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Friedlander v. Guyer

Supreme Court of Montana

December 31, 2019

ETHAN DUANE FRIEDLANDER, Petitioner,
v.
LYNN GUYER, Warden, Montana State Prison, Respondent.

          ORDER

         In a September 17, 2019 Order, we directed the Attorney General for the State of Montana to file a response to self-represented Ethan Duane Friedlander's Petition for a Writ of Habeas Corpus, addressing whether Friedlander discharged his five-year term prior to the State of Montana filing a petition to revoke in the Missoula County District Court. Friedlander has since filed a Motion to File Addendum to Writ of Habeas Corpus. Counsel for the Attorney General's Office responds that Friedlander's Petition should be denied because he has not demonstrated illegal incarceration.

         The State provides Friedlander's sentencing history for his two convictions from the Fourth Judicial District Court, Missoula County. In October 2009, Friedlander appeared for sentencing of the conviction of felony driving under the influence (DUI), fourth or subsequent offense, in the Missoula County District Court. The court ordered him to serve a thirteen-month term in WATCh[1] with the Department of Corrections (DOC) and after completion, to serve a five-year suspended sentence (hereinafter 2009 DUI). Friedlander completed the WATCh program in May 2010. In November 2011, the State charged Friedlander with another felony DUI (hereinafter 2011 DUI). On December 27, 2012, the court revoked Friedlander's sentence for the 2009 DUI and imposed a five-year suspended sentence (hereinafter 2012 sentence upon revocation). Also, on that day, the court sentenced him for the 2011 DUI to a five-year suspended sentence (hereinafter 2012 sentence) to run consecutively to his 2012 sentence upon revocation.

         In-January 2014, the State filed a petition to revoke Friedlander's 2012 sentence upon revocation because he violated the terms of his probationary conditions by visiting casinos and drinking alcohol. In March 2014, the court revoked his 2012 sentence upon revocation and imposed a five-year DOC sentence with two years suspended (hereinafter 2014 sentence upon revocation). In January 2018, the State filed two more petitions to revoke-one for his 2012 sentence and one for his 2014 sentence upon revocation-because Friedlander committed two additional felony DUI offenses in Lake County. In March 2018, the Missoula County District Court revoked both prior sentences and sentenced Friedlander to a two-year DOC sentence with no suspended time for his 2009 DUI, followed by a consecutive, five-year DOC sentence with no time suspended for his 2011 DUI.

         Friedlander's main argument is that he has not been awarded forty days of credit for time served. This argument does not have merit. We point to his attached Judgment for his 2011 DUI, initially imposed in 2012, where the District Court used Friedlander's credit of forty days toward his fine at $100 per day. Friedlander has not included any proposed sentence calculations or supporting documentation about the DOC's calculation of his sentence to rebut this credit. M. R. App. P. 14(5). Friedlander is not entitled to habeas corpus relief concerning this claim.

         This Court's primary concern was that his sentence is longer than allowed but not for the reasons he advanced. Pursuant to § 46-18-203(2), MCA (2011), "[t]he petition for a revocation must be filed with the sentencing court during the period of suspension or deferral." However, based on the foregoing and the State's response, this supposition is not true.

         The State explains that the sentence for his 2009 DUI has been revoked several times. The State points out that because of his multiple revocations Friedlander had not discharged his five-year suspended sentence for his 2011 DUI. The State explains that he was to serve his two-year DOC sentence imposed in 2018 before serving his five-year suspended sentence. Consequently, the State concludes that any petition to revoke would be timely because it would have been filed before the sentence began. Section 46-18-203(2), MCA.

         Lastly, the State offers that this Court deny Friedlander's Motion because it does not comply with the Montana Rules of Appellate Procedure and because his issues are procedurally barred for review under Montana's habeas corpus statute. M. R. App. P. l4(5)(b)(iii); § 46-22-101(2), MCA. This Court declines to consider Friedlander's Motion.

         Turning to this petition, we agree with the State. Friedlander has not demonstrated a prima facie case for habeas corpus relief. He had the burden of persuading this Court that the writ of habeas corpus should be issued. Miller v. Eleventh Jud. Dist. Ct., 2007 MT 58, ¶ 14, 336 Mont. 207, 154 P.3d 1186. He has failed to do so. Friedlander is not entitled to either a reduction of his sentence or forty additional days of credit for time served. Furthermore, Friedlander cannot seek habeas corpus relief from a sentence upon revocation. Section 46-22-101(2), MCA, provides in part: "The relief under this chapter is not available to attack the legality of an order revoking a suspended or deferred sentence." Accordingly, IT IS ORDERED that Friedlander's Petition for a Writ of Habeas Corpus is DENIED.

         IT IS FURTHER ORDERED that Friedlander's Motion to File Addendum to Writ of Habeas Corpus is DISMISSED, as moot., The Clerk of the Supreme Court is directed to provide a copy of this Order to counsel of record and to Ethan Duane Friedlander personally.

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Notes:

[1] Warm Springs Addiction Treatment and ...


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