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 and his alleged recent misconduct. The
Department of Corrections (DOC) has filed a response in
compliance with our August 17, 2017 Order.
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.
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.
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.
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 and the Castle
Program. 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.
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
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).
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
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.
THEREFORE ORDERED that the petition for a writ of habeas
corpus is DENIED and DISMISSED.
Clerk is directed to provide a copy of this Order to counsel
of record, and to Gurney Lee Garrett personally.
 Warm Springs Addictions Treatment and