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Reese v. Kirkegard

Supreme Court of Montana

November 19, 2013

KENNETH CARSAE REESE, Petitioner,
v.
LEROY KIRKEGARD, Warden of Montana State Prison, and DAN OTALLON, Ward of the Great Falls Regional Prison, Respondents.

ORDER

Kenneth Carsae Reese has petitioned for a writ of habeas corpus on grounds that he is being held illegally at the Great Falls Regional Prison under a February 1, 2013 revocation of a 2006 Missoula County suspended sentence. Reese maintains the revocation of that suspended sentence was illegal because the petition to revoke was filed after he had finished serving the suspended sentence. The Department of Corrections (DOC) has filed a response.

Resolution of this matter hinges on the order in which Reese serves and has served consecutive sentences imposed on him in June of 2006 in Lewis & Clark and Missoula Counties. The June 15, 2006 Missoula County judgment imposed a 13-month custodial sentence followed by a 5-year suspended sentence. The June 26, 2006 Lewis & Clark County judgment (on revocation of a prior suspended sentence) imposed a 5-year custodial sentence. Because the 2006 Lewis & Clark County judgment did not state that the sentence was suspended, the DOC ran that sentence before it ran the suspended portion of the Missoula County sentence. The suspended portion of the Missoula County sentence was later revoked in 2013, and DOC calculates Reese now is serving his sentence on that revocation.

Reese's Petition for Writ of Habeas Corpus depends upon a 2011 Lewis & Clark County nunc pro tunc order in which that court corrected Reese's 2006 sentence to provide that it was suspended. Based on that 2011 order, Reese argues the DOC should have credited him with serving his entire Missoula County sentence before he began to serve the Lewis & Clark County sentence. As a result, he contends, he had already completed serving his Missoula County sentence when the petition to revoke it was filed in December of 2012. Reese points out that, under the controlling statute, § 46-18-203(2), MCA (2005), a petition to revoke must be filed with the sentencing court during the period of the suspended sentence.

Reese does not contend the 2006 sentence imposed upon him in Lewis & Clark County was illegal. The acknowledged legality of the underlying sentence distinguishes this situation from those in Borgen v. Sorrell, 2009 MT 143, 350 Mont. 339, 217 P.3d 1022, and Vance v. Acton, 2001 MT 243, 307 Mont. 71, 36 P.3d 881, upon which Reese erroneously relies. DOC relied upon the facially valid judgments in determining the order in which Reese's sentences would run—with the custodial portions of the sentences before the suspended portions. Therefore, we conclude Reese is not being illegally imprisoned or restrained so as to justify a writ of habeas corpus. Therefore,

IT IS ORDERED that the Petition for Writ of Habeas Corpus is DENIED.

The Clerk is directed to provide copies of this Order to all counsel of record.


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