ORDER
Raymond
Eva petitions this Court for habeas corpus relief, indicating
that his sentence violates his right to be free from double
jeopardy and alleging that he is due credit for time while on
probation.
This
Court accessed available electronic records. In May 2004, the
Second Judicial District Court, Butte-Silver Bow County,
sentenced Eva for two counts of felony sexual intercourse
without consent and for two counts of felony sexual assault,
after accepting his guilty pleas. The District Court imposed
a sentence to the Montana State Prison (MSP) of thirty years
with twenty years suspended on each count to run concurrently
(2004 sentence). Eva discharged his prison term and began
serving his suspended sentence on September 13, 2013.
The
State of Montana filed a Petition to Revoke his suspended
sentence on December 15, 2015, At a March 2016 hearing, Eva
admitted to five violations: (1) associating and residing
with another known offender without permission of his
supervising officer; (2) having a Facebook profile and
communicating with a high school student in Missoula,
Montana; (3) having sexual contact with two males whom he
thought were sixteen and seventeen years of age,
respectively; (4) possessing and viewing pornography on his
cell phone and computer and engaging in adult hook up sites,
such as Grinder and Craigslist; and (5) failing to remain in
sexual offender treatment because of his termination from the
program based upon the above violations. On May 19, 2016, the
court found that Eva violated his probationary terms and
conditions and revoked the suspended portion of his 2004
sentence. The court sentenced Eva to MSP for a twenty-year
term on each offense to run concurrently (2016 sentence upon
revocation).
Eva now
seeks two and a half years' credit for time served while
on probation. In an unclear argument, he posits that because
a suspended sentence is defined as "being not active or
kept from it" then he is entitled to this credit. Citing
to the Double Jeopardy Clause of the Fifth Amendment, Eva
contends that a court may not impose more than one sentence
for the same offense. He includes a copy of a decision from
the United States Court of Appeals for the Ninth Circuit.
Kennick v. Super. Ct. of Cai, 736 F.2d 1277 (9th
Cir. 1984).
Eva's
2016 sentence upon revocation does not violate his right to
be free from double jeopardy. Eva has not received more than
one sentence for the same offense. Pursuant to Montana's
sentencing statutes, after a judge finds that the offender
has violated his probationary conditions, a judge "may
revoke the suspension of a sentence and require the offender
to serve either the sentence imposed or any sentence . . .
that does not include a longer imprisonment or commitment
term than the original sentence[.]" Section
46-18-2O3(7)(a)(iii), MCA (2015). The District Court revoked
Eva's 2004 sentence and imposed a twenty-year sentence,
which is not any longer. The Kennick case does not
support his argument because Eva did not serve all twenty
years of his probationary or suspended time before
revocation.
Eva is
not entitled to his request for credit. Under Montana
statutes, a District Court does not have to credit an
offender with any time on probation, also known as street
time. Pursuant to § 46-18-203(7)(b), MCA (2015), when a
judge revokes a suspended sentence, "the judge shall
consider any elapsed time and either expressly allow all or
part of the time as a credit against the sentence or reject
all or part of the time as a credit." Furthermore,
"[t]he judge shall state the reasons of the judge's
determination in the order." Section 46-18-203(7)(b),
MCA (2015). It is within the court's discretion to credit
Eva any street time. Section 46-18-203(7)(b), MCA;
Gundrum v. Mahoney, 2001 MT 246, ¶ 19, 307
Mont. 96, 36 P.3d 890.
Eva was
serving his probationary time on his 2004 sentence when he
violated. The District Court rejected any credit for this
time and expressly stated in its Judgment and Order of
Commitment:
IT IS THE DECISION OF THIS COURT, that there exists no basis
to provide the Defendant any credit for time served while on
probation. The Defendant, is in the opinion of this Court, a
danger to the community and has been since his release from
prison in September 2013. The court however will grant the
Defendant credit for time served while incarcerated in this
matter of the State's Petition to Revoke in the amount of
170 days.
Eva was properly denied this credit. McDermott v.
Dep't of Corr., 2001 MT 134, ¶ 45, 305 Mont.
462, 29 P.3d 992.
Eva is
procedurally barred via habeas corpus to attack his 2016
sentence upon revocation. Pursuant to Montana's statute,
he cannot challenge a sentence upon revocation under habeas
corpus. Section 46-22-101(2), MCA, Eva's sentence is
valid; he did not receive a second punishment, and he has
received all the credit he was due under the law. Eva has not
demonstrated an illegal sentence or restraint. Section
46-22-101(1), MCA; Miller v. Eleventh Judicial Dist.
O., 2007 MT 58, ¶ 14, 336 Mont. 207, 154 P.3d 1186.
Accordingly, IT IS ORDERED that Eva's Petition for a Writ
of Habeas Corpus is DENIED.
The
Clerk is directed to provide a copy of this Order to counsel
of ...