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Avery v. Batista

Supreme Court of Montana

September 30, 2014

RUSSELL SCOTT AVERY, Petitioner,
v.
MIKE BATISTA, Director of Montana Department of Corrections, ROSS SWANSON, Acting Warden of Montana State Prison, TOM GREEN, Acting Warden of the Dawson County Correctional, and the SENTENCE REVIEW DIVISION Respondent.

OPINION AND ORDER

JIM RICE, J.

¶1 Russell Scott Avery (Avery) petitions this Court for extraordinary relief. Avery challenges the decision of the Sentence Review Division (Division), increasing his sentence in Cause No. DC 11-496.

¶2 Avery raises the following issues:

¶3 1. Did the Division err by denying Avery's request to withdraw his application for sentence review after the hearing had concluded?

¶4 2. Did Avery receive ineffective assistance of counsel before the Division in violation of Article II, Section 24 of the Montana Constitution?

FACTUAL AND PROCEDURAL BACKGROUND

¶5 On May 8, 2012, Avery pled guilty and was convicted of one count of Sexual Intercourse Without Consent in the Fourth Judicial District Court for the County of Missoula. The plea agreement called for the State and Avery to make a joint recommendation for a 30 year sentence to the Montana Department of Corrections, with 25 years suspended.

¶6 At the sentencing hearing, the District Court expressed disagreement with the jointly recommended sentence and explained that it intended to impose a stricter sentence. Defense counsel inquired if the court "might be more comfortable with a 30-year sentence, with 10 of those years suspended." The court stated it would accept that sentence if Avery agreed to it. After defense counsel and Avery conferred, Avery indicated he would accept the suggested sentence. The court, despite indicating it intended to impose the suggested sentence, actually imposed a lesser sentence. The court orally pronounced a sentence of 30 years in the Montana State Prison, with 20 years suspended. The written judgment imposed the same sentence.

¶7 Avery thereafter submitted an application to the Division for sentence review. The written application materials explained the possible consequences of proceeding with sentence review, including an express warning that his sentence could be increased by the Division.

¶8 On August 1, 2013, the Division met to conduct a hearing on Avery's application. Avery appeared and was represented by counsel. Prior to the commencement of the hearing, the Division warned Avery of the possible consequences, including the possibility that his sentence could be increased. Avery indicated his desire to proceed with the hearing.

¶9 During the hearing, Avery's counsel advocated for a more onerous sentence than the District Court had imposed. Counsel urged the Division to impose a sentence of 30 years, with just 10 years suspended. After the hearing had concluded[1], Avery's counsel requested that the Division reconvene, which it did. At that point, counsel asked that Avery be permitted to withdraw his application, leaving his original sentence of 30 years, with 20 years suspended, "as is." After consideration, the Division declined Avery's request to withdraw his application. The Division ultimately entered an order increasing Avery's sentence to 30 years in the Montana State Prison, with 10 years suspended.

¶10 On October 30, 2013, the District Court resentenced Avery and amended the previous judgment. In accordance with the Division's decision, the District Court resentenced Avery to 30 years in the Montana State Prison, with 10 years suspended.

ΒΆ11 On January 6, 2014, Avery, self-represented, filed a petition for habeas corpus with this Court seeking relief from the Division's decision. We issued an order deeming Avery's petition to be one for extraordinary relief. We ordered that counsel be appointed for Avery through the Office of Appellate Defender, that an amended petition and supporting memorandum be filed, followed by the filing of responses by the respondents. Colin M. Stephens was appointed to ...


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