January 28, 2014
CARL E. FRODSHAM, Petitioner,
LEROY KIRKEGARD, Respondent.
Appearing pro se, Carl E. Frodsham seeks habeas corpus relief from the decision of the Montana Board of Pardons and Parole. At our directive, the State has filed a response. We have considered both the petition and response, together with the Board's March 30, 2011 Case Disposition form.
Frodsham was convicted upon a jury verdict in 1973 of assault in the first degree and infamous crimes against humanity in the Gallatin County District Court, for which Judge W. W. Lessley sentenced him to twenty years in prison for the felony assault and eighty years for infamous crimes against nature, to be served concurrently. Frodsham applied for sentence review where, in 1976, the Sentence Review Division increased his sentences by ordering them to run consecutively.
In the 2011 Case Disposition form, the following boxes are checked indicating the Board's reasons for denying Frodsham's parole request: "Nature or severity of offense(s);" "Previous criminal history;" "Pattern of similar offenses;" and "Poor history in community placement and/or under supervision." The Case Disposition provides no explanation for the Board's decision, except the following statement: "The only form of release the Board is willing to consider is through pre-release. The Board does not anticipate any pre-release acceptance, however, continues to support placement." The form indicates a progress review date of March 2016, but no reappearance date.
The available electronic records indicate that Frodsham was born in 1929, making him at least 84 years of age, that he has a "missing right leg, " and that he is incarcerated in the "Lewistown Infirmary."
The offenses having been committed in 1973, Frodsham has a liberty interest in parole. McDermott v. McDonald, 2001 MT 89, ¶17, 305 Mont. 166, 24 P.3d 200. As we noted in denying Frodsham's previous habeas petition, "due process is satisfied when the prisoner seeking parole is, at a minimum, provided with an opportunity to be heard and a written statement explaining why he was denied parole." Frodsham v. Kirkegard, S.Ct. No. OP 12-0362 293 P.3d 182 (Or. Aug. 14, 2012) (quoting McDermott, ¶ 11). We denied Frodsham's petition in that case, rejecting his claim that the Board denied him parole because he failed a polygraph test. We note that Frodsham's current petition is premised on the same March 30, 2011, Case Disposition, but raises different grounds. In the present petition, Frodsham argues that the Board conditioned his parole on Frodsham's placement in a pre-release program when the Board knows he could not be accepted. Frodsham also argues that the Board unlawfully denied him a yearly review of parole despite its knowledge that his sentencing date entitles him to a protected liberty interest.
The Case Disposition does not explain why pre-release is not an option for Frodsham, though we surmise that Frodsham would be unable to meet any work requirements. The Case Disposition also does not address Frodsham's age, current placement or medical condition. Neither the petition nor the response mentions whether medical parole was sought or considered as a potential option if Frodsham is not eligible for pre-release. Section 46-23-110, MCA.
IT IS THEREFORE ORDERED that the DOC shall file a supplemental response within thirty days of the date of this Order that specifically addresses (1) why a prerelease placement is not an option and whether that affects its validity as a condition for parole; (2) Frodsham's age, infirmities and medical condition; and (3) an explanation of the Board's decision, including whether or not medical parole was requested or considered and whether Frodsham meets the criteria of § 46-23-210, MCA.
The Clerk is directed to provide copies of this order to all counsel of record and to Carl E. Frodsham.