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Combs v. Kirkegard

Supreme Court of Montana

October 30, 2013

ALAN FRANK COMBS, Petitioner,
v.
WARDEN LEROY KIRKEGARD, Respondent.

ORDER

Petitioner Alan Frank Combs (Combs) seeks a writ of habeas corpus on the grounds that he has been subjected to double jeopardy. In 2004, Combs was charged with three felonies for attacking his wife with a razor blade. In June 2005, Combs pled no contest to aggravated burglary and assault with a weapon, in exchange for which the State agreed to dismiss a charge of attempted deliberate homicide.

Two months later, Combs moved the District Court to withdraw his pleas on the grounds that he had discovered new and exculpatory evidence. The District Court denied the motion and sentenced him to prison for 30 years for the aggravated burglary and 20 years for assault with a weapon, to be served consecutively. Combs appealed to this Court, and we affirmed the District Court. State v. Combs, 2007 MT 6N.

In March 2007, Combs filed another motion to withdraw his pleas and a "motion to dismiss the judge." After those motions were denied, Combs appealed and we again affirmed the District Court. State v. Combs, 2008 MT 163N.

Combs now alleges that he was improperly charged with the same offense in several counts of the Information, He claims that aggravated assault constitutes a lesser included offense of aggravated burglary and, having received separate convictions and sentences, he has suffered multiple punishments for a single prosecution. For purposes of analyzing his double jeopardy claim, Combs maintains that the lesser offense is considered the same offense as the greater. In support of his petition, he cites Lott v. State, 2006 MT 279, 334 Mont. 270, 150 P.3d 337 and State v. Guillaume, 1999 MT 29, 293 Mont. 224, 975 P.2d 312.

Montana law defines "included offense" as an offense that (a) is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (b) consists of an attempt to commit the offense charged or to commit an offense otherwise included in the offense charged; or (c) differs from the offense charged only in the respect that a less serious injury or risk to the same person, or a lesser kind of culpability suffices to establish its commission. Section 46-1-202(9), MCA. "The 'facts' required under § 46-1-202(9), MCA, subsection (a), to establish the commission of the charged offense refers to statutory elements of offenses rather than to the facts of an individual case." State v. Williams, 2010 MT 58, ¶ 21, 355 Mont. 354, 228 P.3d 1127. Because the offenses of aggravated burglary and assault with a weapon require distinct elements, compare § 45-6-204(2)(a), MCA, with § 45-5-213, MCA, Combs's guilty pleas do not violate double jeopardy. Further, unlike Guillaume, Combs did not receive a sentence enhancement for use of a weapon.

Finally, Combs asserts that he is entitled to withdraw his plea if it is subsequently determined that it is illegal or unauthorized. He also claims that there can be no plea bargain to an illegal sentence and that, "[w]here a sentence is illegal and therefore, invalidly imposed, the voluntariness of the plea is drawn into question."

As the above procedural history indicates, Combs sought unsuccessfully to withdraw his pleas of nolo contendere on several occasions. Combs's sentence is not illegal and the voluntariness of the plea is not thereby drawn into question. Moreover, his previous appeals seeking to withdraw his pleas preclude reconsideration of his request. "Under the doctrine of law of the case, a prior decision of this Court resolving a particular issue between the same parties in the same case is binding and cannot be relitigated." State v. Gilder, 2001 MT 121, ¶ 9, 305 Mont. 362; 28 P.3d 488, citing State v. Wooster, 2001 MT 4, ¶ 12, 304 Mont. 56, 59, 16 P.3d 409. The doctrines of the law of the case and res judicata preclude further consideration of whether Combs's pleas may be withdrawn. Combs is precluded from relitigating this claim.

Combs's convictions are legal and his sentence is valid.

IT IS THEREFORE 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 Alan Frank Combs.


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