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Pavlik v. Guyer

Supreme Court of Montana

June 18, 2019

LANCE CHRISTOPHER PAVLIK, Petitioner,
v.
LYNN GUYER, REGINALD MICHAEL, BOARD OF PARDONS AND PAROLE, STATE OF MONTANA, Respondents.

          ORDER

         Lance Christopher Pavlik has filed a petition for writ of habeas corpus, alleging that his sentence is illegal due to the manner in which it is being executed, that the Executive Branch's override and aggregation policy is unconstitutional, and that his right to due process was violated during a July 31, 2015 parole hearing. In compliance with this Court's March 28, 2019 Order, the Department of Corrections (DOC) has filed a response for Respondents Lynn Guyer, Warden of Montana State Prison (MSP), Reginald Michael, DOC Director, and the Montana Board of Pardons and Parole (Board), recommending denial of Pavlik's petition.

         Pavlik is currently an inmate at MSP. Pursuant to a plea agreement, Pavlik was convicted of two felony counts of Vehicular Homicide While Under the Influence and two felony counts of Criminal Endangerment. For each count of vehicular homicide, Pavlik was committed to the custody of DOC for 15 years, with ten years suspended. These two counts were to run consecutively to each other. For each count of criminal endangerment, Pavlik was committed to DOC for ten years, all suspended, to run concurrently together and with the vehicular homicide sentences. The sentencing court recommended that Pavlik complete the WATCh program and the Knight program.

         DOC placed Pavlik directly at MSP on March 13, 2013. On September 10, 2015, Pavlik became eligible for parole because he had served a quarter of his total unsuspended sentence often years. Pavlik, with counsel, appeared before the Board for his first parole hearing on July 31, 2015. Acting Chair Pete Lawrenson and Board member Coleen Magera heard Pavlik's case after Board member Bill McChesney recused himself. The Board denied Pavlik parole, citing the nature and severity of offenses, multiple offenses, and strong objections from criminal justice authorities and/or citizenry.

         Pavlik's next parole hearing is set for July 2021.

         As a threshold issue, DOC argues that because Pavlik did not challenge the legality of his sentence on direct appeal, his petition is procedurally barred under § 46-22-101(2), MCA, which provides that a writ of habeas corpus is not available to attack the sentence of a person who has been adjudged guilty of an offense and has exhausted the remedy of appeal-either by filing an appeal or failing to do so. See Ommundson v. Green, No. OP 11-0753, 364 Mont. 549, 286 P.3d 247 (table) (January 24, 2012).

         Pavlik maintains, however, that he could not have known within the deadlines for appeal or postconviction relief that his sentence would be executed illegally. He argues that applying a procedural bar under these circumstances would suspend the writ in contravention of Article II, Section 19, of the Montana Constitution, which states, "The privilege of the writ of habeas corpus shall never be suspended."

         We disagree with Pavlik that he could not have known the manner of the execution of his sentence until after his time for appeal or postconviction relief had run. The District Court's April 2, 2013 Judgment clearly states that each of the two vehicular homicide counts had sentences imposed of 15 years to DOC with all but five years suspended, and that these two sentences would run consecutively to each other. Thus, Pavlik could have challenged the legality of that sentence on direct appeal, but he failed to do so. For that reason, his petition for writ is procedurally barred under § 46-22-101(2), MCA.

         We further note that this Court has held that separate consecutive custodial terms which result in incarceration exceeding five years in the aggregate does not result in an illegal sentence under § 46-18-20 l(3)(a), MCA. In Sheridan v. Department of Corr., No. OP 11-0394, 362 Mont. 544, 272 P.3d 124 (table) (August 30, 2011), we held that consecutive custodial terms of three years and five years for consecutive prison terms were not illegal sentences since neither of the separate consecutive terms exceeded five years. Thus, even if Pavlik's petition were not procedurally barred, his sentence is not illegal.

         Finally, Pavlik has not demonstrated a violation of dueprocess at his parole hearing. Pavlik's allegation that Board member Magera requested to recuse herself from consideration of his parole is refuted by Magera's affidavit, and he has not "clearly identified" any conflict of interest she had with his case or any ground to support a claim of actual bias or prejudice by members of the Board. See Admin. R. M. § 20.25.101 (2). "This Court does not direct the administration of parole applications before the Board or sit in review of the Board concerning parole and its process." Madsen v. Guyer, No. OP 18-0699, Order, at 2 (Mont. Dec. 27, 2018). Pavlik has not carried his burden to demonstrate illegal incarceration.

         Therefore, IT IS ORDERED that the petition for a writ of habeas corpus is DENIED.

         The Clerk is directed to provide copies of this Order to ...


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