JAMES L. GEE, Petitioner,
STATE OF MONTANA, and MICHAEL FLETCHER, Warden, Respondents.
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
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
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.
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.
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
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,
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.
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.
Clerk is directed to provide a copy of this Order to counsel