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Kokot v. State

Supreme Court of Montana

November 13, 2018



         By way of habeas corpus, Cyle Keith Kokot challenges his recent parole denial from the Board of Pardons and Parole (Board). We amend the caption to indicate the name of the current warden at Montana State Prison (MSP). Section 46-22-20l(1)(c), MCA.

         In May 2015, Kokot pleaded guilty to sexual assault in the Eighteenth Judicial District Court, Gallatin County. The District Court sentenced him to MSP for twenty-five years with ten years suspended. He appealed, raising the issue of "whether the District Court premised its sentencing decision on materially false information[.]" State v. Kokot, 2017 MT 198N, ¶ 2, 389 Mont. 542, 400 P.3d 243. We affirmed in part, reversed in part, and remanded the case to the District Court to strike a probationary condition based on the State's concession. Kokot, ¶¶ 2, 9-10.

         Kokot raises two issues about the parole hearing. He first questions whether he has a "constitutional, due process" right to rebut the statements from the Gallatin County Attorney that the Board considered. Kokot contends that confidential statements from the County Attorney were the basis of his denial and that he was not given the opportunity to rebut them at his hearing. He argues that this hearing should have been "fair [] and just" and his due process right to rebut or defend himself was violated. He next contends that he has a "reasonable expectation" of parole because he met all of the criteria in the administrative rules. Kokot requests a new and unbiased parole hearing and that this Court direct the Gallatin County Attorney "to cease and desist all its malicious activities or at least allow [him] to rebut them."

         Kokot's parole hearing was fair and just. This Court has determined before that the Board has broad authority and discretion to consider all relevant information. In Montana, the Board is specifically required to "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." McDermott v. McDonald, 2001MT 89, ¶ 20, 305 Mont. 166, 24 P.3d 200, quoting § 46-23-202, MCA (1985). In that case, we stated that "[p]arole ... is a discretionary grant of freedom from incarceration." McDermott, ¶ 24.

         The Board may consider much more information such as statements from various criminal justice authorities. Section 46-23-202(5), MCA (2013), [1] provides that "a hearing panel shall consider all available and pertinent information regarding the prisoner, including... written or oral statements from criminal justice authorities or any other interested person . . . regarding the effect of the crime on the victim." Montana's administrative rules support this. An interested person, such as a county attorney, may make oral statements to the Board or provide written ones. Admin. R. M. 20.25.401(3), (4) (2016).

         "It is well established that a parole release determination is not subject to all the due process protections required to convict or confine." McDermott, ¶ 11. In other words, a parole hearing is not a contested case or an adversarial proceeding like a criminal trial. "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 (citations omitted). Kokot was given the opportunity to be heard, not to rebut necessarily. Kokot appeared before the Board for his initial parole hearing, and he received a written copy of the decision. McDermott, ¶11. We conclude that his due process rights were not violated.

         Kokot does not have a reasonable expectation of parole because he does not have a liberty interest in parole since he committed his crimes in 2014, well after 1989. McDermott, ¶ 9, (citing Warden v. Board of Pardons and Parole, 1998 MT 168, ¶42, 289 Mont. 459, 962 P.2d 1157).

         This Court does not have the authority to fulfill Kokot's requests. The Board has the authority and discretion to consider pertinent statements. This Court does not reschedule parole hearings; the Board does. The Board has scheduled his reappearance in two years, which does not change the length of his net fifteen-year prison term.

         Kokot has not demonstrated that he is illegally incarcerated for this Court to grant a writ of habeas corpus. Section 46-22-101(1), MCA. Accordingly, IT IS ORDERED that Kokot'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 and to Cyle Keith Kokot personally.



[1] The 2013 version of Montana Code Annotated applies because Kokot was arrested and charged in August 2014. Kokot, ¶ 2. The language in § 46-23-202(5), MCA (2013), now appears in ...

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