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Herreid v. Salmonsen

Supreme Court of Montana

September 11, 2018

GARETT WAYNE HERREID, Petitioner,
v.
JIM SALMONSEN, Acting Warden, Montana State Prison, Respondent.

          ORDER

         Garett Wayne Herreid petitions this Court for habeas corpus relief, raising six claims concerning his 2017 convictions and sentence. In compliance with this Court's July 17, 2018 Order, the Attorney General for the State of Montana has filed a response requesting that his petition be denied for Herreid's five issues and granted for the issue of credit for time served.

         On January 3, 2017, the Twentieth Judicial District Court, Sanders County, sentenced Herreid to the Department of Corrections (DOC) for a ten-year term with five years suspended for sexual intercourse without consent and imposed a consecutive ten-year sentence for the second count of sexual intercourse without consent (emphasis added). These sentences were to run consecutively to Herreid's prior five-year sentence for his criminal conviction of drug possession (hereinafter other sentence), which is not at issue here. The court dismissed his other three felony charges. Herreid did not appeal to this Court or file a petition for postconviction relief in the District Court.

         Herreid raises the following issues, as re-phrased in the State's response:

1. Did the State violate Herreid's right to a hearing to determine whether this case should be transferred back to youth court?
2. Did Herreid's counsel provide ineffective assistance of counsel (IAQ when counsel failed to file a motion to disqualify the presiding judge for cause?
3. Did the District Court err in not affording Herreid an opportunity to withdraw his guilty pleas due to IAC?
4. Did the Court err when it failed to sentence Herreid under the law in effect at the time of sentencing in youth court and not adult court?
5. Did the court err when it sentenced Herreid to a ten-year DOC commitment contrary to the statute and thereby making the sentence illegal?
6. Should Herreid receive credit for time served at the Montana State Prison if this Court were to decide that Herreid should have been tried in youth court?

         Herreid asserts that this Court has jurisdiction to hear his claims "as to the legality of incarceration." Keating v. Sherlock, 278 Mont. 218, 225, 924 P.2d 1297, 1301 (1996); § 46-22-202, MCA. He contends that he should have been able to withdraw his plea of guilty "once the District Court Judge 'did not' accept the original plea agreement." He argues that he did not know what he was signing, especially the waiver of transfer hearing. Herreid states that the presiding judge should have recused herself because she knew members of his family. He further contends that he did not want to enter a plea and that his counsel never explained the difference between concurrent and consecutive sentences. Herreid requests that this Court remand his case to the District Court because he argues that he should be resentenced "under the law in effect at the time of the offense under the Youth Court Act." He alternatively offers that he be allowed to withdraw his guilty plea.

         The State provides more of the procedural and factual background to Herreid's underlying matter and includes many attachments, including the plea agreement, the presentence investigation report (PSI), and the entire sentencing hearing's transcript. The State points out that while Herreid was 16 or 17 years old at the time of the offenses, he was 19 years old when the original five charges were filed. On October 4, 2016, the State explains that the State and Herreid agreed to recommend a ten-year DOC commitment with five years suspended for the first count of sexual intercourse without consent and a concurrent ten-year DOC commitment with five years suspended on the second count of sexual intercourse without consent (emphasis added). The State points out that this plea agreement was patterned under § 46-12-21 l(1)(b), MCA, wherein "the prosecutor will.. . agree that a specific sentence is the appropriate disposition of the case[.]" The State notes that Herreid's Acknowledgment of Rights accompanied this agreement. As such, the State contends that Herreid understood in 2016 that he was waiving various rights by pleading guilty. The State points to specific language, such as these terms:

13.1 have considered the most severe sentence that could be imposed.
14. I understand that the sentence to be imposed is within the sole discretion of the sentencing judge.

         During the change of plea hearing in October 2016, the State puts forth that Herreid appeared with counsel and pleaded guilty to the two counts. The District Court ...


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