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Ament v. Green

Supreme Court of Montana

October 31, 2017

CHARLES DAVID AMENT, Petitioner,
v.
WARDEN TOM GREEN, Respondent.

          ORDER

         Representing himself, Charles David Ament has filed a Petition for a Writ of Habeas Corpus, claiming that both his sentences are illegal because he "is serving more time on [his] sentence than was given by the courts as punishment." Ament seeks dismissal of both sentences and his immediate release from prison.

         Ament has three concurrent, seven-year commitments to the Department of Corrections (DOC) in two separate proceedings from the Fourth Judicial District Court, Missoula County. In March 2016, the District Court revoked his original 2010 sentence of twelve years, with seven years suspended, to the DOC for the conviction for felony criminal possession of dangerous drugs in which the court had designated him a persistent felony offender. Ament, as mentioned, received a seven-year term (2016 sentence upon revocation). In May 2016, the court imposed two, seven-year sentences to the DOC, all suspended, for his convictions of felony escape and felony assault of a peace officer (2016 sentence), Through counsel from the Office of Appellate Defender, Ament appealed his 2016 sentence upon revocation and his 2016 sentence. This Court dismissed both appeals based upon his voluntary motions to dismiss. State v. C. Ament, No. DA 16-0317, Or. (Mont. Jan. 11, 2017) and State v. C. Ament, No. DA 16-0490, Or, (Mont. Sept. 29, 2017).

         In his petition, Ament contends that he is "in double jeopardy." He indicates that his sentences are longer than the law allows and that he was not afforded any credit while on probation. Citing to Montana statutes, he states that both his 2016 sentence upon revocation and his 2016 sentence are illegal. Sections 46-18-203(7)(a)(iii), -201, MCA. He posits that "[the code] does not say that suspended sentences are active probation." He next argues that he is suffering from cruel and unusual punishment under the United States Constitution's Eighth Amendment because "the duration of the suspension is not defined."

         While Ament correctly recites various statutory language, he does not expound upon why these sentences are illegal under the law. His sentences have not placed him in double jeopardy. His 2016 sentence is within the District Court's statutory authority. Section 46-18-201(3), (4), (8), MCA. His 2016 sentence upon revocation does not exceed the original sentence of a twelve-year DOC commitment with seven years suspended. Offenders are commonly sentenced to an aggregate legal sentence that includes a prison term followed by probation supervision. See § 46-18-201(3)(a)(viii), MCA. The revocation court has only required Ament, who violated the conditions of his probation supervision, to successfully complete a seven-year sentence-as originally imposed. Section 46-18-203(7)(a)(iii), MCA (2009). The 2016 sentence upon revocation is legally permissible.

         Turning to his claim for credit of probationary time, a District Court does not have to credit an offender with any time on probation. It is within the court's discretion to credit Ament with probationary time, also known as street time. Section 46-18-203(7)(b), MCA; McDermott v. Dep't of Corr., 2001 MT 134, ¶ 45, 305 Mont. 462, 29 P.3d 992. The District Court rejected any credit for the time that Ament served on probation when it found that Ament was being sentenced on March 22, 2016, "for violation of the conditions of the last Judgment . . . ." The court expressly stated "[t]he reasons for this Judgment are as follows":

1. The Court considered the Defendant's criminal history and his dangerousness to the community.
2. The sentence gives the Defendant his need for treatment before he can be released back into the community.

         Judgment, p. 2 (Mont. Fourth Judicial Dist. Ct. Apr. 1, 2016). Ament was properly denied this credit. McDermott, ¶ 45.

         Ament's argument concerning the meaning and duration of probation lacks merit. A Montana statute defines probation as "the release by the court without imprisonment... of a defendant found guilty of a crime upon a verdict or plea, subject to conditions imposed by the court and subject to the supervision of the [DOC] upon direction of the court." Section 46-23-1001(4), MCA. His judgments specifically refer Ament to the custody of the DOC and list the probation conditions. Sections 46-23-1001(4), 46-18-201(8), MCA. Ament was convicted of his crimes upon his guilty pleas, and both sentences specify the duration of his DOC commitment and suspended sentence.

         Ament's constitutional challenge also fails. Under habeas corpus, a petitioner may challenge the legal sufficiency of the cause for incarceration, but relief under the writ is not available to adjudicate whether other constitutional rights, such as cruel and unusual punishment concerning probation, were violated. Gates v. Missoula County Comm'rs, 235 Mont. 261, 262-63, 766 P.2d 884, 884-85 (1988). Habeas corpus offers no remedy under this circumstance.

         Ament has exhausted his remedy of appeal in this Court of record. Consequently, not only does Ament's substantive arguments fail here, but he is procedurally barred from raising these claims under habeas corpus. Section 46-22-101(2), MCA. Having received legal sentences, Ament cannot establish that he is incarcerated illegally as required under habeas corpus. Section 46-22-101(1), MCA. Further, habeas corpus is not available to challenge collaterally the legality of an order revoking a suspended sentence, such as Ament's 2016 sentence upon revocation. Section 46-22-101 (2), MCA. 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 record, and ...


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