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Vernon Kills on Top v. Sentence Review Division in Supreme Court of State of Montana

Supreme Court of Montana

October 22, 2013



Vernon Kills on Top (Petitioner) has filed a petition for writ of supervisory control requesting this Court's exercise of supervision over the Sentence Review Division (Division). We granted time for the Division and the Attorney General to respond, and their responses have been filed.

Petidoner alleges that the Division is proceeding under a mistake of law in its application of Montana law and the Division's Rules, and argues he is raising an issue of statewide importance that will affect other defendants who appear before the Division. However, the petition almost entirely addresses case-specific objections to the Division's handling of his case.

Petitioner was convicted of aggravated kidnapping, robbery, and deliberate homicide after a jury trial in 1988. This Court affirmed his original sentences, including the death penalty for aggravated kidnapping and deliberate homicide. State v. Kills on Top, 243 Mont. 56, 793 P.2d 1273 (1990). We later vacated Pedtioner's death sentence and ordered that Pedtioner be resentenced in response to his petition for postconviction relief Kills on Top v. State, 279 Mont. 384, 928 P.2d 182 (1996). On remand, Petitioner was sentenced to 40 years for robbery, life in prison for deliberate homicide, and life in prison without parole for aggravated kidnapping, to run consecutively. Petitioner appealed, and this Court affirmed Petitioner's 1998 sentence. Kills on Top v. State, 2000 MT 340, 303 Mont. 164, 15 P.3d422.

In 2001, Petitioner filed a petition for writ of habeas corpus in federal court and, after ten years of litigation, all of Petitioner's claims were denied. The U.S. Supreme Court denied his petition for certiorari in 2011. Kills on Top v. Mahoney, 131 S.Ct. 2463, 179 L.Ed.2d 1226 (2011) (cert, denied). In January 2012, Petitioner filed an application for review of his 1998 sentence by the Division. Following briefing, a hearing on the petition was conducted by the Division on November 1, 2012. The Division denied the petition on November 19, 2012, and Petition filed an application for rehearing on January 17, 2013. On February 26, 2013, the Division denied the application for rehearing.

Petitioner argues that the Division permitted introduction of statements and arguments not introduced at Petitioner's sentencing hearing in violafion of Division Rule 18, which provides that the Division will not consider matters or developments subsequent to the imposition of sentence. Petitioner also argues that the Division failed to consider evidence and arguments supporting reduction of Petitioner's sentence, including proportionality of Petitioner's sentence in comparison with the sentence of his co-defendant, Diane Bull Coming, in violation of Division Rule 16, which directs the Division to consider state correctional policy in assessing a petitioner's sentence.

The State answers that the petition is dilatory, and that the long years that have passed since sentencing and since the deadline for filing a petition necessitate dismissal of the petition for laches and for Pefitioner's counsel's "abuse of the sentence review process." Even if the merits of the petition were considered, the State argues that, first, the evidence objected to by Petitioner was in fact available to the sentencing judge and that, in any event, Petitioner's concern about extraneous material was raised at the hearing and addressed by the Division when Judge Dayton stated to Petitioner's counsel: "We know what was available to the sentencing court, we know what the rules requires us to confine our deliberations to. You and Mr. Kills on Top can be assured that [we'll] confine our deliberations to the court." In the Division's order denying the application for reconsideration, the Division indicated that no information that was not available to the sentencing judge was considered by the Division in rendering its decision.

The State also argues that the Division was properly within its purview to reject Petitioner's proportionality comparison to the sentence received by Bull Coming, and assess this case on its own facts, and that the Division's actions here do not constitute a "gross injustice" necessitating supervisory control. M. R. App. P. 14(3)(a). The Division's response indicates that the Legislature has provided for no appeal from decisions from the Division, citing § 46-18-905(1), MCA, and that this proceeding is an improper attempt to appeal from the Division's determination.

The Division correctly notes there is no provision for direct appeal from the Division to this Court. "The proper basis by which this Court may review a challenge to a decision of the Sentence Review Division is through a petition for extraordinary relief" Driver v. Sentence Review Division, 2010 MT 43, ¶ 9, 355 Mont. 273, 227 P.3d 1018 (citing Ranta v. State, 1998 MT 95, P 12, 288 Mont. 391, 958 P.2d 670). Petitioner has filed for supervisory control and argues, in order to come within the rules governing supervisory control, that the issues here are of statewide importance and that the Division is proceeding under a mistake of law. See M. R. App. P. 14(3)(a), (b). However, the Division's final decision has been made and there is no proceeding over which to exercise control. We conclude that the standards for supervisory control over the Division have not been established.

Further, even if we were to deem the petition as one for extraordinary relief from the Division's decision, and deem the petition to be timely, we conclude that Petitioner has not demonstrated a basis for relief The Division carefully confined its review to the appropriate evidence. After considering Petitioner's arguments regarding sentencing policies, proportionality, and excessiveness, the Division concluded that "the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive." Contrary to Petitioner's arguments, the Division's determination that Petitioner's comparison between his sentence and Bull Coming's sentence was "neither probative nor persuasive" was not a mistake of law. The Division engages in "an appropriately broad review of the totality of the facts and circumstances of each case, which we have previously described as a review 'for equity, disparity, or considerations of justice by the Sentence Review Board.'" Driver, ¶ 20 (citation omitted). "The Division's consideration is not cabined by rigid guidelines, and a defendant can rightly appeal to the Division's judges on equitable grounds such as fairness, consistency and uniformity, as can the State." Driver, ¶ 20. We conclude the Division did not err in making its determination.[1]

IT IS HEREBY ORDERED that the petition is DENIED and DISMISSED. Petitioner's request to file a reply brief to the ...

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