October 28, 2014
MICHAEL J. WESTMARK, Petitioner,
LEROY KIRKEGARD, WARDEN, DIR. BATISTA, STATE OF MONTANA, et al„ Respondents.
Self-represented Petitioner Michael J. Westmark has filed a petition for a writ of habeas corpus, seeking relief from his alleged unconstitutional sentence. In compliance with our Order, the Department of Corrections (Department or DOC) has filed a response along with supplemental documentary exhibits.
Westmark is serving two consecutive sentences. Following a plea of guilty in 2006, Westmark received a fifteen year sentence with ten years suspended for felony robbery in the Fourth Judicial District, Missoula County. After a 2012 charge of felony driving under the influence of alcohol or drugs (DUI) in Lake County, he was found to have violated his terms of probation in Missoula County. The Missoula County District Court revoked his sentence and committed Westmark to a ten year term at Montana State Prison (MSP). Westmark then pleaded guilty to the felony DUI charge in Lake County, and the Twentieth Judicial District Court imposed a thirteen month commitment to the DOC to complete a residential alcohol treatment program, followed by a consecutive suspended sentence of five years. The DUI sentence from Lake County was to run consecutive to the sentence from Missoula County.
In his petition, Westmark alleges that the Respondents have violated his constitutional rights by not releasing him and that he is forced to serve an unconstitutional sentence. Attached to his petition are: (1) the September 2012 Staff response to Inmate request; (2) MSP's sentence calculation and good time calculation form; (3) the June 2012 Missoula County District Court Judgment; and (4) the August 2012 Lake County District Court Judgment. Westmark argues that he should be serving the ten year sentence first and then serve the thirteen month DUI sentence from Lake County. He contends that "the records office at M.S.P. took it upon their self to administer the 13 month sentence (D.U.I.) to start in front of the Missoula sentence, ignoring the court order for the sentence to run consecutive." Westmark also alleges that he loses his credit for time served under this arrangement.
The Department responds that Westmark is incarcerated lawfully and that the DOC has calculated his parole eligibility date correctly. The Department contends that "Westmark's arguments ignore the fact that he is not parole eligible on the custodial 13 month felony DUI sentence." Department of Corrections' Response to Petition for Habeas Corpus (Response), p. 4 (referring to § 61-8-73l(l)(a), MCA (2011)). The Department explains that since both sentences were to run consecutively, Westmark must serve at least one-fourth of the ten year term on the Missoula County robbery sentence in addition to the thirteen month DUI term from Lake County before becoming parole eligible. Section 46-23-201(3), MCA (a prisoner must serve at least one-fourth of his full term before parole consideration). Therefore, the State provides that without accounting for credit for time served, Westmark must serve at least thirty months on the robbery sentence plus the thirteen months before being parole eligible.
The Department further submits that Westmark's parole eligibility date is not dependent upon which sentence runs first. "This is because, even if the robbery sentence were to run first, Westmark would remain parole ineligible by virtue of not having yet served the 13 month felony DUI sentence." Response, p. 6. The Department adds that Westmark receives a benefit by serving the DUI sentence first because he discharges this "parole ineligible sentence that would otherwise hinder his ability to seek parole on the robbery sentence." The Department states that the DOC has credited Westmark with his jail time served for both sentences, and that the DOC has calculated Westmark's parole eligibility date as June 25, 2015. The Department thus concludes that Westmarkhas not met his burden for habeas relief and that his petition should be denied.
We agree. Westmark has not demonstrated a prima facie case for habeas corpus relief. The DOC calculated his parole eligibility date for his second sentence based upon Westmark completing the thirteen month DUI sentence first. State v. Kampf, 2008 MT 198, ¶25, 344 Mont. 69, 186 P.3d 223 (citing § 61-8-73 1(1)(a), MCA). Consequently, Westmark is not serving an unconstitutional sentence and is not incarcerated illegally. Accordingly,
IT IS ORDERED that the petition for writ of habeas corpus is DENIED.
The Clerk is directed to provide copies of this Order to counsel of record and to Kenneth Edward Westmark.