Opinion
OP 24-0458
08-20-2024
ANTHONY WAYNE SHULL, Petitioner, v. SGT. BRADLEY BRAGG, LEWIS AND CLARK COUNTY DETENTION CENTER, Respondent.
ORDER
Anthony Wayne Shull has filed a Petition for Writ of Habeas Corpus, indicating that the Department of Corrections (DOC) has incorrectly calculated his sentence, which illegally extends his parole eligibility or discharge dates. Shull is currently detained in the Lewis and Clark County Detention Center.
Shull explains that he received 111 days of dead time "for an alleged Escape from' 7/18/2016 to 11/5/2016." He includes a part of his sentence calculation, titled Good Time Calculation Form, yet Shull did not provide this Court with a complete sentence calculation for review. He contends that "this sentence increase is undue and illegal[,]" putting forth that a court or the Board of Pardons and Parole (Board) did not order it. Shull states that because it was not ordered by a legal authority and because he was not convicted of escape, he should not be incarcerated. He requests that the DOC recalculate his sentence.
By way of background, on March 5, 2015, the Flathead County District Court sentenced Shull to the Montana State Prison (MSP) for two counts of felony burglary to consecutive, ten-year terms. The second consecutive term had eight years suspended. The District Court also sentenced Shull for felony theft to MSP for a consecutive five-year, suspended term and stated that the net effect would be a twenty-five-year prison term with thirteen years suspended (Flathead County sentences). Shull appealed the court's denial of his motion to withdraw his guilty plea, and we affirmed. State v. Shull, 2016 MT 264N, ¶¶2, 8, 2016 Mont. LEXIS 922 (Oct. 18, 2016).
Available electronic records indicate that on February 5, 2018, the Powell County District Court issued an Order granting Shull's motion to dismiss for lack of a speedy trial. The State had charged Shull with escape after fleeing from Connections Corrections on July 18,2016, and eluding official detention. The court issued an arrest warrant for Shull, and he was apprehended in Lake County on November 5, 2016, on other charges. The warrant was served two days later. The District Court granted the motion to dismiss because of the "negligent delay" caused by the State.
Shull had several appearances before the Board after February 2018. On June 26, 2018, the Board denied his parole, ordering that he have chemical dependency treatment, and setting an annual review in June 2019. In June 2019, the Board denied his parole and set a reappearance for November. In November 2019, the Board granted parole, contingent upon completion of placement at a pre-release center and other conditions of release. The Board revoked his parole at a December 14, 2020 hearing because of multiple violations. The Board did not impose any dead time, but noted that Shull had absconded supervision again.
Shull cannot show that his due process rights have been violated because he received notice of his probationary conditions and his subsequent violation. Shull was under the DOC's supervision in 2016 for his Flathead County sentences. Section 46-23-1011, MCA. According to Montana statutes, he would have received a copy of his conditions that he had to sign. Section 46-23-1011(3), MCA. Shull absconded from supervision. Section 46-23-1001(1), MCA. Shull received notice that he violated probationary conditions with the service of his arrest warrant on November 7, 2016. Section 46-23-1012(1), MCA. While Shull is correct that he was not convicted of escape, he was charged with the offense because he could not be located. Shull did not serve the time from July 18, 2016 until November 5, 2016. The DOC has legal, statutory authority to require Shull to serve the 111 days that he did not serve in 2016 for his Flathead County sentences.
All definitions, including dead time, were repealed in July 2022. Admin. R. M. 20.25.202 (2016), repealed 2022 MAR p. 1194, effective Jul. 9, 2022.
Shull has not demonstrated that the DOC should recalculate his sentence. He has not demonstrated illegal incarceration. Section 46-22-101(1), MCA. Therefore, IT IS ORDERED that Shull'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 Anthony Wayne Shull personally.