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Sellner v. Salmonsen

Supreme Court of Montana

October 2, 2018

GORDON SELLNER, Petitioner,
v.
JIM SALMONSEN, Warden; MONTANA BOARD OF PARDONS AND PAROLE; and THE STATE OF MONTANA, Respondents.

          ORDER

          In a petition for a writ of habeas corpus, Gordon Sellner claims that his confinement is illegal because he has not been granted parole to serve his three-year consecutive federal sentence. Sellner requests that this Court direct the Board of Pardons and Parole (Board) to grant him an appearance before the Board.

         Sellner is serving a life sentence and a consecutive ten-year term in Montana State Prison (MSP) for 1995 Lake County convictions of attempted deliberate homicide and use of a dangerous weapon. The offenses occurred in June 1992. Sellner is eligible for good time under the law in effect at that time. He became eligible for parole on October 15,, 2011, after serving fifteen years. See § 46-23-201(4), MCA (1991) ("A convict serving a life sentence may not be paroled under this section until he has served 30 years, less the good time allowance provided for in 53-30-105."). Sellner also was convicted of a federal offense and has a consecutive federal sentence that will commence upon his parole from MSP.

         Sellner states that the Board has twice denied him parole, in 2011 and in 2016, as demonstrated in his attached Case Dispositions. Sellner contends that the Board is violating Montana's statutes because it "has given excess and inappropriate weight to the 'Law Enforcement Objections' criteria in determining whether to grant or deny parole." He further contends that the Board did not follow various statutory requirements pursuant to §§ 46-23-201, 46-23-208, and 46-23-218, MCA. He states that he did not know he could seek an earlier review, such as annual instead of every five years, and that no documents given to him provided this information.

         The parole statutes applicable to Sellner's claims are the 1991 version of Montana Code Annotated. See Sage v. Gamble, 279 Mont. 459, 464, 929 P.2d 822, 824 (1996) (1981 version of § 46-23-201, MCA, applies to Sage's 1982 conviction and sentence), and McDermott v. McDonald, 2001 MT 89, ¶ 8, 305 Mont. 166, 24 P.3d 200 (McDermott committed his offenses in 1985 and 1986, and the 1985 parole statutes apply). We have stated before that "[p]arole ... is a discretionary grant of freedom from incarceration." McDermott, ¶ 24. Even though many of these statutes have changed since 1991, their application yields the same result. Sellner has no statutory entitlement to parole to the federal detainer. And this Court has no authority to order an appearance for Sellner again before the Board.

         The starting place, as Sellner references, is § 46-23-201, MCA, which concerns prisoners eligible for nonmedical parole. Section 46-23-201(5), MCA (1991), reads that:

A parole may be ordered under this section only for the best interests of society and not as an award of clemency or a reduction of sentence or pardon. A prisoner may be placed on parole only when the board believes that he is able and willing to fulfill the obligations of a law-abiding citizen. -

         Section 46-23-202, MCA (1991), provides that the Board may investigate the inmate prior to his parole hearing. This section specifically states:

(1) Within the 2 months prior to his official parole eligibility date, the board shall consider all pertinent information regarding each prisoner, including the circumstances of his offense, his previous social history and criminal record, his conduct, employment, and attitude in prison, and the reports of any physical and mental examinations which have been made.
(2) Before ordering the parole of any prisoner the board shall interview him.

          Sellner cites 46-23-208, MCA (2017), which did not exist in 1991. Section 46-23-218, MCA (1991), governs the Board's authority to adopt rules. "The board may adopt any other rules it considers proper or necessary with respect to the eligibility of prisoners for parole, the conduct of parole hearings, and conditions to be imposed upon parolees." Section 46-23-218, MCA (1991).

         The two attached Case Dispositions show that in both its 2011 and 2016 denials the Board based its conclusions on the nature and severity of offenses, multiple offenses, and strong objection from criminal justice authorities and/or citizenry. Each time, the Board noted that if Sellner were to be released, it would affect the community because of "the severity of the offense . . . ." The Board's reasons in these dispositions reflect relevant statutory language. See, e.g., "the circumstances of his offense," under §46-23-201(1), MCA (1991), and "only for the best interests of society" pursuant to § 46-23-20 l(5)(b), MCA (1991). The Board may consider these aspects along with "his previous social history and criminal record, his conduct, employment, and attitude in prison, and the reports of any physical and mental examinations ..." under § 46-23-202(1), MCA (1991). The Board both times commended Sellner on his positive institutional conduct. The statute prescribes the standards for release on parole, but "the Board retains extremely broad discretion to determine when the statutory criteria for early release have been met." McDermott, ¶ 25.[1]

         The pertinent Administrative Rules of Montana reiterate the Board's discretion and set forth a process concerning a request for earlier review. Admin. R. M. 20.25.402(6) (2012) provides in part:

(6) Whenever the scheduled administrative review is over one year away, the offender may submit to board staff a request for early administrative review if the offender can show new information or a change in ...

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