Opinion
OP 24-0283
07-23-2024
JOSEPH S. CLARK, Petitioner, v. JAMES SALMONSEN, Respondent.
ORDER
Through counsel, Joseph Clark has filed a Petition for Writ of Habeas Corpus, alleging duplicitous convictions in 1994 and facially invalid sentences from the Twentieth Judicial District Court, Lake County. The State of Montana responds in opposition.
Both Clark and the State provide the sentencing history that we summarize here. The State charged Clark on December 21, 1993, with two counts of deliberate homicide, pursuant to § 45-5-102(1)(a), MCA (1993), and one count of aggravated burglary, pursuant to § 45-6-204(2)(a), MCA (1993). The Information read as follows for the counts:
COUNT I
On or about August 12,1993, in Ferndale, Lake County, Montana, the above-named Defendant purposely or knowingly caused the death of John Bosco by shooting him dead.
COUNT II
On or about August 12, 1993, in Ferndale, Lake County, Montana, the above-named Defendant purposely or knowingly caused the death of Nancy Bosco by shooting her dead.
COUNT III
On or about August 12,1993, in Ferndale, Lake County, Montana, the above-named Defendant knowingly entered the John and Nancy Bosco residence with the purpose to commit the offense of homicide and in the course of committing the offense was armed with a pistol.
The State and Clark entered into a plea agreement on June 27, 1994, where Clark agreed to enter guilty pleas to all counts in exchange for the State to forego recommendations of death or life imprisonment as well as not to seek additional charges from the home invasion. The State recommended sentences for the counts as well as a parole ineligibility restriction, and Clark agreed to all that the State put forth in the agreement. At the change-of-plea hearing, the District Court pointed out that the plea agreement lacked any consideration of a weapon enhancement, pursuant to § 46-18-221, MCA. The court then advised counsel and Clark that it would accept the agreement if an additional ten years were added to the first two counts. Both parties accepted the condition. The next month, on July 27, 1994, the court sentenced Clark according to the plea agreement. Clark received a one-hundred-year, prison sentence for each of the deliberate homicide convictions to run consecutively along with consecutive, ten-year terms for the weapon enhancement. He also received a concurrent, forty-year prison term for the aggravated burglary conviction, totaling a 220-year sentence. The court also imposed a parole ineligibility restriction until Clark reaches sixty years of age, as stated in the plea agreement. Clark did not appeal.
Clark contends that the punishments for the deliberate homicide counts should be prohibited because of the aggravated burglary conviction which contains elements of deliberate homicide. Citing to § 45-6-204, MCA, Clark argues that because of how the State charged Clark with aggravated burglary using the homicides and use of a weapon in the charging document's language, thereby aggravating and supporting the burglary charge. Clark relies on Montana case law to advance the arguments that his convictions violate double jeopardy. See State v. Russell, 2008 MT 417, ¶¶ 26-27, 347 Mont. 301, 198 P.3d 271; Kills on Top v. Guyer, No. OP 18-0656, Order, at *10-* 12, 2019 Mont. LEXIS 292 (Jul. 30, 2019); and Deines v. Guyer, No. OP 20-0325, Order, at *2-*3, 2021 Mont. LEXIS 137 (Feb. 9, 2021). Relying on Whitehorn, he points out that this Court has recognized the value of double jeopardy protection as applied to multiple punishments, which "brings into question the fundamental fairness of the proceedings and the integrity of the judicial process." State v. Whitehorn, 2002 MT 54, ¶ 39, 309 Mont. 63, 50 P.3d 121. Clark now requests that his homicide convictions be vacated along with the weapon enhancement designation as in other cases. See State v. Tellegen, 2013 MT 337, ¶ 27, 372 Mont. 455, 314 P.3d 902 and State v. Guillaume, 1999 MT 29, ¶ 25, 293 Mont. 224, 975 P.2d 312. Clark also puts forth that, under § 46-18-404, MCA (1993), the court did not have statutory authority to impose the parole ineligibility restriction.
The State provides that Clark's arguments are misguided and that he is not entitled to habeas corpus relief. The State puts forth that Clark has advanced the incorrect version of the burglary statute in his argument and distinguishes the 1993 version of the statute. Section 45-6-204, MCA (1993), defining aggravated burglary, states:
(2) A person commits the offense of aggravated burglary if he knowingly enters or remains unlawfully in an occupied structure with the purpose to commit an offense therein and:
(a) in effecting entry or in the course of committing the offense or in immediate flight thereafter, he or another participant in the offense is armed with explosives or a weapon; or
(b) in effecting entry or in the course of committing the offense or in immediate flight thereafter, he purposely, knowingly, or negligently inflicts or attempts to inflict bodily injury upon anyone.
The State points out that, to discern the elements of an offense, one must look at the statutory scheme and not the Information, or charging document. State v. Williams, 2010 MT 58, ¶ 21, 355 Mont. 354, 228 P.3d 1127. Under the existing burglary statute at the time of Clark's offenses, the State argues that the State had no ability to charge anything as a predicate, or lesser included, offense. The State contends that Clark has not argued elements of Montana statutes and that the State only had to prove that Clark had the purpose to commit an offense to reach a conviction. The State opines that, pursuant to § 45-6-204(2)(a) and -204(2)(b), MCA (1993), Clark entered the home of John and Nancy Bosco armed with a weapon and knowingly killed the people. The State concludes that the 1993 version of the burglary statute undercuts Clark's argument about double jeopardy violations because there is no predicate offense; therefore, the State adds that it had authority to charge Clark with deliberate homicide and burglary. The State further concludes that Clark's reliance on other case law is unavailing here. But cf. Russell, ¶¶ 26-27; Kills on Top, *11-*12; and Deines, *2-*3.
When Clark entered the plea agreement in 1994, the State highlights that Clark waived any non-jurisdictional defect by pleading guilty to the two counts of deliberate homicide. See State v. Watts, 2016 MT 331, 386 Mont. 8, 385 P.3d 960 (a voluntary guilty plea constitutes waiver of all non-jurisdictional defects and defenses). The State rebuts Clark's reframing of this issue as a jurisdictional defect because of the alleged double jeopardy violation. The State puts forth that under the record and Montana's statutes, the State possessed the power to charge Clark with aggravated burglary and two deliberate homicide counts. Pointing to Tellegen, the State posits that this authority allowed the State to charge Clark with the three offenses and that deliberate homicide was not a predicate offense of aggravated burglary in 1993. Tellegen, ¶ 25.
Turning to Clark's arguments about the invalidity of a parole ineligibility restriction, the State points to the applicable statutes for this restriction. The State provides that the District Court had statutory authority under § 46-18-202(2), MCA (1993), to "also impose the restriction that the defendant be ineligible for parole and participation in the supervised release program while serving that term." The State notes that § 46-23-201, MCA (1993), the statute for considering parole timing and eligibility, specifically refers to "persons serving sentences imposed under 46-18-202(2)," MCA, and that the Board of Pardons and Parole must find that release of the prisoner is without detriment to the prisoner or the community.
This Court observes that the Lake County District Court included the reasons for the parole ineligibility restriction, as required by § 46-18-202(2), MCA (1993), in the written judgment. The court imposed the additional restriction, stating: "The reasons for . such restriction are that the Defendant violated the sanctity of the victims' home at night while they were sleeping and without any apparent motive shot two totally innocent persons, John and Nancy Bosco, to death."
Clark appears to challenge his convictions along with his sentences. "Montana's long[-]standing jurisprudence holds that 'where a defendant voluntarily, and knowingly pleads guilty to an offense, the plea constitutes a waiver of all non-jurisdictional defects and defenses, including claims of constitutional rights violations which occurred prior to the plea.'" Watts, ¶ 9 (citing State v. Lindsey, 2011 MT 46, ¶ 19, 359 Mont. 362, 249 P.3d 491; State v. Pavey, 2010 MT 104, ¶ 11, 356 Mont. 248, 231 P.3d 1104; State v. Kelsch, 2008 MT 339, ¶ 8, 346 Mont. 260, 194 P.3d 670; State v. Rytky, 2006 MT 134, ¶ 7, 332 Mont. 364, 137 P.3d 530; State v. Gordon, 1999 MT 169, ¶ 23, 295 Mont. 183, 983 P.2d 377; State v. Turcotte, 164 Mont. 426, 524 P.2d 787 (1974)). Clark has received the benefit of the bargain three decades ago when he agreed to all counts as well as the parole ineligibility restriction without receiving a life imprisonment term or death sentence. Clark brings his claims too late and through the wrong remedy to this Court.
We find the State's arguments dispositive of this Petition. We conclude that Clark has not demonstrated a facially invalid sentence. Section 46-22-101(1), MCA. He has not demonstrated illegal incarceration. Clark is time-barred and barred procedurally to challenge his 1994 convictions and sentences through this remedy when he has exhausted the remedy of appeal by not appealing. Section 46-22-101(2), MCA. Therefore, IT IS ORDERED that Clark's Petition for Writ of Habeas Corpus are DENIED and DISMISSED.
The Clerk is directed to provide a copy of this Order to counsel of record.