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Collins v. Barkell

Supreme Court of Montana

April 30, 2019

DANIEL T. COLLINS, Petitioner,
v.
TIM BARKELL, JAKE MILLER and STATE OF MONTANA, Respondents.

          ORDER

         Representing himself, Daniel T. Collins has filed a petition for a writ of habeas corpus seeking two forms of relief. Collins contends that his sentence is illegal because it violates his right to be free from double jeopardy and that he is entitled to more credit for time served. In compliance with this Court's January 3, 2019 Order, the Attorney General for the State of Montana has filed a response addressing Collins's claims for additional credit for time while in the Montana Chemical Dependency Center (MCDC) and the Montana State Hospital (MSH). When Collins filed his petition, he was in the Anaconda-Deer Lodge County Jail.

         Collins has a lengthy criminal history, dating back to 1979. The State supplements the history Collins has provided in his petition. Collins's claims mainly concern his offenses and violations between the years 2013 to 2015.

         On February 2, 2013, Collins was arrested for new offenses. He was detained in the Missoula County Detention Facility (county jail) and later charged with failure to register as a sexual offender (Count I) and failure to register as a violent offender (Count II) in Missoula County District Court. Collins entered a plea agreement with the State whereby he pleaded guilty to Count II and Count I was dismissed. The plea agreement also contained the requirement that Collins attend and successfully complete chemical dependency treatment at MCDC. The agreement stated that Collins would receive a five-year suspended sentence with all but 117 days

with the understanding that [Collins] will be transported directly from custody to MCDC for his May 30th bed date after he enters his change of plea. If Defendant is released prior to his bed date, Defendant's attorney must provide proof of Defendant's enrollment or a statement as to his whereabouts to the Missoula County Attorney's Office within 24 hours of his bed date.

         On May 29, 2013, Collins pleaded guilty and was released prior to his sentencing. Collins was instructed to attend MCDC the next day and to report to Adult Probation and Parole for supervision. Collins reported to MCDC and was discharged July 2, 2013.

         On January 22, 2014, the District Court sentenced Collins to the Department of Corrections (DOC) for a five-year suspended term (2014 sentence), and Collins began serving his suspended term. The court credited him with 117 days of time served from February 2 to May 29, 2013. Collins did not receive credit for time spent at MCDC.

         The State provides that throughout 2014, Collins was arrested multiple times for alleged probationary condition violations. Collins posted bond and was released each time. Collins, however, failed to appear for a court date, and he was arrested on September 30, 2014. He remained in county jail pending the revocation hearing. On December 12, 2014, Collins filed a motion for immediate treatment because of an urgent medical issue. Collins was transported to the MSH on December 16, 2014, and Collins was returned to county jail on January 12, 2015. Collins was later returned to MSH on January 29, 2015, because of the need for continuing treatment. On February 5, 2015, Collins returned to county jail for his revocation proceeding.

         The District Court revoked Collin's 2014 sentence on February 25, 2015, and the court imposed the same sentence with additional terms and conditions (2015 sentence upon revocation). The District Court then revoked his 2015 sentence upon revocation on September 16, 2015, and imposed a five-year DOC term with no time suspended. The State points out that while the court did not grant Collins any credit for time at MCDC or MSH, it did amend the latest judgment to award Collins credit for 500 days of time served.[1]

         In his petition, Collins requests additional credit for his time at MCDC and his two visits to MSH during 2014 and 2015.[2] He challenges the requirement of registering as a violent offender. He requests an attorney in this matter because he has no access to a law library.

         The State responds that Collins is not entitled to any time while in MCDC or MSH. The State points to § 46-18-403(1), MCA, and that a person is "allowed credit for each day of incarceration prior to or after conviction ..." when "incarcerated on a bailable offense ... ." The State clarifies that the incarceration must be "directly related to the offense for which the sentence is imposed." State v. Graves, 2015 MT 262, ¶ 32, 381 Mont. 37, 355 P.3d 769 (citations omitted). Here, the State posits that Collins was not incarcerated while in MCDC and MSH. The State cites our case law where "a treatment facility [is not] a place of incarceration." State v. Byrd, 2015 MT 20, ¶ 18, 378 Mont. 94, 342 P.3d 9. The State notes the offender is not entitled to any additional credit for time when the time is for participation in a treatment program as a condition of probation. Dep't of Corrections v. Phelps, 2000 MT 18, ¶¶16-17, 298 Mont. 135, 995 P.2d 963. Lastly, the State adds that Collins was on personal medical leave from MCDF for treatment while housed in MSH, and he was not incarcerated. The State concludes that Collins's petition be denied.

         We agree with the State. Collins is not due any additional credit for time while in MCDC or MSH. 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. Collins has not demonstrated that he is incarcerated illegally.

         Collins's claims regarding double jeopardy and his requirement to register do not have any merit. His sentences upon revocation have not violated his right to be free from double jeopardy. "Simply put, double jeopardy exemplifies the legal and moral concept that no person should suffer twice for a single act." State v. Guillaume, 1999 MT 29, ¶ 17, 293 Mont. 224, 975 P.2d 312. Collins has not been punished twice; he has been resentenced in light of his probation violations in 2015. Pursuant to § 46-18-203(7)(a)(iii), MCA (2015), a court may revoke a suspended sentence and impose a term that is not any longer than the original sentence. Finally, Collins has convictions for sexual intercourse without consent and robbery in his criminal history, and the District Court deemed him a Level 1 sexual offender again in 2014. As of April 26, 2019, Collins was released and is no longer incarcerated. As Collins is a sexual offender and a violent offender, he is required to register. Therefore, IT IS ORDERED that Collins's Petition for a Writ of Habeas Corpus is DENIED.

         IT IS FURTHER ORDERED that Collins's Request for an Attorney and his Objection to the State's Motion for Extension of Time are both DENIED as moot.

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


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