Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Vernon Kills on Top v. Guyer

Supreme Court of Montana

July 30, 2019

VERNON KILLS ON TOP, Petitioner,
v.
WARDEN LYNN GUYER, Respondent.

          ORDER

         Overview

         Self-represented 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.

         Background

         The 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).

         In 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).[1] 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.

         In his 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.

         In 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.

         In 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

         In his 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's Response

         The 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.

         The 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[2] is not retroactive on collateral review.). The State argues, "[f]inality has attached to Petitioner's conviction and sentence."

         On the 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.