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Carrell v. Kirkegard

Supreme Court of Montana

October 22, 2013

DANIEL JUSTIN CARRELL Petitioner,
v.
LEROY KIRKEGARD, Warden State of Montana Prison, Respondent

ORDER

Daniel Justin Carrell (Carrell) has filed a petition for a writ of habeas corpus in which he claims that he was coerced into proceeding without legal representation when he changed his plea to "guilty" in Yellowstone County District Court to charge of felony Driving Under the Influence of Alcohol (DUI).

Following his conviction, but before sentencing, it appears that Carrell absconded. Carrell states in the petition that he was arrested on a Yellowstone County warrant in San Luis Obispo, California.

Prior to his sentencing in Yellowstone County, on December 30, 2011, the State of Montana charged Carrell with another felony DUI in Ravalli County. The Ravalli County District Court committed Carrell to 13 months to the Department of Corrections (DOC), with a five-year suspended commitment to the DOC, to run concurrently with his sentence in Yellowstone County on April 15, 2012. The judgment and commitment did not specify which chemical dependency program that Carrell was required to complete. The judgment simply stated that if he "successfully completes the WATCh program or other residential alcohol treatment program operated or approved by the Montana Department of Corrections, the remainder of the 13 months shall be served on probation . ..."

The Yellowstone County District Court sentenced Carrell on June 8, 2013, to a 13- month DOC commitment, to run consecutively with the Ravalli County sentence, with 49 days of credit for time served, and an additional three-year consecutive suspended sentence. The judgment did not specify the treatment program Carrell must complete. The judgment required Carrell to complete, "a residential alcohol treatment program operated or approved by the Department of Corrections." The Yellowstone County sentence employs language similar to the Ravalli County sentence: "Upon Defendant's successful completion of a residential alcohol treatment program operated or approved by the Department of Corrections, the remainder of the THIRTEEN(13) MONTH sentence must be served on probation."

Condition No. 28 in the Yellowstone County Judgment requires Carrell to complete the WATCh program. The recommendation following condition 33 specifically references the WATCh program. The Ravalli County Judgment and commitment do not appear to contain any parallel requirement.

Carrell claims that the Ravalli County sentence takes precedence over the Yellowstone County sentence. He further argues that the Yellowstone County sentence "does not coincide" with the Ravalli County sentence.

Carrell maintains that he has completed the Chemical Dependency program in the Intensive Treatment Unit (ITU) in Montana State Prison. He argues that the ITU is equivalent to the WATCh program. Carrell asserts that statutory authorization allows DOC to place him in treatment while on probation after he has served 13 months in another treatment program. Carrell claims to have completed the ITU program. Carrell insists that his completion of the ITU program entitles him to complete the remainder of his 13-month mandatory sentence on probation.

The sentence pronounced most recently constitutes the controlling sentence. The court that imposed the most recent sentence determines whether the sentences run consecutively or concurrently. The Yellowstone County judgment credited Carrell with time served from July 10 through July 13, 2011, and from April 25 through June 8, 2012, and specified that the sentences would run consecutively.

Habeas corpus is available to "a person who has been adjudged guilty of an offense in a court of record and has exhausted the remedy of appeal." Section 46-22-101(2), MCA. Carrell failed to file an appeal to address any of these issues.

We refuse to exercise jurisdiction by way of habeas corpus when the petitioner has another available remedy. Carrell possesses a potential remedy to seek clarification of the court's intention or other relief from the Yellowstone County District Court.

Accordingly,

IT IS HEREBY ORDERED that Carrell's petition for a writ of habeas corpus is DENIED.

The Clerk is directed to provide a copy hereof to counsel of record and to Daniel Justin Carrell.


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