CHESTER R. BAUER, Petitioner,
LYNN GUYER, Warden, Montana State Prison, Respondent.
R. Bauer has filed a petition for a writ of habeas corpus,
challenging his conviction of felony incest after jury trial
in the Third Judicial District Court, Anaconda-Deer Lodge
County. He has attached a copy of the District Court's
case register and Judgment.
State of Montana filed an Amended Information in April 2000
charging Bauer with two counts of felony incest and one count
of misdemeanor unlawful transaction with children. The jury
found Bauer guilty of incest and not guilty of the other
counts. On January 24, 2001, the District Court sentenced
Bauer to prison for life and imposed "an additional
twenty (20) years in accord with the Persistent Felony
Offender notice filed in this case." The two sentences
were to run consecutively.
appealed his conviction and raised four issues. State v.
Bauer, 2002 MT 7, 308 Mont. 99, 39 P.3d 689. We
affirmed, stating ''Bauer's conviction of the
offense of incest is supported by sufficient evidence, and
each of the challenged evidentiary and procedural rulings of
the District Court falls within the court's discretionary
authority." Bauer, ¶ 34.
this year, Bauer sought an out-of-time appeal of the 2001
District Court Judgment. As grounds, he asserted claims of
constitutional rights' violation, a void judgment, and
judicial bias. This Court denied Bauer's petition for an
out-of-time appeal because "Bauer has already appealed
his conviction and is procedurally barred from seeking
further relief via a second direct appeal. Sections
46-20-101(2) and 46-20-104(1), MCA (1999)." State of
Montana v. Chester R. Bauer, No. DA 19-0182, Order, at 1
(Mont. Apr. 2, 2019).
here also alleges judicial bias by the presiding judge and
denial of due process in the commencement of his prosecution.
He argues the presiding judge violated his right to due
process when he refused to recuse himself after conducting
Bauer's arraignment. Because of the faulty prosecution,
Bauer contends that he has a facially invalid sentence for
which the sentencing court did not have the authority.
in State v. Montgomery, 2015 MT 151, ¶ 11, 379
Mont. 353, 350 P.3d 77, that the "Montana statute
provides 'three different procedures by which the State
can obtain the requisite probable cause determination before
filing charges in district court'" (internal
citations omitted). "[A] defendant is not entitled to
any specific procedure." Montgomery, ¶ 11
(citations omitted). If the State commences prosecution by
filing an application and an affidavit that identifies
supporting evidence demonstrating probable cause, the
district court has subject matter jurisdiction to proceed
"as stated in Mont. Const, art. VII, § 4(1) and
§ 3-5-302(1)(a), MCA." Montgomery,
¶11- The State commenced Bauer's felony prosecution
under Montana's statutory scheme by filing an
application, which includes an information for leave of court
and an affidavit supported by evidence. Section 46-11-201(2),
MCA (1999). The District Court had subject matter
jurisdiction, and Bauer's judgment is not void.
Bauer's claims about due process violations and the
judge's recusal after the initial appearance or
arraignment constitute collateral attacks upon his
conviction, and they fail to provide a basis for habeas
relief. Section 46-22-101(1), MCA.
Bauer discusses his sentences and the "extra 20
years" for persistent. felony offender designation that
he argues prevents him from parole consideration. We observe
that Bauer's sentences for felony incest and for
designation as a persistent felony offender may be facially
invalid and subject to habeas relief. State v.
Gunderson, 2010 MT 166, ¶ 54, 357 Mont. 142, 237
P.3d 74. We deem it appropriate to require a response.
IT IS ORDERED that Bauer's Petition for a Writ of Habeas
Corpus is DENIED IN PART as to his claims attacking his
conviction, discussed above. However, this petition remains
PENDING for purposes of obtaining a response and conducting
FURTHER ORDERED that the Attorney General or counsel for the
Department of Corrections is GRANTED thirty days from the
date of this Order in which to prepare, file, and serve a
written response addressing whether Bauer has a facially
invalid sentence under law, including State v.
Gunderson, 2010 MT 166, 357 Mont. 142, 237 P.3d 74.
Clerk of the Supreme Court is directed to provide a copy of
this Order to the Attorney General, to counsel for the
Department of ...