Submitted on Briefs: July 24, 2019
FROM: District Court of the Thirteenth Judicial District, In
and For the County of Yellowstone, Cause No. DC 14-0614
Honorable Blair Jones, Presiding Judge
Appellant: Lionel Scott Ellison, Self-represented, Deer
Appellee: Timothy C. Fox, Montana Attorney General, C. Mark
Fowler, Assistant Attorney General, Helena, Montana Scott D.
Twito, Yellowstone County Attorney, Julie Elaine Mees, Deputy
County Attorney, Billings, Montana
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
Internal Operating Rules, this case is decided by memorandum
opinion and shall not be cited and does not serve as
precedent. Its case title, cause number, and disposition
shall be included in this Court's quarterly list of
noncitable cases published in the Pacific Reporter and
Appellant Lionel Scott Ellison (Ellison) appeals the judgment
entered by the Thirteenth Judicial District Court,
Yellowstone County, following this Court's remand for
In September 2015, Ellison was found guilty by a jury of two
felony counts of tampering with or fabricating physical
evidence and one felony count of impersonating a public
servant. Ellison appealed, and this Court vacated
Ellison's conviction of one count of tampering with or
fabricating physical evidence, while affirming Ellison's
convictions of the other counts, and remanded the case to the
Thirteenth Judicial District Court, Yellowstone County, for
re-sentencing. State v. Ellison, 2018 MT 252, ¶
29, 393 Mont. 90, 428 P.3d 826.
In December 2018, upon remand, the District Court sentenced
Ellison to ten years imprisonment for the tampering
conviction and five years imprisonment for the impersonation
conviction, with no time suspended. Judgment was entered on
December 14, 2018. Ellison timely appealed and raises
multiple issues in challenge to his new sentence, but also to
his underlying convictions, which we address in
This Court reviews criminal sentences that include at least
one year of incarceration for legality only, meaning "we
will not review a sentence for mere inequity or
disparity." State v. Webb, 2005 MT 5, ¶ 8,
325 Mont. 317, 106 P.3d 521. Rather, we determine if the
sentence is authorized by statute. State v. Ariegwe,
2007 MT 204, ¶ 174, 338 Mont. 442, 167 P.3d 815. A
district court's application of the sentencing statutes
is a question of law that we review de novo.
Ariegwe, ¶ 175. We may review a criminal
sentence that is alleged to be facially illegal or in excess
of statutory mandates even if those issues were not preserved
for appeal. State v. Lenihan, 184 Mont. 338, 343,
602 P.2d 997, 1000 (1979); State v. Kotwicki, 2007
MT 17, ¶ 8, 335 Mont. 334, 151 P.3d 892.
Ellison challenges his sentence by arguing that "Judge
Blair Jones was bias[ed] and prejudice[d]" against him,
asserting that he and Judge Jones "had a previous bad
business relationship" involving two houses that Ellison
and his father constructed, which he claims were financed, at
least in part, by Judge Jones. In open court, Judge Jones
denied having a prior business relationship with Ellison.
Due process "requires recusal when 'the probability
of actual bias on the part of the judge or decisionmaker is
too high to be constitutionally tolerable.'"
Reichert v. State, 2012 MT 111, ¶ 28, 365 Mont.
92, 278 P.3d 455 (quoting Caperton v. A. T. Massey Coal
Co., 556 U.S. 868, 872, 129 S.Ct. 2252, 2257 (2009)).
When faced with a claim of judicial bias, our inquiry is an
objective one-that is, we must determine "not whether
the judge is actually biased, but whether the average judge
in his position is likely to be neutral or [whether] there is
an unconstitutional 'potential for bias.'"
Caperton, 556 U.S. at 869, 129 S.Ct. at 2255.
"There is 'a presumption of honesty and integrity in
those serving as adjudicators.'" Reichert,
¶ 39 (quoting Withrow v. Larkin, 421 U.S. 35,
47, 95 S.Ct. 1456, 1464 (1975)). As such, "'charges
of disqualification should not be made lightly.'"
Reichert, ¶ 39 (quoting Aetna Life Ins. Co.
v. Lavoie, 475 U.S. 813, 826-27, 106 S.Ct. 1580, 1588
(1986)). "Absent evidence to the contrary, the
'presumption of honesty and integrity in those serving as
adjudicators' stands." Reichert, ¶ 50
(quoting Withrow, 421 U.S. at 47, 95 S.Ct. at 1464)
(holding that no judicial bias existed where the appellant
failed to provide "actual evidence of bias, prejudice,
or unethical conduct" on the part of the accused
adjudicators); see also Ortiz v. Stewart, 149 F.3d
923, 938 (9th Cir. 1998) ("[W]e abide by the general
presumption that judges are unbiased and honest.");
cf. In re George Tr., 253 Mont. 341, 346, 834 P.2d
1378, 1382 (1992) ("any relief provided by the court
must be based on evidence presented before the court.").
Ellison's bias claims are based on conjecture, and he has
not provided evidence substantiating bias on the part of the
District Court. We cannot conclude Ellison has carried his
burden of demonstrating "actual evidence of bias,
prejudice, or unethical conduct" on the part of Judge
Jones. Reichert, ¶ 50. Although Ellison also
complains the District Court erred by not allowing him to
submit documents and exhibits demonstrating Judge Jones'
bias, the asserted evidence was based on Ellison's
postconviction relief (PCR) petition and accompanying
exhibits, which are not within the scope of his current
appeal. Ellison initiated a PCR proceeding in Yellowstone
County on October 25, ...