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Englert v. Guyer

Supreme Court of Montana

February 12, 2019

THOMAS PHILLIP ENGLERT, Petitioner,
v.
LYNN GUYER, Respondent.

          ORDER

         Representing himself, Thomas Phillip Englert has filed a petition for a writ of habeas corpus, indicating that the Board of Pardons and Parole (Board) violated his right to due process of law when it denied his parole because Englert has not completed sexual offender program (SOP) II treatment-a Board-imposed condition for parole. He contends that he should not be in a group to admit a crime for which he is innocent. Citing to Admin. R. M. 20.25.501(7), he requests reconsideration of the Board's decision because of this "erroneous or false information," as its basis of denial. Englert also requests reversal because the "decision reached us[ed] incorrect information." Englert submits that his parole denial, however, was "based largely on his failure to admit guilt during his non-court ordered SOP II classes."

         This Court is familiar with Englert's history. In December 1984, Englert entered a plea of guilty to deliberate homicide in the Fourth Judicial District Court, Missoula County. The District Court's judgment provides the background leading to this homicide. In 1983, Englert had done odd jobs for a seventy-year old, disabled woman with whom he had befriended. One late night, he used a ladder to break into her house and committed several felonies. He stole her money, took her rings, raped her, tried to smother her with pillows, and fatally stabbed her. The District Court imposed "a term of life imprisonment in the Montana State Prison without eligibility of parole or work furlough." In 1988, the Sentence Review Division of the Supreme Court of Montana imposed a parole restriction of forty-five years in place of the parole ineligibility restriction.[1]

         Last year, this Court addressed the issue of Englert's parole condition imposed by the Board.

At issue in Englert's instant petition is whether the Board may impose . SOP treatment in light of his conviction for deliberate homicide and the court's sentence. We conclude that the Board does have the authority. This Court has recognized that the Board's authority is very broad, and that the Board may consider factors that a trial court may not. McDermott v. McDonald, 2001 MT 89, ¶ 20, 305 Mont. 166, 24 P.3d 200; see also § 46-23-208(4), MCA. Here, the Board considered the context of his offense. Section 46-23-208(4)(a), (b), MCA. Englert's parole may be contingent upon conditions under the Board's authority. McDermott, ¶¶ 19-20. By imposing this condition, the Board has not violated Englert's due process rights either.
In Sage, we adopted the United States Supreme Court's reasoning that "due process in the context of parole does not require 'repeated adversary hearings. . . .'" Moreover, we explained "at minimum, ... the prisoner be provided an opportunity to be heard and a written statement explaining why he was denied parole."
Quigg v. Slaughter, 2007 MT 76, ¶ 45, 336 Mont. 474, 154 P.3d 1217, referring to Sage v. Gamble, 279 Mont. 459, 465, 929 P.2d 822, 825 (1996) (citing Greeholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 14, 16, 99 S.Ct. 2100, 2107-08 (1979)).

Englert v. Salmonsen, No. OP 18-0438, Order at 2 (Mont. Aug. 7, 2018).

         McDermott is the seminal case concerning the Board's authority to impose conditions upon parole. There, we determined that "the statutory basis for the court's sentencing authority is not applicable to the Board." McDermott, ¶ 18. We stated that "[s]ince parole is granted as a matter of grace, rather than right, the state may offer such grace under and subject to such conditions as it considers most conducive to accomplish the desired purpose." McDermott, ¶ 19 (citation omitted). "While the standard for release on parole is also limited by statute, the Board has considerably more discretion to impose conditions than does a sentencing court." McDermott, ¶ 18. We specifically stated:

[T]he Board's statutory authority is broad enough to permit its consideration of McDermott's dismissed incest counts, the results of his initial needs assessment showing severe sexual problems and his refusal to participate in an SOP when determining whether to grant him an early release on parole.

McDermott, ¶ 21. See also Leek v. Frink, No. OP 14-0073, Order, at 3 (Mont. Mar. 4, 2014) (We concluded that the Board acted within its authority in requiring Leek to complete SOP II even though the sexual offense was dismissed.). The statutory authority for the Board's action is found in § 46-23-202, MCA (1983), wherein "the board shall 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[.]" See also Admin. R. M. 20.25.505(1) (2016). According to the District Court's judgment, the nature and circumstances of Englert's offense included rape.

         Furthermore, Englert's attachments undercut his argument that he is illegally incarcerated. Englert attached a June 11, 2018 copy of Treatment Failure and Dismissal Criteria from the prison SOP II, in which the SOP therapist provided: "If he comes to an end of his legal attempts for relief and changes his attitude toward[] treatment [the therapist] would offer him this treatment again." Even though Englert includes a 2007 document which rejected his treatment request for SOP II, his more recent attachment of failure and dismissal reflects that Englert was part of SOP II in prison. The Board's November 14, 2018 Case Disposition provides in its handwritten remarks: "Must comp[lete] SOP II- may request early App[earance] upon Completion of SOP II."

         Englert holds the power here to achieve a grant of parole. He must complete SOP II treatment. The therapist for SOP II is willing to take him back for completion of this parole condition. The Board is willing to have him re-appear once he completes SOP II because he has completed other aspects of his parole plan. See Admin. R. M. 20.25.402(6) and 20.25.306(1) (2012). The Board retains broad discretion in applying statutory criteria to decisions of whether to grant a prisoner early release from custody. McDermott, ¶ 25. Englert has not presented evidence that the Board's decision was "based on erroneous or false information," pursuant to Admin. R. M. 20.25.501(7) (2016). In light of the foregoing, this Court will not reverse the Board's decision or return the matter to the Board. Englert has not demonstrated that the Board violated his due process rights in denying him parole. And, he has not demonstrated illegal incarceration. Section 46-22-101(1), MCA. Therefore, IT IS ORDERED that Englert's Petition for a Writ of Habeas Corpus is DENIED.

         The Clerk of Court is directed to provide a copy of this Order to counsel of record and ...


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