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Frey v. Hash

Supreme Court of Montana
Jul 9, 2024
OP 24-0385 (Mont. Jul. 9, 2024)

Opinion

OP 24-0385

07-09-2024

GERALD FREY, Petitioner, v. CAPTAIN HASH, Missoula County Detention Center, Respondent.


ORDER

Gerald Frey has filed a Petition for Writ of Habeas Corpus, indicating illegal incarceration, claiming that his attorney promised him a sentence of five years, all time suspended, to the Department of Corrections (DOC).

Frey points to § 61-8-1008(2), MCA, which provides the punishment or penalty for driving under the influence, fourth or subsequent offense. He provides that "[a] person convicted of a violation of driving under the influence, including 61-8-1002(1)(a), (1)(b), (1)(c), or (1)(d), an offense that meets the definition of aggravated driving under the influence in 61-8-1001, . . . [then] the person shall be punished by a fine of not less than $5,000 or more than $10,000, and by imprisonment in the state prison for a term of not more than 10 years." Section 61-8-1008(2), MCA. Frey contends that he would have never entered a plea of guilty if his counsel had correctly interpreted the law and not presented a "false promise" .... He cites to the Brady standard in making a voluntary plea.

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963).

We secured copies of Frey's recent judgments. On April 30, 2024, the Missoula County District Court issued a Judgment upon Frey's conviction of felony driving under the influence, fifth offense, sentencing Frey to the DOC for a five-year term. Additionally on that day, the District Court sentenced Frey to concurrent, five-year terms for two counts of criminal possession of dangerous drugs. Both sentences run concurrently with each other.

Frey is correct that his DOC terms are not suspended. However, Frey's challenges go to his conviction-not his sentence-because he challenges his entry of a guilty plea. His remedy is not with this Court through this writ of habeas corpus. Section 46-22-101(1), MCA. His issues are more appropriately raised in an appeal. Frey's remedy would be to seek an appeal by filing a petition for an out-of-time appeal with this Court. M. R. App. P. 4(6). .

Frey has not demonstrated illegal incarceration. Section 46-22-101(1), MCA. Therefore, IT IS ORDERED that Frey's Petition for Writ of Habeas Corpus is DENIED and DISMISSED.

IT IS FURTHER ORDERED that this matter is CLOSED as of this Order's date.

The Clerk is directed to provide a copy of this Order to: counsel of record and Gerald Frey along with a copy of this Court's Appellate Handbook.


Summaries of

Frey v. Hash

Supreme Court of Montana
Jul 9, 2024
OP 24-0385 (Mont. Jul. 9, 2024)
Case details for

Frey v. Hash

Case Details

Full title:GERALD FREY, Petitioner, v. CAPTAIN HASH, Missoula County Detention…

Court:Supreme Court of Montana

Date published: Jul 9, 2024

Citations

OP 24-0385 (Mont. Jul. 9, 2024)