter is not available to attack the legality of an order revoking a suspended or deferred sentence.

Section 46-22-101(2), MCA.

Both arguments Wiley has advanced relate to convictions of one who has been adjudged guilty and has exhausted the remedy of appeal (by failure to appeal). Both arguments also attempt to challenge the legality of an order revoking a suspended or deferred sentence. Accordingly, habeas corpus affords Wiley no remedy.

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

The Clerk is directed to provide a copy hereof to counsel of record and to Seneca Lee Wiley.


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