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Smith v. McTighe

Supreme Court of Montana

September 25, 2018

BRIAN D. SMITH, Petitioner,
v.
PAT McTIGHE, Warden, Respondent.

          ORDER

         Representing himself, Brian D. Smith has filed a petition for a writ of habeas corpus, arguing that his sentence is "facially invalid and illegal," because it is based on "false information" and lacks specific reasons for a parole restriction.

         In 2012, Smith pleaded guilty to felony aggravated assault in exchange for the prosecution's agreement to dismiss a charge of felony assault with a weapon. On May 9, 2012, the Missoula County District Court sentenced Smith to Montana State Prison for a twenty-year term with no eligibility for parole. Smith filed a motion to withdraw his plea, which the District Court denied on July 25, 2012. Smith did not seek a timely appeal with this Court, and we later denied his petition for an out-of-time appeal in July 2013. State v. Smith, No. DA 13-0399, Order (Mont. Jul. 10, 2013).

         In 2016, Smith sought postconviction relief in the District Court by filing a petition. The court in its denial noted the petition's untimeliness yet addressed the merits. Smith appealed the court's decision, and this Court affirmed in an unpublished opinion. Smith v. State, No. DA 17-0146, 2018 MT 115N, __Mont.__, 416 P.3d 1054 (table).

         Smith raises several issues in his petition. He asserts that the reasons for his parole eligibility restriction are not valid in light of § 46-18-202(2), MCA. He maintains that his sentence violates this statutory section language in that "the judgment must contain a statement of the reasons for the restriction." Section 46-18-202(2), MCA (emphasis added to the original language). Smith contends that the written reasons for the court's judgment are not specific, do not contain factual evidence, and conflict with § 46-18-223(3), MCA.

         Smith also asserts that the procedural bar and res judicata do not apply to this petition. He argues several tangential issues about what the presentence investigation report (PSI) contained, what the presiding Judge stated at sentencing, and that Smith was willing to go to trial on the second charge, which was not encouraged by his counsel. Citing to Montana case law, Smith argues materially false information is the basis of his sentence, which therefore results in an illegal sentence. See Bauer v. State, 1999 MT 185, ¶ 20, 295 Mont. 306, 983 P.2d 955 ("a defendant is protected from a sentence predicated on misinformation about that defendant's criminal history."). Smith requests this Court vacate and remand for resentencing pursuant to Lott v. State, 2006 MT 279, 334 Mont. 270, l5OP.3d337.

         Smith does not have a facially invalid and illegal sentence. While Smith correctly refers to Montana's statutes, and his written judgment, he is mistaken that the court's reasons are inadequate. The court included two reasons for the sentence when it imposed the parole ineligibility restriction:

1. The sentence takes into account the violent nature of the crime and the injuries to the victim and her family.
2. It is too great of a risk to release the Defendant into the community.

         First, the court's reasons do not conflict with § 46-18-223(3), MCA, because that statute does not apply to Smith's sentencing. Section 46-18-223, MCA, deals with a hearing on an application to exceptions for mandatory minimum sentences. Second, Montana's statutes do not require factual findings or any more specificity. Section 46-18-202(2), MCA, requires a sentencing judge to include the reasons for the parole restriction in writing.

         The District Court was within its authority and gave written reasons for the sentence imposed. We have held that § 46-18-202(2), MCA, authorizes a sentencing court to impose parole eligibility restrictions when imposing a prison term that exceeds one year. State v. Kirkbride, 2008 MT 178, ¶¶ 16-21, 343 Mont. 409, 185 P.3d 340. We have further held that sentencing courts are afforded broad discretion in sentencing and have "upheld restrictions based at least in part upon the heinous nature of the crime." State v. Christianson, 1999 MT 156, ¶¶ 31, 37, 295 Mont. 100, 983 P.2d 909 referring to State v. Heit, 242 Mont. 488, 791 P.2d 1379 (1990).

         During the sentencing hearing, the District Court stated, as put forth in Smith's copy of the attached transcript:

And, as [the victim's] sister pointed out, you didn't have just one victim. You shattered the whole family - mother, sister, as well as [the victim].
You didn't just hurt her. You tried to kill her, and in the process, you cut her throat, tore an ear off of her head, and then, gave her a couple different skull fractures, along with several lacerations, that required surgery, and much surgical stitches to put her head back together.

Tr. at 35. The District Court detailed the severity of Smith's crime during this hearing and complied with the statutory language by including sufficient reasons for the ...


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