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Bauer v. Guyer

Supreme Court of Montana

July 2, 2019

CHESTER R. BAUER, Petitioner,
v.
LYNN GUYER, Warden, Montana State Prison, Respondent.

          ORDER

         Chester 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.

         The 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.

         Bauer 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.

         Earlier 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).

         Bauer 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.

         We held 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.

         However, 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.

         Accordingly, 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 review.

         IT IS 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.

         The Clerk of the Supreme Court is directed to provide a copy of this Order to the Attorney General, to counsel for the Department of ...


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