Opinion
OP 24-0267
05-21-2024
BRIAN PARKER, Petitioner, v. RICK BARMAN, Administrator, NEXUS Treatment Center, Respondent.
ORDER
Self-represented Petitioner Brian Parker has filed a Petition for Writ of Habeas Corpus, indicating that his incarceration is illegal, and seeking to be resentenced. He provides that he "only [has] one DWI in Montana" but that he "was charged with a felony 4th based on previous DWI convictions in Minnesota." Parker states that two of his earlier convictions-January 26, 2010 and August 7, 1995-would have "fallen off[,]" because under Minnesota law, "they fall off after 10 years." He believes that he was illegally sentenced in Richland County, and thus, he seeks resentencing to a misdemeanor. Parker, is currently placed in the NEXUS Treatment Center.
We secured copies of available electronic documents. On December 14, 2020, in open court, the Seventh Judicial District Court, Richland County, accepted Parker's guilty plea to aggravated driving under the influence or being in actual physical control of a vehicle under the influence of alcohol (DUI) and committed him to the Department of Corrections (DOC) for a suspended, five-year term. The court also ordered that Parker enroll and complete the Adult DUI Treatment Court.
Parker's challenge comes too late. The time to object to his DUI conviction was in 2020. Parker should have raised the argument about his prior Minnesota convictions in the District Court. Parker also did not appeal his conviction and sentence to this Court, where he could have raised such arguments preserved for appeal. Parker is precluded from challenging his conviction through a writ of habeas corpus. Section 46-22-101(2), MCA.
Moreover, the District Court has since revoked Parker's suspended sentence. Parker admitted to the violations in the Petition to Revoke in early November 2023. On December 4, 2023, the District,Court revoked the 2020 sentence and committed Parker to DOC for an unsuspended, five-year term, recommending placement in NEXUS followed by prerelease. The court awarded 63 days of credit for time served and 567 days of street time credit.
Parker cannot challenge his sentence upon revocation through this remedy. Section 46-22-101(2), MCA. He has not demonstrated illegal incarceration, and he is not entitled to resentencing to a misdemeanor. Therefore, IT IS ORDERED that Parker's Petition for Writ of Habeas Corpus is DENIED and DISMISSED.
IT IS FURTHER ORDERED that this case is CLOSED as of this Order's date.
The Clerk is directed to provide a copy of this Order to counsel of record; to Rick Barman, NEXUS, rbarman@cccscorp.com; and to Brian Parker personally.