Opinion
OP 23-0580
10-17-2023
WILLIAM COLTER LOWERY, Petitioner, v. MELISSA KELLY (DOC), and Connections Corrections (CCP West/WATCh), Respondents.
ORDER
William Colter Lower}' petitions this Court for habeas corpus relief, arguing that his sentence is subject to the Montana Incentives Intervention Grid (MUG), pursuant to § 46-23-1028, MCA. He contends that his Probation Officer did not use the MUG and that his sentence violates his right to be free from double jeopardy. He states that he "was revoked for having only 1 [d]irty UA in 2.5 years on suspended time." He adds that he "posted bond on the misdemeanor charges that were dropped without prejudice." Lowery requests his immediate release from the Department of Corrections (DOC) and the program Connections Corrections West. Lowery provides no supporting documents.
Available electronic records indicate that Lowery has three, concurrent sentences from two different District Courts. On January 9, 2018, the Powell County District Court imposed a three-year deferred sentence for Lowery's conviction of intimidation. Also, on January 9, 2018, the Anaconda Deer Lodge County District Court sentenced Lowery for criminal possession of dangerous drugs with intent to distribute, imposing a five-year DOC term with two years suspended. Both sentences were to run concurrently. In November 2018, the Powell County District Court revoked his deferred sentence for intimidation for violating several conditions, and the court imposed a ten-year term to the DOC with seven years suspended.
On January 25, 2022, the Powell County District Court convicted Lowery for criminal possession of dangerous drugs. Lowery received a three-year, suspended DOC term to run concurrently with his other sentences.
On June 20,2023, the Powell County District Court revoked both his sentences. For the intimidation sentence, the District Court noted that Lowery's custodial sentence had discharged on September 18, 2021, and that Lowery was arrested on May 5, 2023, following the State's Petition to Revoke. The court stated that, during the evidentiary hearing, Lowery persisted in his denial of the allegations. The court noted that Lowery's Probation Officer testified about Lowery's compliance and noncompliance violations. The court found that Lowery had violated the terms and conditions of his suspended sentence and that Lowery had committed noncompliance violations. The court sentenced Lowery to the DOC for a seven-year term with two years suspended. The court awarded eleven days of jail time credit and 508 days of street time credit.
On the same day, the Powell County District Court also imposed a three-year term with no time suspended for the criminal possession of dangerous drugs conviction. The court awarded eleven days of credit for jail time as well as 450 days of street time credit. All sentences run concurrently.
The MIIG does not apply to Lowery's situation in this instance. Lowery states that his misdemeanor offenses were dismissed. But even when a court dismisses a criminal offense, the conduct may still provide the basis for a noncompliance violation. State v. Howard, 2020 MT 279, ¶ 13, 402 Mont. 54, 475 P.3d 392 ("[C]onduct by the respondent that supports a new criminal charge or offense can also form the basis of the revocation petition, which must be proven by a preponderance of the evidence to establish a violation, but which may be demonstrated even if the criminal charges are dismissed."). '"Compliance violation' means a violation of the conditions of supervision that is not a' new criminal offense." Section 46-23-100 l(3)(a), MCA (emphasis added). See also §46-18-203(1 l)(b)(iv), MCA.
The Powell County District Court found that Lowery had committed noncompliance violations, triggering the revocation of Lowery's prior sentences.
If the judge finds that the offender has violated the terms and conditions of the suspended . . . sentence and the violation is not a compliance violation, the judge may[] . . . revoke the suspension of sentence and require the offender to serve either the sentence imposed or any sentence that could have been imposed that does not include a longer imprisonment or commitment term than the original sentence.
Section 46-18-203 (7)(a)(iii), MCA. This Court has recently stated that the District Court has such authority under this statute to revoke a suspended sentence for a noncompliance violation. "When a probationer has committed a non-compliance violation, § 46-18-203(7)(a)(iii), MCA, grants a judge the authority to 'revoke the suspension of [a] sentence and require the offender to serve . . .'" a sentence that is not any longer. State v. Tippets, 2022 MT 81, ¶ 13, 408 Mont. 249, 509 P.3d 1. Lowery received a seven-year commitment with two years suspended as well as credit for jail time and elapsed time for his intimidation conviction. This is not a longer sentence. Lowery also received a three-year, unsuspended term for the criminal possession of dangerous drugs upon revocation where the court awarded more than a year and a half of credit. The District Court had statutory authority to impose both sentences upon revocation. A sentence upon revocation does not violate double jeopardy. State v. Dewitt, 2006 MT 302, ¶¶ 7-9, 334 Mont. 474, 149 P.3d 549. "
Lowery is not entitled to his other requests. Lowery is not entitled to his immediate release from DOC or from his present placement. He is not entitled to lost wages. "There is no absolute standard for what constitutes due process. Rather, the requirements of due process are flexible, so that they may be adapted to meet the procedural protections demanded by a particular situation." McDermott v. McDonald, 2001 MT 89, ¶ 10, 305 Mont. 166, 24 P.3d 200 (citation omitted). Lowery has not demonstrated that his due process rights have been violated. .
Lowery has not demonstrated illegal incarceration or an illegal sentence. Section 46-22-101(1), MCA. He is further constrained here because he cannot challenge a sentence upon revocation through this remedy of habeas corpus. Section 46-22-101(2), MCA. Because of Lowery's noncompliance violations, the Powell County District Court imposed valid sentences, by revoking his suspended sentences. Section 46-18-203(7)(a)(iii), MCA. Therefore, IT IS ORDERED that Lowery's Petition for Writ of Habeas Corpus is DENIED and DISMISSED.
The Clerk of the Supreme Court is directed to provide a copy of this Order to: Melissa Kelly, Program Administrator, mkelly @cccscorp.com, CCP West; counsel of record, and William Colter Lowery personally.