12/29/2020
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 20-0593
OP 20-0593 RLED
DEC 2 9 2020
GREGORY LEMOYNE WELLS,
Bowen Greenwood
Clerk of Supreme Court
State of Montana
Petitioner,
v. ORDER
TONY HARBAUGH and MIKE WILLEMS,
Respondents.
Gregory Lemoyne Wells petitions this Court for habeas corpus relief, contending
that his sentence upon revocation is illegal because his new offenses were later dismissed
in the City Court for Miles City, Montana. He includes copies of pertinent attachments.
Wells contends that he is illegally incarcerated. He explains that in July 2020, he
received misdemeanor citations over several days for operating a motor vehicle while
under the influence of alcohol; operating with expired registration, and driving without a
valid driver's license. He adds that on July 23, 2020,the State of Montana filed a Petition
to Revoke in the Custer County District Court. Wells states that the City Court issued an
Order in October dismissing his pending misdemeanor charges. Wells asks to be returned
to West Virginia via interstate compact. He also requests his return to probation and an
investigation into his assigned Probation and Parole Officer because he did not have an
intervention pursuant to Montana Incentives and Interventions Grid (MIIG).
Sections 46-23-1028 and 46-18-203, MCA.
This Court does not conduct investigations. Further, Wells's attachments reveal
that his arguments lack merit. Wells was on felony probation before he committed these
new offenses. On June 8, 2020, the Custer County District Court sentenced Wells for
felony partner or family member assault to a five-year term with all but forty-eight days
suspended. On July 22,2020, an officer with the Miles City Police Department conducted
a traffic stop,leading to a charge of DUI. The State's Petition to Revoke noted that Wells
committed two alcohol violations during six weeks ofprobation. The City Court dismissed
just two of Wells's four pending misdemeanor charges and did not dismiss the DUI charge.
On September 21, 2020, the District Court found that Wells violated his recently imposed
felony suspended sentence and revoked it. The District Court sentenced Wells to a
five-year term with the Department of Corrections, awarding Wells 100 days' credit for
time served, which included forty-eight days from his original sentence and fifty-two days
for his sentence upon revocation.
Wells is not entitled to credit for either good time or street time. Good time credit
applies to sentences imposed before 1995. Section 53-30-105, MCA (1995)
(1995 Mont. Laws, ch. 372, §§ 12(2), 13, repeal eff. Oct. 1, 1997). Wells committed his
felony offense in 2020. Pursuant to Montana law, the District Court was clear in not
awarding Wells any time while on probation:
Regarding the interim since June 8,2020,based upon review ofthe testimony
and Report of Violation, the Defendant is due NO CREDIT for satisfactory
intervening supervision. The Defendant was not in compliance with
supervision for this period. During the six-week period (prior to the Petition
to Revoke), the Defendant had three contacts with law enforcement and two
alcohol violations.
Judgment, Order Finding Violation of Suspended Sentence, and Imposition of Final
Sentence, at 5 (Mont. Sixteenth Judicial Dist. Ct., Sept. 25, 2020)(emphasis in original).
See § 46-18-203(7)(b), MCA. The court addressed Wells's request to be transferred to
West Virginia and concluded that his recent violations prevented such request:"Waiting to
transfer to West Virginia before beginning programing would have been fine if the
Defendant would have otherwise maintained compliance; but the Defendant used alcohol
while failing to begin programming intended to support his sobriety?' Judgment, Order
Finding Violation of Suspended Sentence, and Imposition ofFinal Sentence, at 5.
Wells can find no relief with this Court. While Wells argues that he was not arrested
for these new offenses, all his attachments indicate he was cited for breaking the law. The
District Court found that Wells was in violation of his probationary terms and conditions.
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Section 46-18-203(8)(c), MCA. We note that Wells complained about his Probation and
Parole Officer to Adult Probation and Parole. In December, the regional office reviewed
the actions of Wells's Probation and Parole Officer, explaining that the MIIG was correctly
applied and that his Probation and Parole Officer committed no misconduct.
Habeas corpus is not a proper avenue to challenge a sentence upon revocation.
Section 46-22-101(2), MCA.
We conclude that Wells has not established a claim for habeas corpus relief.
IT IS THEREFORE ORDERED that Wells's Petition for a Writ of Habeas Corpus
is DENIED and DISMISSED.
The Clerk is directed to provide a copy of this Order to Sheriff Tony Harbaugh,
Custer County; to Probation Officer Mike Willems, Miles City Probation and Parole
Office; to counsel of record; and to Gregory Lemoyne Wells personally.
DATED this day of December,2020.
Chief Justice
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