Opinion
OP 21-0628
01-25-2022
CONOR LARKIN McLEAN, Petitioner, v. JIM SALMONSEN, Warden. Montana State Prison, Respondent.
ORDER
Representing himself, Conor Larkin McLean has filed a Petition for Writ of Habeas Corpus, contending that his incarceration is illegal because he has no suspended time on his sentence, pursuant to § 46-18-20 l(3)(a)(iv)(A), MCA. In compliance with this Court's December 15, 2021 Order, the State of Montana, after consulting with the Flathead County Attorney, concedes that this matter should be remanded for resentencing.
The State provides more details about McLean's criminal history, which we summarize here. McLean has two criminal cases in the Flathead County District Court. The State charged McLean with five felonies and two misdemeanors in 2019 (hereinafter first case). While that matter was pending, the State charged McLean with felony criminal endangerment and misdemeanor resisting arrest (hereinafter second case). The District Court held a change of plea hearing in October 2020, and McLean entered guilty pleas to felony robbery, felony assault with a weapon, felony theft, and misdemeanor criminal mischief in his first case. For his second case, McLean pleaded guilty to felony criminal endangerment. On November 25, 2020, the District Court committed McLean to the Department of Corrections (DOC) to a term of eight years with no time suspended for felony robber)' and felony assault with a weapon. McLean also received a three-year, suspended term to the DOC for felony theft. In his second case, the court committed McLean to the DOC for felony criminal endangerment for an eight-year term with no time suspended. All sentences run concurrently. The court awarded credit for time served. McLean did not appeal.
We mention the misdemeanor offenses, but the 180-day term is not at issue here. Both cases were resolved in a combined Judgment and Sentence.
The State provides that, pursuant to § 46-18-20l(3)(a)(iv)(A), MCA, an adult offender upon a DOC commitment, receives a sentence with "all but the first 5 years of the commitment to the department of corrections . . . suspended." The State puts forth that no time was suspended on McLean's eight-year commitments, which is contrary to the sentencing statute. The State concludes that remand for resentencing is appropriate to correct the sentence's illegal portion that affects the entire sentence. See Steilman v. Michael, 2017 MT 310, ¶ 10, 389 Mont. 512, 407 P.3d 313.
We find the State's conclusion dispositive. McLean has demonstrated facially invalid sentences, pursuant to § 46-22-101(1), MCA. Accordingly, IT IS ORDERED that McLean's Petition for Writ of Habeas Corpus is GRANTED and this matter is REMANDED to the Eleventh Judicial District Court, Flathead County, to resentence McLean in accordance with the Montana sentencing statute.
The Clerk is directed to provide a copy of this Order to the Honorable Amy Eddy, Eleventh Judieial District Court, Flathead County; to Peg L. Allison, Clerk of District Court, Flathead County, under Cause Nos. DC-19-209(A) and DC-20-338(A); to counsel of record, and to Conor Larkin McLean personally.