Opinion
OP 23-0197
04-18-2023
DONALD DEAN GRANT, Petitioner, v. JAMES SALMONSEN, Warden, Montana State Prison, Respondent.
ORDER
Self-represented Petitioner Donald Dean Grant has filed a petition for a writ of habeas corpus, pursuant to § 46-22-101(1), MCA. He states that in 2017, the State charged him with two counts of sexual assault, pursuant to § 45-5-502, MCA, in the Lake County District Court for alleged events occurring sometime during 2006 or 2007. On December 20, 2017, the District Court sentenced Grant to the Montana State Prison for a fifteen-year term on Count I. Grant represents that the jury was unable to reach a unanimous verdict on the second count. Grant challenges his conviction, alleging the wrong effective date of the statutes. He maintains that "Grant committed the offense through conduct occurring on or after January 1st, 2006, the offense's effective date." He argues that he should have a misdemeanor, not a felony, conviction and that there should have been instructions to the jury about a lesser-included offense of misdemeanor sexual assault.
Grant's arguments misconstrue Montana law. "This Court has consistently held that a person has the right to be sentenced under the statutes which are in effect at the time of the offense." State v. Crosley, 2009 MT 126, ¶ 58, 350 Mont. 223, 206 P.3d 932 (citing State v. Tracy, 2005 MT 128, ¶ 16, 327 Mont. 220, 113 P.3d 297). The charged offenses occurring in "2006 or 2007," the law at the time of the offense would be the 2005 or 2007 version of Montana Code Annotated. Pursuant to § 45-5-502(3), MCA (2005), "[i]f the victim is less than 16 years old and the offender is 3 or more years older than the victim..., the offender shall be punished by life imprisonment or by imprisonment in the state prison for a term of not less than 4 years. . . or more than 100 years[.]" This provision of the statute remained unchanged in 2007 and also in 2017, when Grant was sentenced. According to Grant's attached copy of the Information. "Victim A was less than 16 years old in 2006 and 2007." Grant was at least fifty years old. Because of the ages of the offender and the victim, Grant is incorrect that the sentence should have been for a misdemeanor only.
Grant is precluded from challenging his conviction through the remedy of habeas corpus because he did not appeal his conviction or sentence in 2017, thereby exhausting the remedy of appeal. Section 46-22-101(2), MCA. A petition for habeas corpus is not available for Grant's arguments concerning the charging documents, specification of offense dates, jury instructions, or a lesser-included offense. On the charge for which he was convicted, the District Court imposed a lawful sentence of fifteen years in prison to run consecutive to any other sentence he was then serving. Section 46-18-401 (4). MCA.
IT IS THEREFORE ORDERED that Grant's Petition for Writ of Habeas Corpus is DENIED and DISMISSED.
The Clerk is directed to provide a copy of this Order to counsel of record and Donald Dean Grant personally.