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Combs v. Michael

Supreme Court of Montana

November 27, 2018

ALAN FRANK COMBS, Petitioner,
v.
REGINALD MICHAEL, Director MONTANA DEPARTMENT OF CORRECTIONS, LYNN GUYER, Warden, MONTANA STATE PRISON, Respondents.

          ORDER

         Self-represented Petitioner Alan Frank Combs has filed a petition for a writ of habeas corpus, alleging that he is serving a facially invalid sentence because the Flathead County District Court has not resentenced him correctly nor delivered a copy of its February 21, 2018 Order Amending Sentence to the Department of Corrections (DOC). Combs's instant petition concerns twenty-seven probation and parole conditions imposed by the Flathead County District Court in open court on September 15, 2005, and in writing on September 20, 2005. He includes copies of his original Flathead County District Court Judgment and Sentence along with other Orders and correspondence. We amend the caption to include the name of current Warden of Montana State Prison (MSP).

         Combs is serving two consecutive sentences of thirty years for aggravated burglary and twenty years for assault with a weapon. The sentencing court did not suspend any of the prison time.

         In 2017, Combs sought relief in the District Court for Powell County, where he is imprisoned. On June 30, 2017, the Powell County District Court granted Combs's petition for habeas corpus relief because the State conceded that Combs's sentence was illegal due to the parole conditions. See, e.g., State v. Heafner, 2010 MT 87, ¶ 6, 356 Mont. 128, 231 P.3d 1087 ("It is clear that except as to those specific conditions authorized by statute, the District Court did not have the power to impose conditions upon a future parole that might be granted to Heafher."). The Powell County District Court, pursuant to § 46-22-306, MCA, remanded the matter to the Flathead County District Court for resentencing to correct the illegality. On February 21, 2018, the Flathead County District Court issued its Order Amending Sentence in Cause No. DC-04-244(C), and amended the September 2005 Judgment and Sentence, noting that the matter was undisputed. The District Court struck the original language on page four and replaced it, as shown below:

As conditions of parole and probation, the Defendant must comply with the following:
The following probation/parole conditions that are not expressly authorized-by statute are merely recommendations to the Board of Pardons and Parole:

         Order Amending Sentence (Mont. Eleventh Judicial Dist. Ct. Feb. 21, 2018).

         On August 20, 2018, Combs sent an Offender/Staff (OSR) Form to MSP Records to verify if the Records Department received a copy of this Order Amending Sentence. Staff responded that they had not, and remarked that they have only the September 15, 2005 sentencing order.

         Combs now seeks habeas corpus relief with this Court because he claims that he is entitled to immediate relief. He contends that the Flathead County District Court lacked the statutory authority to impose parole conditions originally. The crux of Combs's argument is that because the District Court did not explicitly resentence him in open court, the court's Order does not correct his facially invalid sentence. He argues that the District Court did not follow the statutory authority for such a hearing, specifically, § 46-18-102(1), and § 46-18-115, MCA. He states that he had no opportunity to be heard, there was no oral pronouncement of sentence, and that an amended judgment and sentence pursuant to § 46-18-116(1), and § 46-18-601(1), MCA, would have been "delivered to the prison."

         The only relief to which Combs is entitled is to have a copy of the Flathead County District Court's Order Amending Sentence sent to MSP Records Department. This relief does not include another complete sentencing hearing under Montana's statutes. Although the Powell County District Court used the word, "resentencing," it effectively returned the matter to correct any language concerning parole conditions. Heafner, ¶ 10. The Flathead County District Court has since corrected the illegal provision. Heafner, ¶ 11. In Heafner, this Court determined that "[t]he sentencing document should therefore accurately reflect the sentence and any applicable conditions." Heafner, ¶ 11. Combs was convicted in 2005, and his 2005 prison sentence was and remains valid. The sentencing court, upon return of the writ, merely corrected its language to reflect a recommendation, rather than an order, for parole conditions. Combs is not entitled to an opportunity to appear in open court for resentencing because the recommended conditions are not new or more punitive than before. State v. Therr.iault, 2000 MT 286, ¶¶ 43-46, 302 Mont. 198, 14 P.3d 444.

         Habeas corpus affords applicants an opportunity to challenge collaterally the legality of their present incarceration. Section 46-22-101(1), MCA; Lott v. State, 2006 MT 279, ¶ 9, 334 Mont. 270, 150 P.3d 337. Combs successfully petitioned the Powell County District Court for habeas corpus relief, and he has received an amended sentence that complies with the law. Unfortunately, the amended judgment apparently was not provided to the DOC or MSP. In light of the foregoing, IT IS ORDERED that the Clerk of District Court, Flathead County, shall forthwith send a copy of the filed February 21, 2018 Order Amending Judgment in Cause No. DC-04-244(C) to the Department of Corrections, Adult Probation and Parole Division, and to the Montana State Prison.

         IT IS FURTHER ORDERED that Combs'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 Peg Allison, Clerk of District Court, Flathead County, to be filed in Cause No. DC-04-244(C); to the Honorable Heidi J. Ulbricht, Eleventh Judicial District Court, ...


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