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.
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
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.
next parole hearing is set for July 2021.
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).
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."
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.
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.
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.
IT IS ORDERED that the petition for a writ of habeas corpus
Clerk is directed to provide copies of this Order to ...