Opinion
OP 22-0582
11-29-2022
HERMAN DUANE BELGARDE, JR., Petitioner, v. JIM SALMONSEN, Warden, Montana State Prison, Respondent.
ORDER
The State of Montana has filed a Notice of Concession in response to this Court's Order, requesting a response to Herman Duane Belgarde's Petition for Writ of Habeas Corpus, where he puts forth that his two sentences imposed in the Yellowstone County District Court are facially invalid. Citing to § 46-18-201(3)(a)(iv)(A), MCA, Belgarde contends that his two, ten-year sentences to the Department of Corrections (DOC), "WITH NONE SUSPENDED," are illegal. (Emphasis in original.)
Section 46-18-20l(3)(a)(iv)(A), MCA, provides that "whenever a person has been found guilty of an offense upon a verdict of guilty or a plea of guilty or nolo contendere, a sentencing judge may impose a sentence that may include[] ... [a] commitment [] . . . to the department of corrections with a recommendation for placement in an appropriate correctional facility or program; however, all but the first 5 years of the commitment to the department of corrections must be suspended]. ]"
The State explains that on March 14, 2022, Belgarde appeared for sentencing in four cases in District Court. The State provides, as demonstrated in Belgarde's attached judgments, that the court imposed a ten-year, DOC commitment for felony tampering with the evidence (Cause No. DC-20-1583) as well as a ten-year DOC term for bail jumping (Cause No. DC-22-0108). The court ran all sentences concurrently. The State concedes that these sentences do not comply with § 46-18-201(3)(a)(iv)(A), MCA, because none of the ten-year terms are suspended. The State concludes that the matter should be remanded.
Therefore, having concluded that Belgarde's two sentences are facially invalid, based upon the State's concession, we agree that remand to the District Court is appropriate for correction. State v. Heafner, 2010 MT 87, ¶ 11, 356 Mont. 128, 231 P.3d 1087.
IT IS ORDERED that Belgarde's Petition for Writ of Habeas Corpus is GRANTED in part and Belgarde's underlying matters are REMANDED to the Thirteenth Judicial District Court, Yellowstone County, to amend its April 19, 2022 Judgments, in Cause Nos. DC-20-1583 and DC-22-0108, to comply with Montana law.
IT IS FURTHER ORDERED that this matter is CLOSED as of this Order's date.
The Clerk of the Supreme Court is directed to provide a copy of this Order to: the Honorable Mary Jane Knisely, District Court Judge; Terry Halpin, Clerk of District Court, Yellowstone County, under Cause Nos. DC-20-1583 and DC-22-0108; counsel of record, and Herman Duane Belgarde, Jr. personally.