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Lannybuehl v. Salmonsen

Supreme Court of Montana

November 13, 2018

LANNYBUEHL, Petitioner,
v.
JIM SALMONSEN, Acting Warden, [1] Respondent.

          ORDER

         Self-represented Petitioner Lanny Buehl has filed a petition for a writ of habeas corpus, asserting that his incarceration is illegal because more than five days elapsed between his arrest and onsite hearing, in contradiction to § 46-23-1024(2), MCA. In compliance with this Court's August 29, 2018 Order, the Department of Corrections (Department) has filed a response requesting that Buehl's petition be denied.

         The Department provides Buehl's background, which we summarize here. On May 9, 2011, the Ninth Judicial District Court, Glacier County, convicted Buehl of felony assault with a weapon and sentenced him to a ten-year prison term with all of the time suspended. A few months later, the State filed a petition to revoke because of violations of several probationary terms. The District Court revoked his suspended sentence and sentenced him to a ten-year prison term with 301 days of credit for time served.

         On April 24, 2013, Buehl appeared before the Board of Pardons and Parole (Board). The Board denied his parole and scheduled a reappearance in 2015. The Board granted parole on the condition that Buehl complete boot camp and aftercare. Buehl did not complete boot camp and was referred to the Board. The Board, on October 21, 2015, rescinded his parole and agreed to parole Buehl if he completed Connections Corrections treatment program. After his successful completion of the treatment program, the Board granted Buehl parole on February 17, 2016.

         On February 1, 2018, the Poison city police department arrested Buehl for being under the influence of drugs and alcohol. The police took him to the Poison probation and parole office because the Lake County jail was full. A probation officer issued a warrant to arrest and hold Buehl in the Flathead County Detention Center (FCDC), pending a hearing on his parole violations of failure to report and illegal drug use. The hearing officer conducted an onsite hearing at FCDC on February 7, 2018. At that time, Buehl admitted to possessing methamphetamine, marijuana, and alcohol, but denied the allegations of failure to report and securing employment. Probable cause was found that Buehl had violated the conditions of his parole and the matter was referred to the Board for a formal revocation hearing. The Board conducted a revocation hearing and revoked Buehl's parole.

         Buehl contends that six days elapsed before his parole revocation hearing, in violation of § 46-23-1024(2), MCA. He states that he was arrested on February 1, 2018, and that his on-site hearing was on February 7, 2018. Because of this violation, Buehl requests his immediate release to parole.

         Section 46-23-1024(2), MCA (2017), reads:

The initial hearing is an onsite hearing but may be conducted via interactive videoconference and must be held to determine whether there is probable cause or reasonable grounds to believe that the arrested parolee has committed acts that would constitute a violation of parole conditions. An independent officer, who need not be a judicial officer, shall preside over the hearing. The hearing must be conducted at or reasonably near the place of the alleged parole violation or arrest and within 5 days after arrest. The parolee must be given notice of the hearing and must be allowed to appear and speak in the parolee's own behalf and introduce relevant information to the hearings officer.

(Emphasis added.)

         The Department acknowledges that Buehl's initial hearing was held on the sixth day after his arrest. The Department contends, however, that the one-day delay between Buehl's arrest and hearing do not violate his due process rights here. The Department puts forth that Buehl has not asserted any prejudice to him because of this delay. The Department contends that Buehl's hearing was conducted in a timely fashion and within a short period of his arrest, providing him all of the process he was due, as established in Morrissey v. Brewer, 408 U.S. 471, 485, 92 S.Ct. 2593, 2602 (1972).

         We agree with the Department. Buehl was afforded due process in light of the statute and case law. The United States Supreme Court has held that following arrest, a parolee has a right to an administrative on-site hearing at "the state institution" to determine if reasonable grounds for revocation exist. Morrissey, 408 U.S. at 485, 92 S.Ct. at 2602. This Court has determined that "[t]he purpose of an on-site hearing is to determine whether there is probable cause or reasonable ground to believe that the arrested parolee has committed acts that would constitute a violation of parole conditions." Owens v. Risley, 217 Mont. 35, 37, 702 P.2d 1, 2 (1985).

         The one-day difference between Buehl's hearing on the sixth day and the statutorily-mandated five days does not rise to a violation of his due process rights. Although § 46-23-1042(2), MCA, mandates that the hearing take place within five days, the issue before this Court is whether the one day delay compromised Buehl's right to due process. It did not. "[D]ue process would seem to require that some minimal inquiry be conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available." Morrissey, 408 U.S. at 485, 92 S.Ct. at 2602. After his arrest, Buehl-as demonstrated in the supporting documentation-was given notice of the hearing. At his hearing, Buehl was allowed to appear, to speak on his own behalf, and to introduce any supporting evidence, pursuant to § 46-23-1024(2), MCA. The Board determined that Buehl violated his parole and subsequently revoked his parole. Buehl is not entitled to immediate release, and he has not demonstrated illegal incarceration. Section 46-22-101(1), MCA.

         This Court declines to address Buehl's filed objection to the Department's grant of extension of time to file a response to his petition. Therefore, IT IS ORDERED that Buehl's Petition for a Writ of Habeas Corpus is DENIED and DISMISSED.

         The Clerk of this Court is directed to send a copy of this Order to counsel of ...


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