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Blacker v. O'Fallon

Supreme Court of Montana

February 12, 2019

DAN O'FALLON, Warden Respondent.


         John Dean Blacker has filed two petitions for a writ of habeas corpus, asserting that a petition to revoke was filed for his suspended sentence that he claims to have discharged a year prior and requesting more credit for street time. In compliance with this Court's October 2, 2018 Order, the Attorney General for the State of Montana has filed a response, requesting that this Court deny his first petition and grant in part his second petition. Blacker has also filed a motion objecting to any future grants of extensions of time to be awarded to the State.

         Both Blacker and the State provide details concerning Blacker's multiple convictions, sentences, and revocations. On December 22, 1992, the Lewis and Clark County District Court sentenced Blacker to Montana State Prison (MSP) for issuing a bad check for ten years; imposed a six-month concurrent term for misdemeanor theft, and imposed a consecutive ten-year prison term, all suspended, for persistent felony offender (PFO) designation (Cause No. CDC-92-144, hereinafter 1992 sentence).[1] The District Court revoked his suspended PFO term in April 2010, and imposed a ten-year sentence to the Department of Corrections (DOC) with five years suspended. Blacker discharged this sentence on May 24, 2017.

         Blacker committed offenses in 1997 and the County Attorney filed a Notice of PFO Designation on February 20, 1997. The District Court sentenced Blacker to MSP for ten years for forgery and ten years, all suspended, for theft to run consecutively to each other and consecutively to his 1992 sentence (Cause No. ADC 97-45, hereinafter 1997 sentence). The County Attorney also sought PFO designation in a companion case on that date as well. In the companion case (CDC 1997-46), the District Court sentenced Blacker for forgery (common scheme) to MSP for ten years, to run, consecutively to his 1997 sentence. He discharged this sentence for the companion case on October 23, 2008.

         The County Attorney sought revocation of Blacker's 1997 suspended sentence multiple times. On May 3, 2018, the County Attorney filed a petition to revoke, and on May 31, 2018, the court sentenced Blacker upon revocation to the DOC for ten years with five years suspended (2018 sentence upon revocation). Also on that day, Blacker received a consecutive, ten-year suspended sentence to the DOC for felony forgery in a separate criminal case in the Lewis and Clark County District Court.

         First Petition

         Blacker indicates that his right to be free from double jeopardy has been violated. Blacker states that the County Attorney noted the mistake and said in open court that she would correct it. Blacker, however, contends that she did not because he received a copy of the petition to revoke with the 1992 cause number crossed out, and a 1997 cause number written in its place. Blacker thinks that the County Attorney never filed a petition to revoke in the correct criminal case and seeks his immediate release from prison.

         The State agrees that Blacker discharged his 1992 sentence on May 24, 2017. The State disagrees, however, that Blacker's rights have been violated or that he is entitled to release. The State explains that the evidence does not support Blacker's contention that the prosecutor never corrected the earlier mistake of filing a petition to revoke in a discharged criminal case. The State offers that the District Court issued, as attached, a nunc pro tune order correcting the cause numbers. The State points out that the prosecutor filed a petition to revoke in the correct cause number for his 1997 sentence, and that the District Court issued an order in the correct cause number, revoking Blacker's suspended sentence. The State reiterates that while the prosecutor may have filed the petition to revoke in the incorrect cause number and an arrest warrant was issued in that cause number, Blacker was given credit for all the time he served prior to his sentencing. The State concludes that Blacker has not demonstrated that the revocation of his suspended sentence was erroneous because any technical defect was corrected. See § 46-22-102, MCA ("A person may not be released on a writ of habeas corpus due to any technical defect in commitment not affecting the person's substantial rights.").


         We agree with the State. The County Attorney and the District Court corrected the cause number for the revocation petition's filing concerning his 1997 sentence. Blacker did not have a revocation of his 1992 suspended sentence which he had discharged earlier. Blacker has not demonstrated a facially invalid sentence of illegal incarceration. Section 46-22-101(1), MCA.

         Second Petition

         Blacker contends that he is entitled to all credit for elapsed time from May 24, 2017 to January 3, 2018, or 224 days, applied to his 2018 sentence upon revocation. Blacker states that he was awarded street time from May 24, 2017 to August 3, 2017, or 72 days. He states that he was law-abiding and compliant with1 Probation and Parole. He includes several attachments to support his claim.

         Blacker acknowledges that the County Attorney argued at his sentencing that he was non-compliant from August 4, 2017 to January 15, 2018, the date of his arrest. Blacker, however, contends that the County Attorney!did not support this allegation, and that he was compliant from August 4, 2017 until January 3, 2018. Blacker argues that he came to Helena Probation and Parole on October 17, 2017, and that he was able to find employment with the Labors Union. He adds that he was specifically assigned to Officer Newman with the Helena Probation and Parole and that this Officer testified at his sentencing. Blacker offers, while providing no transcript, that Officer Newman testified that Blacker seems to do well in the community and that he had no issues with him until the offense filed January 15, 2018. In lieu of this credit for street time, Blacker argues that the District Court erred because it did not state the reasons for denying this credit, pursuant to§46-18-203(7)(b), MCA.

         Section 46-18-203(7)(b), MCA, reads:

If a suspended or deferred sentence is revoked, the judge shall consider any elapsed time, consult the records and recollection of the probation and parole officer, and allow all of the elapsed time served without any record or recollection of violations as a credit against the sentence. If the judge determines that elapsed time should not be ...

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