Miles White petitions for habeas corpus relief, raising
several issues but primarily contending his incarceration is
illegal because his 2006 sentence imposed twenty-nine
"parole conditions." Pursuant to our Order, the
Attorney General for the State of Montana has filed a
response, which concedes that White is entitled to relief, in
Yellowstone County jury convicted White of deliberate
homicide in March 2006. The Thirteenth Judicial District
Court sentenced White to the Montana State Prison for life
and imposed an additional ten-year term for use of a weapon
pursuant to § 46-18-221, MCA, to run concurrently with
his life sentence. The District Court's Judgment stated:
IT IS FURTHER ORDERED that pursuant to oral pronouncement at
the sentencing hearing, a copy of the Defendant's Motion
to Strike and Object to Pre-Sentence Investigation and Motion
for Revised PSI is hereby attached to this Judgment as
IT IS FURTHER ORDERED that should the defendant be paroled
the following additional conditions shall apply [, ] .
(Mont. Thirteenth Judicial Dist. Ct, Jun. 16, 2006). The
court listed twenty-nine conditions that appear to be
standard probationary conditions, with the exception of
Condition 27. Sections 46-18-201, 46-18-202, MCA.
Condition 27 appears to be a separate requirement for
registration as a violent offender, which is premised upon
independent statutory authority. White appealed his
conviction, challenging the District Court's denial of
his motion for mistrial, and we affirmed. State v.
White, 2008 MT 129, ¶¶ 10-17, 343 Mont. 66,
184 P.3d 1008.
petition, White argues that this Judgment is "unlawful
and illegal" because "[a] sentencing court does not
have statutory authority to impose conditions of
parole." State v. Heafner, 2010 MT 87, 356
Mont. 128, 231 P.3d 1087. White also asserts that a court
should decide any pending motions before imposing a sentence,
and that the failure of the District Court to rule on his
pending motion before imposing sentence violated due process.
Further, he asks this Court to correct our November 20, 2012
Order, issued in response to a previous petition filed by
White, which stated that his ten-year term for use of a
weapon ran consecutively to his sentence for deliberate
homicide, rather than concurrently, as stated in the
Judgment. White v. State, No. OP 12-0539, 368 Mont.
412, 306 P.3d 1015 (table) (Nov. 20, 2012).
State argues that White's issue concerning pending
motions before imposition of sentence was waived for failing
to raise it on appeal, and White is now procedurally barred
from raising the issue in a habeas proceeding because his
remedy of appeal is exhausted. Sections 46-18-116,
46-22-101(1), MCA. The State further argues that White's
habeas petition is not the appropriate remedy to correct a
previous order from this Court, and White has not
demonstrated his imprisonment is illegal. Section
the State concedes that White's judgment contains parole
conditions which the District Court had no statutory
authority to impose. See Heafner, ¶ 6;
State v. Burch, 2008 MT 118, ¶ 36, 342 Mont.
499, 182 P.3d 66. The State points out that Burch
and Heafner were decided after White was sentenced,
and that the procedural habeas corpus bar does not apply here
because the illegal portions of White's sentence stem
"from a rule created after time limits for directly
appealing or petitioning for postconviction relief ha[d]
expired." Beach v. State, 2015 MT 118, ¶
6, 379 Mont. 74, 348 P.3d 629 (referring to Lott v.
State, 2006 MT 279, ¶ 22, 334 Mont. 270, 150 P.3d
337). The State recommends this Court remand White's case
to the District Court with instructions to strike illegal
parole conditions and to enter an amended sentence where the
court may restate any parole "conditions" as
recommendations to the Board of Pardons and Parole.
Heafner, ¶ 11.
noted above, with the exception of Condition 2*7, the
challenged conditions, numbered 1-26, and 28-29, appear to be
standard probationary conditions that cannot be imposed by a
sentencing court as parole conditions. Heafner,
¶ 6. Good cause appearing, IT IS ORDERED that
White's Petition for a Writ of Habeas Corpus is GRANTED
IN PART. This matter is REMANDED to the Thirteenth Judicial
District Court, Yellowstone County, under Cause No. DC
05-0601, to amend White's sentence and Judgment by
striking the designation of conditions 1-26 and 28-29 as
parole conditions and restating said conditions as
recommendations to the Board of Pardons and Parole pursuant
to § 46-23-215, MCA. Resentencing is not required.
Heafner, ¶ 11.
FURTHER ORDERED that White's Petition for a Writ of
Habeas Corpus is DENIED as to any further relief.
Clerk is directed to provide a copy of this Order to the
Thirteenth Judicial District Court, Yellowstone County; to
Terry Halpin, Clerk of District Court, Yellowstone County,
under Cause No. DC 05-0601; to counsel of record; and to Joel
M. White personally.
 Effective October 22, 2018, Lynn Guyer
is the Warden of Montana State ...