RAYMOND A. HOLMES, Petitioner,
LYNN GUYER, Warden, Montana State Prison, Respondent.
himself, Raymond A. Holmes has filed a petition for a writ of
habeas corpus indicating that the Department of Corrections
(Department or DOC) has calculated his sentence incorrectly
which has extended his parole eligibility and discharge
dates. In compliance with this Court's Order, the Special
Assistant Attorney General for the Department has filed a
response, explaining that remand to the District Court is
required before any further sentence calculation by the DOC
can be made.
February 24, 2016, Holmes was sentenced pursuant to a global
plea agreement entered in the Fourth Judicial District Court,
Mineral County. In DC-1987-546, Holmes admitted to violating
probationary conditions and received a 10-year sentence to
Montana State Prison (MSP). In DC-2015-547, Holmes pleaded
guilty to bail jumping and received a 10-year sentence to
MSP. And. in DC-2015-14, Holmes pleaded guilty to one
misdemeanor count of violating an order of protection (Count
One), for which he received a year, and 15 felony counts of
violating an order of protection, (Counts Two through
Sixteen), for which he received 2 years on each count for a
total of 30 years. All but 10 days of the sentences for
Counts Two through Sixteen were suspended. The 10-year
sentence imposed in DC-1987-546 (probation violation) was to
run concurrently to DC-2015-14 (violation of an order of
protection) and consecutive to DC-2015-547 (bail jumping).
The 10-year sentence in DC-2015-547 for bail jumping was
consecutive to the 30-year, partially suspended sentence
imposed in DC-2015-14 for violations of an order of
District Court agreed with the prosecutor's summation
that the net sentence for all three cases was forty years at
MSP, with all but twenty years and fifty days
PROSECUTOR: And the upshot of that essentially was 40 years,
20 - - all of - - all of that suspended but 20 years, and
then I believe on those ten, I think there are some mihimums
that we had, like 100 days Of - - of - -THE COURT: Yeah. It
said 50 days.
PROSECUTOR: - - unsuspended time.
THE COURT: Twenty years and 50 days - -
PROSECUTOR: Okay. Yes.
Court affirmed Holmes's conviction in State v.
Holmes, Nos. DA 18-0548, 18-0549, and 18-0550, 2019 MT
94N, 2019 Mont. LEXIS 145, and reiterated that" ... as a
net sentence for all three cases, the District Court
sentenced Holmes to forty years at the Montana State Prison
with all but twenty years and fifty days suspended."
maintains that the MSP is not calculating his sentence in
accordance with the District Court's oral pronouncement
of sentence. MSP's sentence calculation arrives at a
total sentence of forty years at MSP, with approximately 10
years suspended, instead of the twenty years suspended orally
imposed by the District Court. MSP is calculating
Holmes's sentence consistent with the written judgments,
which is what authorizes the MSP to detain a prisoner.
Stephens v. Conley, 48 Mont. 352, 13.8 P. 189
(1914). The problem arises from errors in the written
judgment of DC-2015-14. Instead of suspending all but 10 days
on 15 counts (Counts Two through Count Sixteen), the written
judgment suspends the sentence on only five counts - Counts
Twelve through Sixteen. The effect of not having suspended
all 15 counts is that Holmes custodial time was extended 10
years, which affects his parole eligibility and discharge
tried repeatedly to have his sentence conform to that which
was orally, pronounced. In the District Court, Holmes sought
review, however "[i]t is well-established that 'once
a valid judgment and sentence have been signed, the court
imposing that sentence [has] no jurisdiction to vacate or
modify it except as provided by statute.'"
Holmes, ¶ 6 (quoting State v. Hanners,
254 Mont. 524, 526, 839 P.2d 1267, 1268 (1992)). He then
sought habeas corpus relief without adequately explaining his
issues to allow our review. Holmes v. Guyer, No. OP
19-0381, Order denying petition for a writ of habeas corpus
(Mont. Jul. 16, 2019).
sentence is unlawful because the written judgment does not
match the oral pronouncement. Section 46-18-116, MCA.
Moreover, the written judgment has an unlawful effect. The
issue arises of '"whether that portion of the
written judgment substantively increases one of two things:
(1) the defendant's loss of liberty; and (2) the
defendant's sacrifice of property.'"
Holmes, ¶ 6, (citing State v. Johnson,
2000 MT 290, ¶ 24, 302 Mont. 265, 14 P.3d 480). Here,
the portion of the written judgment in Cause No. DC-2015-14
substantively increases Holmes's loss of liberty by
almost a decade in prison.
of habeas corpus is available to inquire into the cause of
restraint to determine whether it is illegal. Section
46-22-101(1), MCA. We conclude that Holmes has demonstrated
that he has an illegal sentence and, thereby, illegal
incarceration. In light of the foregoing, when one portion of
the sentence is illegal, it is better to remand the matter.
State v. Heafner, 2010 MT 87, ¶ 11, 356 Mon.t
128, 231 P.3d 1087. To reach the oral pronouncement of
"40 years MSP, with all suspended but 20 years and 50
days," the District Court will enter an amended judgment
in Cause No. DC-2015-14 to reflect the following:
IT IS FURTHER THE JUDGMENT OF THIS COURT
that on counts SEVEN, EIGHT, NINE, TEN, ELEVEN, TWELVE,
THIRTEEN, FOURTEEN, FIFTEEN AND SIXTEEN, the Defendant is
sentenced to the Montana State Prison for two (2) years on
each count to run consecutively to one another, consecutive
to counts TWO, THREE, FOUR, FIVE and SIX, concurrently with
COUNT ONE and concurrently with the Defendant's Mineral
County cause number DC-1987-546. On counts
TWELVE through SIXTEEN, all but ten (10) days on each count
arc suspended. Count SEVEN through Count SIXTEEN
shall be suspended, but for five (5) days on each count.
IT IS ORDERED that Holmes's Petition for a Writ of Habeas
Corpus is GRANTED in part and his criminal case. Cause No.
DC-2015-14, is REMANDED to the Fourth Judicial District
Court, Mineral County, to issue an amended judgment to