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Gee v. State

Supreme Court of Montana

July 25, 2017

JAMES L. GEE, Petitioner,
v.
STATE OF MONTANA, and MICHAEL FLETCHER, Warden, Respondents.

          ORDER

         Representing himself, James L. Gee petitions this Court for habeas corpus relief, in which he challenges his parole eligibility restriction and his sentence as facially invalid. Gee attaches to his petition a copy of a Judgment and Order of Commitment along with an Order denying his recent request for clarification.

         On April 21, 2005, Gee pled guilty to the charge of felony sexual assault, pursuant to § 45-5-507, MCA (2003), in the Second Judicial District Court, Silver Bow County. On December 22, 2005, the District Court sentenced Gee to the Montana State Prison for a forty-year term, with twenty years suspended. Along with the conditions of probation, the court also imposed a parole eligibility restriction: "The Defendant shall become eligible for parole upon completion of Phase I and Phase II of Sexual Offender Treatment at Montana State Prison." Judgment and Order of Commitment, pp. 2-3 (Second Judicial Dist. Ct., Mont., Dec. 28, 2005). Gee did not appeal.

         Gee now argues that his sentence is facially invalid for two reasons. He challenges the conditions concerning early release or parole which the court placed on his sentence. He contends that the court was without statutory authority to do so. Gee next raises that the sentence imposed at oral pronouncement is different than the written judgment. He explains that the court committed him to the Department of Corrections for a forty-year term with twenty years suspended, and the written judgment reflects a prison sentence, as stated above. He also argues that pursuant to § 46-18-203(3)(d)(i), MCA, all but the first five years of his sentence should be suspended.

         Gee brings his challenges to this Court twelve years too late. By never appealing his conviction and sentence, Gee exhausted his remedy of appeal. Section 46-22-101, MCA. Gee is now procedurally barred from prosecuting a petition for habeas corpus because these issues were, or could have been, raised in his appeal. See Rudolph v. Day, 273 Mont. 309, 311, 902 P.2d 1007, 1008 (1995). Moreover, his claims are without merit in any event.

         Gee cannot demonstrate that he has an illegal sentence. A district court's authority to impose probationary and parole conditions is prescribed by statutes. Sections 46-18- 201 and 46-18-202, MCA; see also State v. Burch, 2008 MT 118, ¶ 36, 342 Mont. 499, 182 P.3d 66; State v. Heafner, 2010 MT 87, ¶ 6, 356 Mont. 128, 231 P.3d 1087; and State v. Ring, 2014MT49, ¶34, 374 Mont. 109, 321 P.3d 800. At the time of Gee's sentencing, the statute for additional restrictions on a sentence stated:

An offender convicted of a sexual offense, as defined in 46-23-502, except an offense under 45-5-301 through 45-5-303, and sentenced to imprisonment in a state prison shall enroll in and complete the educational phase of the prison's sexual offender program.

Section 46-18-202(3), MCA (2003). This statute also addresses parole ineligibility restrictions:

Whenever the sentencing judge imposes a sentence of imprisonment in a state prison for a term exceeding 1 year, the sentencing judge may also impose the restriction that the offender is ineligible for parole and participation in the supervised release program while serving that term. If the restriction is to be imposed, the sentencing judge shall state the reasons for it in writing. If the sentencing judge finds that the restriction is necessary for the protection of society, the judge shall impose the restriction as part of the sentence and the judgment must contain a statement of the reasons for the restriction.

Section 46-18-202(2), MCA (2003). In his Order, Judge Whelan specifically pointed out: "The Defendant should also be prevented from returning to our community until he has completed successfully the Sexual Offender Treatment Programs at Montana State Prison." Judgment and Order of Commitment, p. 7 (Second Judicial Dist. Ct, Mont., Dec. 28, 2005).

         This Court has found broad statutory authority for these type of restrictions in other cases by relying upon the language in § 46-18-202, MCA.

In State v. Kirkbride, 2008 MT 178, ¶ 18, 343 Mont. 409, 185 P.3d 340, we held that § 46-18-202(2), MCA, not only allows the sentencing court to restrict parole for the entire term of a sentence but also allows a district court to restrict parole for a portion of the sentence imposed. Kirkbride, ¶ 18. The restriction imposed upon Bullman's eligibility for parole is likewise for a portion of the sentence imposed. We conclude the condition that Bullman not be eligible for parole until completing phases I and II of the sex offender treatment program is within the authority granted to a sentencing judge by § 46-18-202(2), MCA, and does not render the sentence illegal. Cf. State v. Larson, 266 Mont. 28, 31, 33, 878 P.2d 886, 888-89 (1994).

State v. Bullman, 2009 MT 37, ¶ 34, 349 Mont. 228, 203 P.3d 768.

         For Gee's remaining arguments, he is either time-barred from raising them in this petition or the issues are not appropriate for habeas corpus relief. Pursuant to 46-18-116(2), MCA (2003), he had a window of 120 days to point out any discrepancies between the oral pronouncement and written judgment. Also, under § 46-18-201(3)(c), MCA (2003), the Department of Corrections oversees the prison. Lastly, concerning the suspension of all but five years, Gee cites to the wrong statute, § 46-18-203(3)(d)(i), MCA, which would concern revocation of a suspended or deferred sentence. He meant § 46-18-201 (3)(d)(i), MCA (2003). This statutory section does not apply to him because he was not referred to an appropriate correctional facility or program. Gee was sent to prison, which is under the Department of Corrections. Therefore, IT IS ORDERED that the petition for a writ of habeas corpus is DENIED.

         The Clerk is directed to provide a copy of this Order to counsel of ...


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