In the instant Petition for Writ of Habeas Corpus, Johnny Lee Knudsen (Knudsen) claims that the Sixteenth Judicial District Court, Custer County, Hon. Gary Day presiding, illegally sentenced him to the Department of Corrections (DOC) for a period of twenty years, with ten years suspended, in violation of § 46-18-20 l(3)(d)(i), MCA (2007). He also argues that the District Court illegally sentenced him for his underlying felonies and then again as a persistent felony offender (PFO). For relief, Knudsen requests that we free him from his confinement and grant any other relief that justice so requires. The Attorney General has filed a response.
Knudsen was convicted of two counts of felony theft, one count of burglary, and one count of misdemeanor theft. The District Court sentenced him to a DOC commitment for a period of three years for each felony theft, concurrent with five years for the burglary, concurrent with six months in jail for the misdemeanor theft, with all but sixty days suspended. The District Court also sentenced Knudsen as "a Persistent Felony Offender to the Department of Corrections for a period of twenty (20) years, with ten (10) years suspended, " and stated "[i]f prison time is imposed on Counts 1, 2, 3, and 4, above, those sentences shall run consecutive to the sentence for the persistent felony offender."
Knudsen first argues that his sentences violate § 46-18-20l(3)(d)(i), MCA (2007), which provides that "all but the first 5 years" of a commitment to the department of corrections must be suspended. In State v. Hicks, 2006 MT 71, ¶ 46, 331 Mont. 471, 133 P.3d 206, we applied this provision and reversed Hicks' sentence to the DOC for fourteen years with no time suspended. Hicks, ¶ 46. Hicks requested that we suspend nine years of his sentence to bring it within statutory parameters, but because we were unable to determine whether the District Court would find fourteen years with nine years suspended to be an adequate sentence, we remanded for resentencing. Hicks, ¶¶ 43, 46.
Here, the District Court sentenced Knudsen to the DOC for twenty years with ten years suspended. Based on the plain language of § 46-18-20l(3)(d)(i), MCA (2007), and our decision in Hicks, Knudsen's sentence is unlawful—the District Court did not suspend all but the first five years.
Secondly, Knudsen argues and the Attorney General concedes that the District Court also improperly sentenced Knudsen because the sentences on the thefts and burglary were imposed separately from the PFO sentence. In State v. Gunderson, 2010 MT 166, ¶54, 357 Mont. 142, 237 P.3d 74, we held that "sentences imposed based on an offender's status as a persistent felony offender replace the sentence for the underlying felony." (Emphasis in original.) We have also determined that "regardless of whether the two separate sentences fall within the parameters of the PFO statute, two separate sentences are illegal." State v. Johnson, 2010 MT 288, ¶17, 359 Mont. 15, 245 P.3d 1113 (reversing the district court and remanding for resentencing). Finally, the District Court's PFO sentence committed Knudsen to the DOC, but § 46-18-502, MCA (2007), provides that "a persistent felony offender shall be imprisoned in the state prison . . . ." (Emphasis added.)
When a facially illegal sentence is imposed, habeas relief is appropriate. As the Attorney General correctly notes, we have granted habeas relief under similar circumstances on the ground that separately sentencing an offender for the underlying offense, and then again as a PFO, undermines the integrity of the sentence as a whole and requires resentencing. Larsen v. State, 362 Mont. 543, 272 P.3d 124 (2011). Further, "when a portion of a sentence is illegal, the better result is to remand to the district court to correct the illegal provision." State v. Heafner, 2010 MT 87, ¶11, 356 Mont. 128, 231 P.3d 1087. As we held in Hicks, discussed above, the sentencing errors here require resentencing. Thus, for the foregoing reasons:
IT IS HEREBY ORDERED that Knudsen's petition for a writ of habeas corpus is GRANTED IN PART. This matter is REMANDED to the Sixteenth Judicial District Court, Custer County, for resentencing. Knudsen's request for release is DENIED.
The Clerk is directed to provide a copy of this Order to the Sixteenth Judicial District, Honorable George "Jerry" Huss, presiding, to counsel of ...