0 '1 ,•'*14L 12/22/2020
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 20-0572
OP 20-0572
FILED
BRANDON BAGNELL,
DEC 2 2 2020
Petitioner, Bovven Greenwood
Clerk of Supreme Court
Stata cif hAnntana
v.
ORDER
JIM SALMONSEN,Warden,
Montana State Prison,
Respondent.
Representing himself, Brandon Bagnell has filed a verified Petition for a Writ of
Habeas Corpus, indicating that his sentence is illegal because it is longer than the law
allows. He moves for appointment ofcounsel in this original proceeding.
This Court is familiar with Bagnell's history. In May 2013, the State of Montana
charged Bagnell with felony stalking in the Twentieth Judicial District Court, Lake County.
Through counsel, Bagnell entered into a plea agreement with the State and pled guilty to
felony stalking in exchange for dismissal of the other charges along with the State's
withdrawal of the persistent felony offender (PFO) notice (hereinafter 2014 conviction).
The District Court imposed a five-year term to the Departrnent of Corrections (DOC).
Bagnell appealed. On January 19, 2016, this Court dismissed his appeal following our
review because we agreed with his counsel's motion and brief requesting withdrawal on
the grounds that no nonfrivolous issues on appeal existed. State v. Bagnell,
No. DA 15-0039, Order dismissing appeal (Mont. Jan. 19, 2016) (citing Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396(1967) and § 46-8-103(2), MCA)(Bagnell I).
In August 2016, Bagnell filed a petition for postconviction relief in the
District Court. The District Court denied his petition. Representing himself, Bagnell
appealed. This Court affirmed the District Court. Bagnell v. State, No. DA 16-0738,
2018 MT 42N,¶¶ 2, 19, 2018 Mont. LEXIS 55(Bagnell II).
On Januaiy 31, 2018, the Lake County District Court sentenced Bagnell as a PFO
for felony stalking and imposed a twenty-year term to the Montana State Prison(hereinafter
2018 conviction). Through counsel, he appealed. We affirmed. State v. Bagnell,
No. DA 18-0160, 2020 MT 234N,IN 2, 15, 2020 Mont. LEXIS 2317(Bagnell Ill).
In his current Petition, Bagnell contends that he is serving facially invalid sentences.
He challenges his plea for his 2014 conviction of stalking and contends that he has new
evidence about the victim. He contends that a jurisdictional defect exists because he was
not served a copy of the original Amended Temporary Order of Protection in May 2012.
Because of this alleged oversight, he maintains that he should have never had a second
felony offense of stalking resulting in a PFO sentence in 2018. Bagnell requests his
immediate release from MSP.
Any challenge regarding alleged deficient service and jurisdiction should have been
raised in District Court several years ago.
Under § 46-13-101, MCA,most defenses or objections to a criminal charge
that are capable of determination without trial must be raised at or before the
omnibus hearing. Failure to raise such defenses or objections prior to trial
constitutes a waiver ofthe defense or objection. However,lack ofjurisdiction
is a non-waivable defect and must be noticed by the court at any time during
the pendency of the proceeding. Section 46-13-101(3), MCA.
State v. Williams-Rusch, 279 Mont. 437, 453, 928 P.2d 169, 179 (1996). Reviewing
Bagnell's attachments reveals that in 2014 his counsel at the time raised a jurisdictional
challenge in a motion for limine, during the pendency of the proceeding, and prior to
Bagnell's conviction. Counsel for Bagnell requested dismissal of the offense in the
District Court. On October 31, 2014, the court held a hearing on the pending motions,
which was also the same day that the Acknowledgement and Waiver of Rights and Plea
Agreement was filed. Instead of dismissal, the District Court decided it had jurisdiction
over Bagnell's offense by securing a felony conviction. Sections 46-2-101, and
46-2-201, MCA.
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Bagnell's other claims have been litigated before this Court. Bagnell asserted an
involuntary plea with his 2014 conviction of stalking. We addressed this challenge and
pointed out:
Bagnell's argument that his Plea was involuntary because [his attomey]
failed to include the right to appeal is without merit. Prior to Bagnell's entry
of a guilty plea, the District Court conducted a detailed colloquy during
which Bagnell affirmed that he was not under the influence of drugs or
alcohol and was not suffering from any mental, physical, or emotional
impairment, no threats had been made against him or promises made to
him—other than those contained within the plea agreement—he
acknowledged that he had adequate time to work with counsel.. . to prepare
and indicated firther that he was satisfied with [his counsel's services].
Bagnell 16. Bagnell's sentence for his 2014 conviction is valid.
Bagnell's sentence for his 2018 conviction is also valid. As mentioned, Bagnell
appealed, challenging the lack of a specific instruction from the court to thejury about the
mental state. We concluded, after review, that Bagnell did not suffer an unfair jury trial.
Bagnell 15:
As we have explained, in light of the evidence presented at trial—chiefly,
Bagnell's explicit letters to L.L. and the impact they had on her—we are
confident that the jury would not have reached a different outcome had
defense counsel objected to the court's instructional error.
Bagnell 14. This brings us to Bagnell's last claim about new evidence. In his appeal,
we addressed Bagnell's written threats to the victim, L.L.,including some ofthe testimony
from the investigative officer who read to the jury parts of Bagnell's letters to the victim.
Bagnell ¶¶ 3, 11-12. Bagnell will find no reliefnow in his attempts to blame the victim.
Bagnell brings his claims too late and via the wrong remedy of habeas corpus.
Section 46-22-101(2), MCA bars a person "who has been adjudged guilty of an offense
and ... has exhausted his remedy of appeal, to attack the validity of his sentence." Lou v.
State, 2006 MT 279, ¶ 19, 334 Mont. 270, 150 P.3d 337. His claims either could have
been, or should have been, raised in his appeals. See Bagnell I;BagnellII, and Bagnell
By appealing, Bagnell has exhausted the remedy of appeal and cannot now attack the
sentences for his convictions. His prison sentence is not any longer than the law allows.
Section 46-18-502(1), MCA (2017). Therefore,
IT IS ORDERED that Bagnell's Petition for a Writ of Habeas Corpus is DENIED
and DISMISSED.
IT IS FURTHER ORDERED that Bagnell's Motion for Appointment of Counsel is
DENIED,as moot.
The Clerk is directed to provide a copy of this Order to counsel of record and to
Brandon Bagnell personally.
,
r
DATED this ?r day of December, 2020.
Chief Justice
Justices
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