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Allen v. Salmonsen

Supreme Court of Montana

November 8, 2018

JIM SALMONSEN, Interim Warden, Respondent.


         Representing himself, Rex William Allen, Jr., petitions this Court for habeas corpus relief alleging that "false or erroneous information" was introduced at his March 2018 parole hearing before the Board of Pardons and Parole (Board). He contends that his incarceration is thus illegal because the Board based its denial of his parole on this information and because his parole eligibility date is "at issue." The Department of Corrections (Department or DOC) has filed a response, several attachments, the parole hearing transcript, and three affidavits in compliance with this Court's August 30, 2018 Order.

         Allen is serving a prison sentence pursuant to judgments issued in the Dawson County District Court and the Missoula County District Court. The Dawson County District Court sentenced Allen to the DOC for a five-year term with two years suspended for felony criminal endangerment on August 19, 2013. He discharged the prison term and began serving his suspended term. While serving this probationary term, the State charged him with felony partner or family member assault in Missoula County and the State filed a petition to revoke his suspended sentence in Dawson County. On August 15, 2017, the Dawson County District Court revoked the two-year suspended sentence and sentenced Allen to Montana State Prison (MSP) for two years with no award of street time credit. On September 12, 2017, the Missoula County District Court sentenced Allen to a consecutive three-year term and awarded 231 days of credit for jail time served.

         On March 22, 2018, Allen appeared before the Board at his initial parole hearing. The Board denied parole and directed Allen to obtain anger management, chemical dependency treatment, and Cognitive Based Programming. Allen's next parole hearing was scheduled for March 2019. The hearing was recorded by audio-video means and a transcript was prepared.

         In his petition, Allen requests.another hearing before the Board. Allen contends that the Board based its decision to deny him parole on written statements from the Crime Victim Advocate (CVA) Rebecca Clarebrese. Allen states that he was told by the Board during his hearing that the Board had received a letter from the CVA. The CVA expressed that Allen's parole should be denied because he had consecutive sentences and the CVA did not believe Allen had served enough time or that he should be granted parole.

         Allen claims his due process rights have been violated because he never saw or received the written comments of the CVA, County Attorney, or any other interested person. An interested person, such as a CVA or County Attorney, may make statements to the Board. Admin. R. M. 20.25.401(3) (2016). Allen tried to obtain a copy of the purported letter by making a request through the prison's offender/staff communication policy known as the Offender/Staff Request (OSR) form, or a "kite." The MSP's response was that "there was no letter from Rebecca Clarebrese in file." Allen refers to a panoply of administrative rules, which guide the Board's hearing procedure, decision-making process, reconsideration, and criteria for release.

         The Department responds that Allen's parole eligibility date was properly calculated. The Department explains that Allen is serving two "time sentences," meaning that the MSP Records Department aggregates the sentences for purposes of determining parole eligibility. Admin. R. M. 20.25.305(2) (2016). The Department correctly represents that this Court's precedent establishes the aggregation of consecutive sentences for determining a parole eligibility date do not infringe on an individual's rights. Petition of Cheadle, 143 Mont. 327, 329, 389 P.2d 570, 580 (1964). The Department maintains that in October 2017 Allen was aware of his March 22, 2018 parole hearing and knew his sentences had been aggregated for purposes of determining parole eligibility. The Department asserts that Allen has failed to carry his burden to identify any false or erroneous information, as required by Admin. R. M. 20.25.501(7) (2016). The Department states that an initial hearing is not a contested case or an adversarial proceeding, and that Allen has no liberty interest in parole since he committed his crimes in 2013 and 2017, respectively, well after 1989. Worden v. Board of Pardons and Parole, 1998 MT 168, ¶42, 289 Mont. 459, 962 P.2d 1157. Further, the Department maintains the Board correctly considered the statements, whether oral or written, pursuant to § 46-23-208(4), MCA. The Department contends that Allen received adequate due process because: (1) Allen received notice of the hearing; (2) he appeared before the Board; and (3) he received a written case disposition that set out the reasons for his denial.

         It is clear from a review of these proceedings that, following the hearing, Allen apparently believed there were written statements submitted to the Board. Allen requested these statements and referred to Admin. R. M. 20.25.401(4), which requires: "Criminal justice authorities or any other interested persons may submit written comments about an offender's possible parole to board staff at any time before the hearing." However, the statements referred to and considered by the Board during Allen's initial parole hearing were oral statements, which were not recorded because of audio-visual difficulties. Section 46-23-208(4)(p), MCA (2017), provides:

         In making its determination regarding nonmedical parole release, a hearing panel shall consider all available and pertinent information regarding the prisoner, including the following factors:

written or oral statements from criminal justice authorities or any other interested person or the interested person's legal representative, including written or oral statements from a victim regarding the effects of the crime on the victim. A victim's statement may also include but is not limited to the circumstances surrounding the crime, the manner in which the crime was committed, and the victim's opinion as to whether the offender should be paroled.

         Section 46-23-208(4)(p), MCA.[2] Here, the Board considered oral statements made by interested persons as allowed by § 46-23-208(4)(p), MCA.

         This Court has determined previously that the Board has broad authority and discretion to decide an inmate's parole. McDermott v. McDonald, 2001 MT 89, ¶ 25, 305 Mont. 166, 24 P.3d 200. In McDermott, we stated that "[p]arole ... is a discretionary grant of freedom from incarceration." McDermott, ¶ 24. The standard for release on parole is limited by statute and "the Board retains extremely broad discretion to determine when the statutory criteria . . . have been met." McDermott, ¶ 25. This Court recognizes that due . process is a flexible concept. McDermott, ¶ 25. "As a consequence, the United States Supreme Court has held that due process is satisfied when the prisoner seeking parole is, at a minimum, provided with an opportunity to be heard and a written statement explaining why he was denied parole." McDermott, ¶ 11 (citation omitted). Allen had notice of his parole hearing; he appeared before the Board during the hearing; and he received a written copy of the decision. We conclude that Allen's due process rights were not violated.

         The Board's case disposition has marked as reasons for denial: Strong objection from criminal justice authorities and/or citizenry; and completion of anger management, chemical dependency counseling, and cognitive based program. While the oral statements were part of the Board's consideration, other substantive reasons for denying parole identified by the Board were Allen's need to complete anger management, chemical dependency counseling, and a cognitive based program. It was within the Board's discretion to deny parole for any one of these reasons. Further, Allen has not met his burden of demonstrating any of the statements relied upon the Board were false, as required by Admin. R. M. 20.25.501(7) (2016). While we do not minimize the need to properly record parole, we are satisfied that Allen was not denied due process.

         We conclude that Allen is not incarcerated illegally. Section 46-22-101(1), MCA. Allen had notice of his initial parole hearing; he appeared at his initial parole hearing; and he received a written disposition of the Board's determination. McDermott, ¶ 11. Allen should complete certain programming requirements before his next scheduled reappearance in March 2019. His parole eligibility date and sentence calculation are correct. Accordingly, IT IS ORDERED that Allen's Petition for a Writ of Habeas Corpus is DENIED.

         The Clerk of the Supreme Court is directed to provide a copy of this Order to counsel of record; to the Board of Pardons and ...

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