Petitioner Vernon Kills on Top (Kills on Top) has filed a
petition for a writ of habeas corpus, alleging that his
sentence is illegal because his "joint convictions and
sentences for aggravated kidnapping and for deliberate
homicide are improper" under this Court's decision
in State v. Russell, 2008 MT 417, 347 Mont. 301, 198
P.3d 271. In compliance with this Court's November 26,
2018 Order, the Attorney General for the State of Montana has
filed a response and argues the petition should be denied.
State has provided a lengthy procedural history of Kills on
Top's case and his many requests for relief from his
convictions and sentences in state and federal courts, which
we summarize. We have previously issued several opinions in
the case: State v. Kills on Top, 243 Mont. 56, 793
P.2d 1273 (1990) cert denied, 501 U.S. 1259, 111
S.Ct. 2910 (1991) (Kills on Top I); Kills on Top
v. State, 279 Mont. 384, 928 P.2d 182 (1996) (Kills
on Top II); Kills on Top v. State, 2000 MT 340, 303
Mont. 164, 15 P.3d 422 (Kills on Top III); Kills on Top
v. Sentence Review Div., No. OP 13-0498, Order, 2013
Mont. LEXIS 529 (Oct. 22, 2013) (Kills on Top IV).
August 1988, a jury in Custer. County found Kills on Top
guilty of robbery, aggravated kidnapping, and deliberate
homicide. The homicide count of which Kills on Top was
convicted was charged under the felony murder statute; he was
convicted of causing the death of another while committing
aggravated kidnapping, under § 45-5-102(1)(b), MCA
(1987). The Custer County District Court sentenced
Kills on Top to forty years at the Montana State Prison (MSP)
for robbery and imposed the death penalty for both aggravated
kidnapping and homicide. Kills on Top appealed, asserting
fifteen claims of error. This Court affirmed his original
sentences, including the death penalty for aggravated
kidnapping and deliberate homicide. Kills on Top I,
243 Mont, at 109, 793 P.2d at 1309.
first appeal, Kills on Top challenged the District
Court's refusal to give the jury lesser included
instructions for all three felonies, such as assault for
deliberate homicide. Kills on Top I, 243 Mont, at
91, 793 P.2d at 1297. This Court concluded that the District
Court did not err in denying Kills on Top's instructions
on these offenses. Kills on Top I, 243 Mont, at 92,
793 P.2d at 1297. We stated that Kills on Top "was not
entitled to an instruction on these lesser included
offenses." Kills on Top I, 243 Mont, at 91, 793
P.2d at 1297. Relying on a 1981 case, we reiterated that
"the underlying felony in a deliberate homicide pursuant
to [§] 45-5-102(1)(b), MCA, is not a lesser included
offense of felony murder." Kills on Top I, 243
Mont, at 92, 793 P.2d at 1297 (citing State v.
Close, 191 Mont. 229, 245-49, 623 P.2d 940, 949-51
(1981)). We affirmed the imposition of the death penalty for
both aggravated kidnapping and deliberate homicide because he
"was charged as a principal and by accountability."
Kills on Top I, 243 Mont, at 94, 793 P.2d at 1299.
1996, in response to Kills on Top's petition for
postconviction relief, we vacated his death sentences and
ordered that he be resentenced. Kills on Top II, 279
Mont. 384, 401-24, 928 P.2d 182, 193-207. On remand, the
District Court sentenced Kills on Top to forty years for
robbery, life in prison for deliberate, homicide, and life in
prison without parole for aggravated kidnapping, to run
consecutively (hereinafter, 1998 sentence). Kills on Top
appealed his 1998 sentence, and this Court affirmed.
Kills on Top III, ¶¶ 1, 74-5.
2001, Kills on Top filed a petition for a writ of habeas
corpus in federal court and, after ten years of litigation,
all of his claims were denied. In 2011, the United States
Supreme Court denied his petition for certiorari of his
petition. The next year, Kills on Top filed an application
for review of his 1998 sentence with the Sentence Review
Division, which the Division denied. In 2013, Kills on Top
sought supervisory control over the Division by this Court,
but we denied his petition, reasoning Kills on Top had not
established a basis for relief from the Division's
decision. See Kills on Top IV, at *5-*6. In 2015,
the United States Supreme Court again denied a petition for
writ of certiorari filed by Kills on Top seeking to revisit
the claims denied in his 2001 petition in federal court.
instant petition, Kills on Top correctly explains that, in
1988, he was convicted of deliberate homicide under the
felony murder rule in § 45-5-102(1)(b), MCA (1987). He
was also convicted of the separate offense of aggravated
kidnapping under § 45-5-503(1)(b), MCA (1987), which
served as the underlying or predicate offense of deliberate
homicide for purposes of the felony murder rule. He received
separate, consecutive sentences for these two crimes: a
sentence of life without parole for aggravated kidnapping,
and a sentence of life for deliberate homicide, which did not
contain a parole restriction. Relying on State v.
Russell, 2008 MT 417, 347 Mont. 301, 198 P.3d 271, Kills
on Top argues that his separate sentences for aggravated
kidnapping and for deliberate homicide under the felony
murder rule, based upon aggravated kidnapping, are improper
under § 46-11-410, MCA (1987), which prohibits multiple
convictions in certain situations, and is commonly known as
Montana's "double jeopardy statute." He also
argues that these sentences violated his right against double
jeopardy under the United States and Montana Constitutions.
State opposes the petition and argues no effective relief can
be granted here. The State points out that none of the
arguments Kills on Top made on appeal concerned his sentence
violating constitutional double jeopardy or Montana's
double jeopardy statute, § 46-11-410, MCA (1987), and
that Kills on Top is procedurally barred from attacking the
validity of his convictions because he did not previously
raise double jeopardy and is precluded from raising it now.
Section 46-22-101(1), MCA. The State notes that Kills on
Top's brother and co-Defendant, Lester, raised an
argument about double jeopardy in a postconviction
proceeding, but that Kills on Top has not and is procedurally
barred to do so.
State argues Kills on Top has not met the threshold issue of
a justiciable controversy because Kills on Top has not put
forth any legal rationale to overcome the fact that
Russell was decided nearly ten years after Kills on
Top's 1998 sentence. See, e.g., Gratzer v.
Mahoney, 2006 MT 282, ¶ 14, 334 Mont. 297, 150 P.3d
343 and Fitzgerald v. Mahoney, No. OP 06-0812, 2007
Mont. LEXIS 101, at *2-*3, Order (Jan. 31, 2007) (This Court
denied petitions for habeas corpus relief because the
Apprendi rule is not retroactive on collateral review.).
The State argues, "[f]inality has attached to
Petitioner's conviction and sentence."
merits, the State contends Kills on Top has not demonstrated
a double jeopardy violation because when he was sentenced,
his sentences were facially valid pursuant to both
constitutional and statutory principles of double jeopardy.
The State points to this Court's decision in Kills on
Top I where we held: "the underlying felony in a
deliberate homicide pursuant to [§] 45-5-l02(1)(b), MCA,
is not a lesser included offense of felony murder."
Kills on Top I, 243 Mont, at 92, 793 P.2d at 1297.
The State points to Montana cases where this Court relied on
legislative intent to conclude that merger does not occur
between felony murder and the underlying forcible felony ...