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Eva v. O'Fallon

Supreme Court of Montana

March 20, 2018

RAYMOND EVA, Petitioner,
v.
DAN O'FALLON, Respondent.

          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 ...


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