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.
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.
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Board, on October 21, 2015, rescinded his parole and agreed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
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.
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.
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
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).
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).
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.
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
Clerk of this Court is directed to send a copy of this Order
to counsel of ...