On September 1, 2010, Benny Roe Stewart (Stewart) was convicted by a jury of Incest, a felony, in violation of §45-5-507(1), MCA. He was sentenced to a 50-year term of imprisonment, with 20 years suspended. The District Court also declared him ineligible for parole until he completes Phases I and II of sex offender treatment in prison. Stewart's conviction was affirmed on appeal. State v Stewart, 2012 MT 317, 367Mont. 503, 291 P.3d 1187.
Stewart alleges in his petition for a writ of habeas corpus that his conviction is facially invalid based upon the legislature's failure to define the essential elements of the crime. Stewart claims that the legislature has failed to specify what "gratify" means in the context of sexual contact and, as a result, he has been deprived of his constitutional rights to equal protection and due process of law.
Stewart asserts that "gratify" is an element that the prosecution was required to prove. Stewart insists that the "contact may have been to satiate any of "a myriad of compulsions and psychoses." However, he does not identify any compulsion or psychosis that he suffers from. Stewart is claiming that the Legislature has failed to define "gratify" or "sexual gratification, " which renders §§ 45-2-101(67) and 45-5-507, MCA, unenforceable.
Section 45-2-101(67), MCA, provides:
"Sexual contact" means touching of the sexual or other intimate parts of the person of another, directly or through clothing, in order to knowingly or purposely:
(a) cause bodily injury to or humiliate, harass, or degrade another, or
(b) arouse or gratify the sexual response or desire of either party.
Presently the error is that without a "definition" then all potential reasons that may have caused one of the parties to participate in (enjoy?) the "contact” would then fall under the heading of "sexual" gratification", (sic) Without a definition then, as it is presently "vaguely" worded, all "contact" that satiates a desire of any sort falls under the generic ("undefined") label to "gratify" "sexually."
By analogy, he argues that we determined in Columbia Falls Elementary School Dist. No. 6 v. State, 2006 MT 69, 326 Mont. 304, 109 P.3d 257, the legislature's failure to define a "quality education" resulted in settled law that all statutes which are predicated upon a "mandatory operative element" that has not been defined by the legislature are unenforceable. He also cites a concurrence and dissent in Clark Fork Coalition v. Mont. Dep't. Envt'l. Quality, 2008 MT 407; 347 Mont. 197; 197 P.3d 482. Both of these cases related to the exercise of administrative law by government agencies and are therefore inapplicable to Montana's criminal code.
Stewart also reasons that since his incarceration arises from facially invalid statutes, the sentence is unenforceable. He points to Lott v. State, 2006 MT 279; 334 Mont. 270; 150 P.3d 337, to support his position that statutory restrictions on habeas corpus are unconstitutional.
Lott offers no support for a claim that a conviction is invalid. Stewart has not claimed that his sentence is invalid as did Lott. Lott did not determine that statutory restrictions on habeas corpus were unconstitutional. State v. Guillaume, 1999 MT 29, ¶ 16, 293 Mont. 224, 975 P.2d 312 and State v. Whitehorn, 2002 MT 54, ¶45, 309 P. 63, 50 P.3d 121 had not been decided when Lott's appeal would have been timely filed. By failure to appeal, Lott had exhausted his appeal rights. We decided that: "as applied to a facially invalid sentence—a sentence which, as a matter of law, the court had no authority to impose—the procedural bar created by § 46-22-101(2), MCA, unconstitutionally suspends the writ [of habeas corpus]. Lott, ¶ 22. Lott is inapplicable to allegedly illegal convictions which ordinarily must be considered in postconviction proceedings under Title 46, Chapter 21.
Based upon the foregoing,
IT IS ORDERED that Stewart's petition for a writ of habeas ...