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Vernon Kills on Top v. Guyer

Supreme Court of Montana

October 8, 2019



         The State of Montana has filed a petition for a rehearing of the Court's July 31, 2019 Order that vacated Vernon Kills on Top's conviction for aggravated kidnapping, and associated life without parole sentence, without remanding the matter for resentencing. Kills on Top v. Guyer, No. OP 18-0656, 2019 Mont. LEXIS 292, Order, at *13 (Mont. Jul. 31, 2019). Kills on Top has filed a response in opposition to the State's petition.

         The Court's Order granted habeas relief and remanded the matter to the Sixteenth Judicial District, Custer County, to strike the life without parole sentence for aggravated kidnapping, which was the predicate offense for Kills on Top's conviction of deliberate homicide pursuant to the felony murder rule, in light of State v. Russell, 2008 MT 417, 347 Mont. 301, 198 P.3d 271. The State does not seek rehearing of the Court's determination that the aggravated kidnapping conviction and sentence must be vacated, but only of the Court's decision not to remand the matter for resentencing.

         The State argues "this Court's decision not to remand this matter for resentencing .... was founded on a mistake of fact that, in turn, undermines the integrity of Kills on Top's sentence as a whole." The State contends that the Custer County District Court, when re-sentencing Kills on Top in 1998, after our decision in Kills on Top v. State, 279 Mont. 384, 928 P.2d 183, had struck the death penalty, clearly intended that Kills on Top would be ineligible for parole for the entirety of his sentence. The State argues this Court's vacating of the life without parole sentence for aggravated kidnapping has "fundamentally altered" Kills on Top's sentence, requiring re-sentencing. The State cites cases that were remanded for resentencing, and distinguishes the effect of our Order upon Kills on Top's sentence from the minor effect upon the sentence at issue in State v. Heafner, 2010 MT 87, 356 Mont. 128, 231 P.3d 1087, which the Court cited in declining to order resentencing here. The State contends the Court made two mistakes of fact, the first related to the length of Kills on Top's remaining sentence, including a statement that it would be "many years" before Kills on Top would be eligible for parole, and, second, the Court's observation that re-sentencing "would no doubt imposed a hardship on all concerned." In response to these, the State has attached to its petition a sentence calculation that indicates, under the Court's order, Kills on Top's parole eligibility date is now March 31, 2015, and further clarifies that, to the contrary, "resentencing proceedings would not impose a hardship on either the State or the victim's family." (Emphasis in original).

         Kills on Top responds, first, that the State did not request resentencing in its initial response to his petition for habeas corpus relief and, consequently, has waived such a request, and cannot raise it now, citing case precedent: "[I]t is the settled rule that this court will not, on an application for rehearing, consider grounds for reversal not presented upon the original hearing." Mares v. Mares, 60 Mont. 36, 55, 199 P. 267, 272 (1921) (citing Merchants' Nat7 Bank v. Greenhood, 16 Mont. 395, 460, 41 P. 250, 851(1895); Forrester v. Boston & Mont. Consol. Copper & Silver Mining Co., 21 Mont. 544, 565, 55 P. 353 (1898); Kaufman v. Cooper, 38Mont. l6, 98Pac. 504, 1135; In re Murphy's Estate, 57 Mont. 273, 286, 188 P. 146 (1920).).

         Second, Kills on Top contends that resentencing is unnecessary based merely on any factual misstatement about his parole eligibility date. He explains that the Court's Order correctly noted that he has served over thirty-one years in prison, he is over 60 years of age, and his "release on parole is not guaranteed," and argues that none of these factors are dependent upon his parole eligibility date, adding, "[t]hat this Court was apparently mistaken about how soon I would be eligible for parole does not sufficiently undermine its opinion to warrant rehearing under the stringent standard set out in Rule 20." He contends that the State has not "clearly demonstrated exceptional circumstance" under M. R. App. P. 20(1)(d) necessary for rehearing.

         Lastly, on the merits of resentencing, Kills on Top cites to State v. Olivares-Coster, 2011 MT 196, ¶ 20, 361 Mont. 380, 259 P.3d 760 (2011), where this Court found a sixty-year parole restriction to be illegal, determined the restriction must be stricken under Heafner, and declined to remand for resentencing. Olivares-Coster, ¶ 17. Kills on Top also points out that, when the District Court was sentencing him in 1998, it was reluctant to impose a parole eligibility restriction on his homicide conviction, because "Vernon Kills on Top was not present when John Etchemendy was killed, did not inflict the injuries which caused his death, and because there was no reliable evidence that he intended his death-but instead evidence that he sought to avoid it[.]" Kills on Top, 279 Mont, at 423-24, 928 P.2d at 207.

         The State acknowledges that it did not originally request resentencing in its response to Kills on Top's habeas petition. Neither did the State offer a calculation or specific assessment of the impact upon Kills on Top's sentence if the Court were to grant the relief that Kills on Top specifically requested-that "my additional conviction and sentence of life without the possibility of parole based on the [] aggravating kidnapping" was invalid, and that he was entitled to "[r]eduction of my sentence to life with the possibility of parole." Instead, the State's response argued that the Court could not grant effective relief because, even if Kills on Top's arguments were correct, the proper remedy would be to vacate his homicide conviction and allow his longer sentence for aggravated kidnapping to stand, based upon State v. Peterson, 227 Mont. 511, 744 P.2d 870 (1987). However, the State's argument was contrary to the holding in Russell ("Russell's conviction of felony homicide precludes a conviction on the aggravated assault charge," Russell, ¶ 25), which Kills on Top argued, and the State offered no further, alternative argument for the possibility this Court would find Russell to be controlling over Peterson.

         While our Order stated that Kills on Top had "many years to serve before he would become eligible for parole consideration," we added that he "may be eligible for good time credit toward his sentence," and thus noted that upon a further calculation of his sentence- which had not been provided to the Court-Kills on Top could be parole eligible at an earlier time. In any event, this statement was an observation, not part of the legal analysis concluding that Kills on Top was entitled to relief. Similarly, our statement that resentencing "would no doubt impose a hardship on all concerned," was likewise a general observation, without any record support, about prolonging the process for all parties. Beyond that, a resentencing could spawn further appeals and the reopening of legal issues that have already been extensively dealt with by this Court. 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 v. State, 279 Mont. 384, 401-24, 928 P.2d 182, 193- 207 (1996); Kills on Top v. State, 2000 MT 340, ¶¶ 1, 74-5, 303 Mont. 164, 15 P.3d 422. "When a portion of the sentence is illegal and cannot be corrected, we remand with instructions to strike the illegal provision." State v. Lehrkamp, 2017 MT 203, P 37, 388 Mont. 295, 400 P.3d 697 (citing State v. Heafner, 2010 MT 87, P 11, 356 Mont. 128, 231 P.3d 1087.).

         We conclude the State has not presented extraordinary circumstances under M. R. App. P. 20(1)(d), and that rehearing is not warranted. The observations made by the Court, explained above, were not material facts on which the decision was based. Kills on Top argues correctly that the State's request for resentencing is not properly raised for the first time on rehearing.

         A petition for rehearing is considered by those justices hearing the case in the first instance and, "[w]hether decided by a five judge panel or en banc," four members of the Court must decide in favor of granting rehearing for it to be granted. Section IV, Paragraph 2, Supreme Court Internal Operating Rules. Accordingly, because there is not requisite support for rehearing pursuant to Rules, IT IS ORDERED that the State's Petition for Rehearing is DENIED and DISMISSED.

         The Clerk of the Supreme Court is directed to provide a copy of this Order to the Honorable Michael B. Hayworth and Honorable Nickolas Murnion, Sixteenth Judicial District Court, Custer County; to Hazel Parker, Clerk of District Court, Custer County, under Cause No. 3221; to counsel of record, and to Vernon Kills on Top personally.

          Justice Baker, dissenting.

         I would grant the State's rehearing request and remand for re-sentencing. The State points out that in its order granting habeas corpus, this Court assumed certain circumstances regarding the remaining time on Kills On Top's sentence that proved incorrect. The Court's Order denies rehearing because the State did not point out these facts in its initial response. The State argued, though, that resentencing was unnecessary because the District Court imposed a life without parole sentence on the aggravated kidnapping sentence, that sentence "exceeded" Kills On Top's life sentence for felony murder, and the Court could leave the District Court's intended sentence undisturbed by vacating the felony murder sentence and leaving the aggravated kidnapping sentence intact.

         This Court ordered a response to the petition pursuant to M. R. App. 14 (7). We did not order more extensive briefing. A response submitted under that rule is limited to 4, 000 words and is to "summarize the arguments and authorities for rejecting jurisdiction." The State had a legitimate basis for its argument that a valid remedy for improper cumulative sentences was to affirm the greater sentence. It is reasonable that within the limits of ...

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