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Barnacascel v. Guyer

Supreme Court of Montana

June 25, 2019

ZANDE BARNACASCEL, Petitioner,
v.
LYNN GUYER, WARDEN, and MONTANA DEP'T. OF CORRECTIONS, Respondents.

          ORDER

          Zande Barnacascel[1] 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."

         This 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.

         In 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.

         As for 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.

         Judgment, 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.

         Barnacascel 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 DENIED.

         The Clerk of the Supreme Court is directed to provide a copy of this Order to counsel of record and to Zande Barnacascel personally.

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Notes:

[1] 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, ...


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