Opinion
OP 21-0393
10-12-2021
DOMINIC KEITH LEE, Petitioner, v. STATE OF MONTANA, BOB OLSON, Administrator, S.T.A.R.T., Respondent.
ORDER
Dominic Keith Lee requests that this "Court review, reconsider, and reinstate" an August 17, 2021 Order where we denied his petition for habeas corpus relief, stating that Lee violated his conditional release, or probation, and that the 2015 version of Montana statutes applied to his situation. He contends that this Court erred because he is "Not" on probation and that the 2017 version of Montana statutes apply, specifically the Montana Incentives Intervention Guide, or MUG. (Emphasis in original). Lee has also filed an affidavit. On October 1, 2021, Lee filed another "Petition to Review and Reinstate” along with a Motion to Clarify. We deem his pleadings a petition for rehearing, pursuant to M. R. App.P. 20(1).
M.R. App. P. 20(1)(a) provides the three criteria for this Court to "consider a petition for rehearing presented only upon the following grounds:”
(i) That it overlooked some fact material to the decision;
(ii) That it overlooked some question presented by counsel that would have proven decisive to the case; or
(iii) That its decision conflicts with a statute or controlling decision not addressed by the supreme court.M. PL App. P. 20(1)(a)(i)-(iii). Pursuant to M. R. App. P. 20(1)(d), a petitioner must demonstrate extraordinary circumstances when this Court denies a petition for relief
This Court has not erred in its conclusions, and Lee has not demonstrated any of the three criteria to warrant rehearing. He has not demonstrated extraordinary circumstances either. M. R. App. P. 20(1)(d). We point out that because The Board of Pardons and Parole had not granted Lee parole, he was released to probation. See §§ 46-23-1001(3) and (4), MCA (2015) ("'Parole' means the release to the community of a prisoner by the decision of the board prior to the expiration of the prisoner's term . . . ." Probation is "the release by the court without imprisonment, except as otherwise provided by law, of a defendant found guilty of a crime upon verdict or plea, subject to conditions imposed by the court and subject to the supervision of the department upon direction of the court.").
Lee cannot change the material fact that he committed his offense prior to the legislative amendment's effective date. This Court specifically explained that the 2017 version of the Montana statutes did not apply to Lee.
Lee is correct that his felony was reduced to a misdemeanor charge, but he is incorrect that he should be restored to conditional release. The issue is whether the 2017 statutes and its amendments concerning MIIG apply to Lee. We conclude that the 2017 statutes do not apply her, e because the amendments became effective on May 19, 2017. Section 46-23-1015, MCA (2017 Mont. Laws ch. 390, § 13). Lee committed the offense of felony criminal endangerment on April 16, 2017, in Flathead County, before the amendment's effective date. The 2015 versions of §§ 46-23-1012, and 46-23-1015, MCA, apply to him.
Lee violated his condition of probation when he was arrested for a new offense. Section 46-23-1012(1), MCA (2015). Lee is entitled to an "informal probation violation intervention hearing" when his Probation and Parole Officer becomes aware of a new offense. Sections 46-23-1012(3)(b) and 46-23-1015, MCA (2015). A conditional discharge may be revoked if, within the time remaining on the sentence that was conditionally discharged, the individual[] ... is charged with a misdemeanor offense for which the individual could be sentenced to incarceration for a period of more than 6 months [.]" Lee was convicted of two misdemeanors and received a suspended sentence of six months. Lee may be placed in a day reporting program, pursuant to § 46-23-1015(3), MCA. See also § 53-1-203, MCA (2015).Lee v. State, No. OP 21-0393, Order (Mont. Aug. 17, 2021). Lee has not shown that he is entitled to rehearing. We further point out that this Court has no authority over placement of offenders or training for Probation and Parole Officers. Any problems that Lee may have within the facility where he is placed, should be pursued through a written grievance, pursuant to S.T.A.R.T.'s policy, or for any concerns with his Probation and Parole Officer through the grievance policy for the Department of Corrections. Accordingly, IT IS ORDERED that Lee's Petition for Rehearing is DENIED.
The Clerk shall provide a copy of this Order to Bob Olson, Administrator; to counsel of record, and to Dominic Keith Lee personally.