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Garrett v. Fletcher

Supreme Court of Montana

October 17, 2017

GURNEY LEE GARRETT, Petitioner,
v.
WARDEN MICHAEL FLETCHER, MONTANA STATE, BOARD OF PARDONS AND PAROLE, MONTANA DEPARTMENT OF CORRECTIONS, Respondents.

          ORDER

         Through a petition for a writ of habeas corpus, Gurney Lee Garrett claims that his incarceration is illegal because of a May 2016 parole rescission due to his failure to complete WATCh[1] and his alleged recent misconduct. The Department of Corrections (DOC) has filed a response in compliance with our August 17, 2017 Order.

         Garrett was sentenced for a Broadwater County felony DUI conviction on February 8, 2002. The First Judicial District Court sentenced him to nine months to the DOC followed by four years, all suspended (Cause No. DC-01-02). Garrett was placed at WATCh, which he completed on July 25, 2002. Garrett went to Helena for probation supervision.

         On December 8, 2004, the First Judicial District Court, Lewis and Clark County, sentenced Garrett to thirteen months to the DOC followed by a five-year suspended sentence to the Montana State Prison (MSP) for a new felony DUI offense (Cause No. ADC-04-176). On December 17, 2004, the Broadwater County District Court revoked Garrett's original sentence and imposed a concurrent, five-year sentence, all suspended. The Broadwater County District Court, after receiving a motion to amend the judgment, issued an amended judgment and order imposing a five-year consecutive, suspended sentence on January 27, 2005. On February 16, 2005, Garrett was screened and denied placement at WATCh. He completed the custodial portion of his sentence, and was released to serve his suspended sentence on October 16, 2005.

         Over the next decade, Garrett committed new offenses and probation violations. Garrett absconded from supervision in December 2005. He was located in April 2006, after having committed another felony DUI offense in Minnesota. He served his time and returned to Montana. On November 4, 2009, the Lewis and Clark County District Court revoked Garrett's suspended sentence, and sentenced him to the DOC for five years, all suspended. On June 21, 2012, the State filed another petition to revoke. Garrett did not appear because he had absconded again. He was apprehended on August 4, 2015. The Lewis and Clark County District Court revoked his suspended sentence a third time and sentenced him on September 2, 2015, to MSP for five years. Garrett is currently serving this sentence.

         Garrett had a parole hearing on May 26, 2016. The Board of Pardons and Parole (Board) granted his parole on two conditions for completion of the WATCh II Program[2] and the Castle Program.[3] Garrett declined to participate in the WATCh II Program as stated in the May 31, 2016 letter to the Board. In a responding letter, the Board advised Garrett that WATCh II was his only early release option. The Board pointed out that if he failed to complete this Program, then the Board would schedule a rescission hearing in May 2017. Admin. R. M. 20.25.601 (2016). Not only did Garrett fail to complete this Program as part of his parole conditions, he also was found guilty of misconduct in prison. The Board rescinded his parole on May 24, 2017. Garrett is incarcerated in MSP.

         Garrett claims that his incarceration is illegal. Section 46-22-101(1), MCA. He contends that he has completed the prison's intensive chemical dependency treatment program (CD-ITU), and that the requirement to complete WATCh II violates double jeopardy. He requests that this Court enjoin the Board and "grant[] a new hearing to present his case[.]"

          The DOC responds that this Court should deny and dismiss Garrett's petition for habeas corpus relief. The DOC contends that Garrett has not met his burden for relief under Miller v. Eleventh JudicialDist. Ct., 2007 MT 58, ¶ 14, 336 Mont. 207, 154 P.3d 1186, and that he has not demonstrated an illegal incarceration. Keating v. Sherlock, 278 Mont. 218, 225, 924 P.2d 1297, 1301(1996).

         The DOC correctly points out that Garrett's parole lawfully may be contingent upon conditions. McDermott v. McDonald, 2001 MT 89, ¶¶ 19-20, 305 Mont. 166, 24 P.3d 200. While Garrett may have completed the WATCh Program successfully on July 25, 2002, he has incurred new charges and several sentence revocations. The DOC points to the nexus between Garrett's repeat DUI offenses and the Board's parole condition for completion of the WATCh II Program. Adult Community Corrections Division, Standard Operating Procedures, ACCD 5.4.304 III. (2014). Requiring the completion of WATCh II before granting parole does not implicate double jeopardy because the Board is not punishing Garrett with this condition for early release from prison. Garrett, as the DOC explains, is serving only the sentence imposed by the Lewis and Clark County District Court in September 2015; any parole on that sentence is a privilege, not a right, and conditions on that parole decision are not additional punishment.

         We agree with the DOC that Garrett cannot demonstrate an illegal sentence, as required by § 46-22-101 (1), MCA. The Board directed him to complete the WATCh II and Castle Programs in May 2016 to receive parole, and Garrett has refused to do so. He is not entitled to habeas corpus relief.

         IT IS THEREFORE ORDERED that the petition for a writ of habeas corpus is DENIED and DISMISSED.

         The Clerk is directed to provide a copy of this Order to counsel of record, and to Gurney Lee Garrett personally.

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Notes:

[1] Warm Springs Addictions Treatment and ...


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