Appearing pro se, Petitioner Lonny Jensen (Jensen) has filed a petition for writ of habeas corpus and moved for appointment of counsel. The Attorney General has filed a response.
Jensen entered a guilty plea, pursuant to a plea agreement, to sexual assault in the Fergus County District Court in 2005. On September 6, 2005, Jensen was sentenced to Montana State Prison (MSP) for 10 years, all suspended. Among conditions of his sentence, the court ordered Jensen to obtain, at his own expense, psycho-sexual and chemical dependency evaluations and to comply with all recommendations. The September 6, 2005, sentence and judgment also specified that Jensen "shall have the right to petition the Court to terminate his term of probation at the end of five (5) years if he has completed all therapy and complied with the terms & conditions of his probation."
The District Court revoked Jensen's suspended portion of the sentence on January 7, 2007, and resentenced him to MSP for 10 years with seven years suspended, with no parole eligibility until he completes phases I and II of sex offender treatments. It appears that Jensen was released on probation upon serving the prison portion of the sentence.
On July 13, 2010, the State filed another petition to revoke. While Jensen initially denied the allegations, on February 15, 2011, he admitted to the violations and the court revoked his sentence and resentenced him to 7 years at MSP. The District Court reiterated that Jensen would be "subject to the other terms, conditions, and restrictions previously imposed" in his 2005 written sentence and judgment.
Jensen now alleges that his original sentence violated § 46-18-111 (2003), MCA (now codified at § 46-18-111(1)(a)). This statute provides that following a guilty plea for felony sexual assault, the presentence investigation "must include a psychosexual evaluation of the defendant and recommendation as to treatment of the defendant in the least restrictive environment, considering the risk the defendant presents to the community and the defendant's needs." Jensen alleges that the original sentence and the ensuing revocations were illegal due to the fact that the District Court merely listed the psychosexual evaluation as a condition of his sentence, and the evaluation was not completed before sentencing.
Jensen further alleges that he entered admissions in the second revocation proceeding only because his counsel threatened him that the public defender's office "did not have time to go to trial, " and that if he did not admit to violating the conditions, the court would sentence him to 100 years. Jensen contends that his counsel instructed him that the court would inquire as to whether he understood the rights that he waived by admitting to the violations and that Jensen should "just tell the court that he understood, " and "make it sound sincere enough that it's from you." Jensen maintains that he had no idea that by admitting the alleged violations as "true, " he was in essence pleading "guilty."
A defendant waives the right to appeal all nonjurisdictional defects "upon voluntarily and knowingly entering a guilty plea, " including claims of constitutional violations that may have occurred before the plea. State v. Pavey, 2010 MT 104, ¶ 11, 356 Mont. 248, 231 P.3d 1104, citing State v. Violette, 2009 MT 19, ^ 16, 349 Mont. 81, 201 P.3d 804. Jensen maintained only the right to attack the voluntary and intelligent character of the plea, any jurisdictional defects, and any pretrial rulings specifically reserved for appeal. Nothing indicates that Jensen, at any time, sought to withdraw his guilty plea or admissions, or that he preserved any issues for appeal.
A facially invalid sentence would represent the only avenue for habeas corpus relief now available to Jensen. A facially invalid sentence is one "which, as a matter of law, the court had no authority to impose." Lott v. State, 2006 MT 279, ¶ 22, 334 Mont. 270, 150P.3d337.
The District Court originally sentenced Jensen to 10 years with all suspended for a felony sexual assault under § 45-5-502(3), MCA. The statue authorized a sentence between four years to life imprisonment. The court also has broad discretion under § 46-18-201, MCA, to impose conditions. Jensen's sentence falls within statutory parameters and does not appear facially invalid. Section 46-22-101(2), MCA.
A court's failure to obtain an evaluation from a qualified professional before imposing sentence, though mandated by statute, does not render a sentence illegal. In re K.M.G., 2010 MT 81, ¶ 39, 356 Mont. 91, 229 P.3d 1227. Jensen raised no objection at sentencing or at any of the revocation proceedings. Jensen raises this claim for the first time in the instant petition—eight years after his sentence was originally imposed. The court's failure to obtain a psychosexual evaluation before sentencing renders Jensen's sentence merely objectionable, as opposed to illegal.
We conclude that the claims raised by Jensen do not entitle him to habeas relief. This conclusion renders moot Jensen's request for appointment of counsel.
IT IS ORDERED that the petition for writ of habeas corpus is DENIED.
The Clerk is directed to provide a copy hereof of this order to all counsel of ...