Barnacascel has filed a typewritten "Petition for
Writ of Habeas Corpus" pursuant to § 46-22-101,
MCA, stating that he "is unlawfully imprisoned and
restrained of his liberty at the Montana State Prison . . .
." He explains that on February 24, 2005, he was
originally sentenced to a twenty-year sentence with fifteen
years suspended. He points out that when the District Court
revoked his sentence in August 2014, the court imposed a
harsher punishment of prison with a parole ineligibility
restriction and did not award Barnacascel street time credit.
Barnacascel concludes that his sentence upon revocation is
unlawful because he "had a legitimate expectation of
finality when he began serving his sentence that it would not
be changed mid-stream."
Court is familiar with Barnacascel and his claims for relief.
In October 2004, Barnacascel pled guilty to felony burglary
in the Fourth Judicial District Court, Missoula County. As he
acknowledges, he received a twenty-year commitment to the
Department of Corrections (DOC) with fifteen years suspended.
He discharged his prison < term on May 21, 2009, and he
began serving his probationary term. Barnacascel fails to
mention that in 2010, the District Court revoked his
suspended sentence because of a probation violation and
sentenced Barnacascel to the Montana State Prison (MSP) for
fifteen years, all suspended. On August 28, 2014, the
District Court revoked his suspended sentence again and
sentenced Barnacascel to MSP for fifteen years without the
possibility of parole.
2015, Barnacascel filed a petition for habeas corpus relief
with this Court where he asserted "that the Missoula
County District Court exceeded its authority under §
46-18-203(7)(a)(iii), MCA (2003), when in August 2014, it
sentenced him upon revocation to the Montana State Prison
(MSP) for fifteen years without the possibility of
parole." Barnacascel I, at 1. Barnacascel
argued then that his sentence upon revocation was more
burdensome that the original sentence imposed. We pointed out
that Barnacascel's sentence upon revocation is not any
more burdensome because the District Court possessed the
statutory authority to impose the sentence pursuant to §
46-18-202(2), and 46-18-203(7)(a)(iii), MCA. We stated:"
The sentence Barnacascel received upon revocation could have
been imposed when he was originally sentenced and does not
include a longer imprisonment or commitment term than the
original sentence." Barnacascel I, at 4.
Barnacascel's claim that his sentence upon revocation is
unlawful because the court did not address his time spent on
probation, pursuant to § 46-18-203(7)(b), MCA, it is
also without merit. When the District Court revoked his
original sentence in 2010, sentencing him to MSP for a
suspended fifteen year sentence, the court pointed out the
terms and conditions are the same as his original judgment.
The court also provided that Barnacascel "shall receive
credit for nineteen (19) days served
towards new Condition #1
only, but shall not receive any credit for street
time." Judgment, at 2 (Mont. Fourth Judicial Dist. Ct.
July 14, 2010) (emphasis in original). The court gave its
reasons for the Judgment:
1. This sentence conforms to the recommendations of the State
of Montana and the Defendant and gives the Defendant an
incredible second chance.
2. The Defendant has agreed to this sentence in open Court.
at 2 (Mont. Fourth Judicial Dist. Ct. Jul. 14, 2010). The
court gave its reason for no award of street time then.
Section 46-18-203(7)(b), MCA. In 2014, the court gave its
reason for the sentence upon revocation as: "The [c]ourt
made a commitment to the Defendant 4 years ago and it intends
to keep it." Barnacascel agreed to no street time in
2010, and the District Court held him to that again in 2014.
has not demonstrated a prima facie case for habeas corpus
relief. He has not met his burden of persuading this Court
that the writ of habeas corpus should be issued. Miller
v. Eleventh Jud. Dist. Ct, 2007 MT 58, ¶ 14, 336
Mont. 207, 154 P.3d 1186. Barnacascel is not imprisoned
unlawfully or restrained of liberty to warrant habeas corpus
relief. As we have explained before, his sentence is within
the sentencing court's statutory authority and is not
invalid or illegal. Moreover, Barnacascel is barred from
seeking relief from a sentence upon revocation because habeas
corpus relief "is not available to attack the legality
of an order revoking a suspended or deferred sentence."
Section 46-22-101(2), MCA. Accordingly, IT IS ORDERED that
Barnacascel's Petition for a Writ of Habeas Corpus is
Clerk of the Supreme Court is directed to provide a copy of
this Order to counsel of record and to Zande Barnacascel
 Barnacascel has filed petitions with
this Court under both first names of Zande and Zanda. See
Barnacascel v. Kirkegard, No. OP 15-0552, 382 Mont. 409,
363 P.3d 1146 (table) Order, at 1 (Nov. 17, ...