Opinion
OP 23-0492
10-03-2023
EUGENE EDWIN SHERBONDY, Petitioner, v. JAMES SALMONSEN, Warden, Montana State Prison, Respondent.
ORDER
Representing himself. Eugene Edwin Sherbondy has filed a petition for a writ of habeas corpus, under § 46-22-101, MCA. and claims that he has an illegal and facially invalid sentence for felony trafficking of persons, pursuant to § 45-5-702(2)(b)(i), MCA (2017). He includes copies of the statute and an August 9. 2021 letter from his former counsel.
In December 2018, the State of Montana charged Sherbondy with felony trafficking of persons, felony sexual intercourse without consent, and felony sexual abuse of children in the Cascade County District Court. On September 25, 2020, the District Court held a sentencing hearing and noted that Sherbondy waived his right to an in-person hearing. Counsel for the State "advised the [c]ourt that, pursuant to the Plea Agreement. [Sherbondy] will be subject under the 2017 statute § 45-5-702, MCA." The court sentenced Sherbondy to the Montana State Prison for a forty-year term with twenty-five years suspended, and "with proper medical placement." The court dismissed the other felonies and awarded 660 days credit for time served. Sherbondy did not appeal.
Sherbondy's only appeal was for the termination of his parental rights to his minor children. See In the Matter of J.C.S. and J.C.S., No. DA 20-0015, 2020 MT 203N, 2020 Mont. LEXIS 2188 (Aug. 11, 2020).
Sherbondy now argues that the District Court did not have statutory authority to sentence him. He points out that the crimes, as mentioned in the Information, occurred between January 1, 2009 and December 31, 2011, and that § 45-5-702, MCA, trafficking of persons did not exist as a Montana statute during those years. He contends that the "[S]tate used an unconstitutional retroactive application of an ex post facto law to increase the possible maximum sentence from 15 years to 50 years[.]" He concludes that because this statute "did not exist at the time of the alleged offense," his sentence is facially invalid.
We secured a copy of the register of actions, amended information, and plea agreement. The Amended information, filed February 1, 2019, included alleged offenses committed between January 1, 2009 and December 31, 2011, as well as January 2002 through December 2018. The State also charged Sherbondy with aggravated promotion of prostitution. The plea agreement, pursuant to § 46-12-211 (1)(b), MCA, listed a total of six charges. The plea agreement specifically stated that "[t]he Defendant agrees he is subject to sentencing under the 2017 M.C.A. § [] 45-5-702."
Sherbondy has not demonstrated a facially invalid or illegal sentence. Section 46-22-101(1), MCA. The charging document listed offenses committed up to the time of his arrest in December 2018. Sherbondy also agreed to be sentenced under § 45-5-702, MCA (2017). Sherbondy's former counsel has explained to him that he received the benefit of the bargain by pleading nolo contendere to one offense. In the August 9, 2021 letter to Sherbondy, his former counsel advises:
Please recall you were charged with six (6) felonies, including rape, sexual abuse, and prostitution of minors. The "deal" I got you was the State dismissed five (5) of those charges and you only pled No Contest to one count of Trafficking of persons.We further point out that at least three of Sherbondy's charged offenses carry a maximum punishment of life in prison. See § 45-5-503(2), MCA (sexual intercourse without consent); § 45-5-625(2), MCA (sexual abuse of children), and § 45-5-603(2), MCA (aggravated promotion of prostitution).
By entering into a plea agreement, Sherbondy has waived any defect with his sentence. "We have said that 'a defendant waives the right to appeal all nonjurisdictional defects upon voluntarily and knowingly entering a guilty plea, including claims of constitutional violations which may have occurred prior to the plea.'" State v. Pavey, 2010 MT 104, ¶ 11, 356 Mont. 248, 231 P.3d 1104 (quoting State v. Violette, 2009 MT 19, ¶ 16, 349 Mont. 81, 201 P.3d 804).
Sherbondy's claims come too late and through the wrong remedy. He did not appeal his conviction and sentence, and he is precluded from waging a collateral attack now. Section 46-22-101(2), MCA. He has not demonstrated illegal incarceration, and he is not entitled to relief. Therefore.
IT IS ORDERED that Sherbondy's Petition for Writ of Habeas Corpus is DENIED and DISMISSED.
The Clerk is directed to provide a copy of this Order to counsel of record and to Eugene Edwin Sherbondy personally.