01/19/2021
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: OP 21-0007
OP 21-0007
MICHAEL DANIELS,
FILED
JAN 1 9 2021
Petitioner,
Bowen Greenwood
Clerk of Supreme Court
State of Montana
v.
ORDER
JIM SALMONSEN, Warden,
Montana State Prison,
Respondent.
Michael Daniels petitions this Court for habeas corpus relief because of a 2019
parole revocation. Daniels alleges that the Parole Board violated his due process rights
when it revoked his parole without strict adherence to Montana statutes. Daniels requests
his immediate release frorn prison, reinstaternent of his parole, and dismissal of his parole
violations.
Citing § 46-6-214, MCA, Daniels first claims that his Novernber 28, 2019 arrest
was invalid because no signature authorized the arrest warrant. He next contends that he
was not personally served with a notice to appear, violating § 46-23-1023(1), MCA, and
there was no written staternent within twelve hours as required by § 46-23-1023(2), MCA.
Daniels argues further that he was held longer than seventy-two hours without bail, citing
§ 46-23-1023(4), MCA. He challenges his on-site hearing because it was not held within
five days after arrest as required by § 46-23-1024(2), MCA. Daniels lastly argues that his
revocation hearing was unlawful because it was not scheduled within ninety days as
directed in Admin. R. M.20.25.801(12) but occurred almost six rnonths after his December
4, 2019 on-site hearing. We consider his clairns in turn.
Arrest Warrant Challenge
The arrest warrant was issued pursuant to § 46-23-1023, MCA, not
§ 46-6-214, MCA. Revocation of parole is not a part of the crirninal prosecution.
Morrissey v. Brewer,408 U.S. 471,480,92 S. Ct. 2593,2599-2600(1972). The particulars
of an arrest warrant under § 46-6-214, MCA,do not apply.
Lack ofService & kVritten Staternent
Daniels's Probation and Parole Officer issued a warrant for his arrest. "At any time
during release on parole or conditional release, the department may issue a warrant for the
arrest of the parolee for violation of any of the conditions of release or a notice to appear
to answer to a charge of violation. The notice must be served personally upon the parolee."
Section 46-23-1023(1), MCA. (Ernphasis added). Daniels was not served personally with
a notice because a warrant was issued for his arrest. Daniels received a copy of a warrant
as evidenced by his attachments. For the same reason, § 46-23-1023(2), MCA,requiring
a written statement, does not apply to him. ("Any probation and parole officer may arrest
the parolee without a warrant or may deputize any other officer with power to arrest to do
so by giving the officer oral authorization and within 12 hours delivering to the place of
detention a written statement setting forth that the parolee has, in the judgment of the
probation and parole officer, violated the conditions of the parolee's release."
Section 46-23-1023(2), MCA (emphasis added).)
Held without Bail
The issue of a seventy-two-hour hold does not apply to Daniels, pursuant to
§§ 46-23-1023(4)(a), (b), MCA, because an initial or on-site hearing comrnenced the
revocation process, pursuant to § 46-23-1023(4)(c), MCA. His Probation and Parole
Officer issued an Affidavit of Support of Probable Cause Hearing on Parole Violations on
December 3, 2019. A parolee who has violated his conditions "may, if circumstances
warrant, be incarcerated in the institution." Section 46-23-1023(3), MCA.
See also § 46-23-1024(6), MCA ("The provisions of Title 46, chapter 9, regarding release
on bail of a person charged with a crime are not applicable to a parolee ordered to be held
in a county detention center or other facility under this section.").
On-Site Hearing
"The hearing must be conducted at or reasonably near the place ofthe alleged parole
violation or arrest and within 5 days after arrest. The parolee must be given notice of the
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hearing and must be allowed to appear and speak in the parolee's own behalf and introduce
relevant inforrnation to the hearings officer." Section 46-23-1024(2), MCA. Daniels was
arrested on Thanksgiving, Thursday, November 28, 2019, and an on-site hearing was held
on Wednesday, December 4, 2019, according to the copy Daniels attached to his Petition.
The hearing occurred within six days and is not violative of due process. This Court
recently explained that a one-day delay pursuant to § 46-23-1024(2), MCA, does not give
rise to a claim for due process violations. See Buehl v. Salmonsen, No. OP 18-0495,
2018 Mont. LEXIS 390(Nov. 14, 2018). This Court has deterrnined that"Whe purpose of
an on-site hearing is to deterrnine whether there is probable cause or reasonable ground to
believe that the arrested parolee has committed acts that would constitute a violation of
parole conditions." Owens v. Risley, 217 Mont. 35, 37, 702 P.2d 1, 2 (1985);
Morrissey, 408 U.S. at 485, 92 S. Ct. at 2602.
Daniels received notice of the alleged parole violations when he received a copy of
the Deceinber 3, 2019 On-Site Affidavit of Probable Cause, signed by his Probation and
Parole Officer. The Probation and Parole Officer listed at least five violations of Daniels's
parole conditions during a four-month window since his July 25, 2019 parole. In the
Summary of On-Site Hearing, the presiding hearing officer stated that he reviewed
Daniels's due process rights with him and that Daniels acknowledged that his rights were
afforded to hiin. The officer included:
Michael Daniels did not hire an attorney to represent him. Each rule violation
was read[.] Daniels was afforded an opportunity to aslc questions and give
statements while entering his plea. P&P Officer Tricia Jory [w]as also
[offered] the opportunity to present testiinony.
I advised Parolee Michael Daniels at the conclusion of his hearing [t]hat I
found probable cause regarding all violations and [t]hat I was returning him
to the Board of Pardons and Parole for a forinal hearing. Daniels did state
that his [due] process rights were afforded to him at the conclusion of the
hearing and that he did want to appear before the Board at [his] hearing.
Daniels's due process rights were not violated at this on-site hearing.
"[D]ue process would seem to require that some minimal inquiry be conducted at or
reasonably near the place of the alleged parole violation or arrest and as promptly as
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convenient after arrest while inforrnation is fresh and sources are available."
Morrissey, 408 U.S. at 485, 92 S. Ct. at 2602. See also §§ 46-23-1001 through
46-23-1032, MCA (Montana statutes codifying the process for both probation and parole
supervision and revocation). At his hearing, Daniels entered pleas of guilty to possessing
ammunition during a search after the November 28, 2019 law enforcernent stop and to
possessing illegal drugs following his vehicle's impoundment. Daniels's hearing was
conducted in a timely fashion and within a short period of arrest, providing him all the
process that he was due. Daniels had an on-site hearing as promptly as possible.
Daniels also received criminal charges in the Cascade County District Court
(Cause No. ADC-19-0866). "After the arrest ofthe parolee, an initial hearing rnust be held
unless[,] . . . the parolee has been charged in any court with a violation of the law[1"
Section 46-23-1024(1)(b), MCA. Though the new charges likely obviated the need for an
on-site hearing, Daniels received one. His due process rights were amply protected.
Revocation Hearing
Regarding the delay between Daniels's on-site hearing and appearance before the
Board, we conclude that his due process rights were not violated. Daniels had a pending
criminal matter in District Court. Based on the limited information presented, it is not clear
whether his pending case took priority over his appearance before the Board. The charges
were dismissed in April 2020, during a time when the novel coronavirus pandemic was
slowing activity around the State. See Disability Rights Mont. v. Mont. Judicial
Dists. 1-22, No. OP 20-0189, 2020 Mont. LEXIS 2061, at *11 (Apr. 14, 2020). The delay
did not prejudice Daniels because the revocation hearing provided him the required due
process, pursuant to § 46-23-1025, MCA,and Admin. R. M. 20.25.801(12)(2016).
"Parole . . . is a discretionary grant of freedom frorn incarceration."
McDermott v. McDonald, 2001 MT 89, ¶ 24, 305 Mont. 166, 24 P.3d 200. We note that
this is Daniels's third parole in four years. The recent revocation of his parole was
warranted. Daniels has not shown that the Board erred in revoking his parole. He is not
entitled to reinstatement of parole or dismissal of his parole violations. Daniels has not
demonstrated that he is illegally incarcerated. Section 46-22-101(1), MCA.
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IT IS THEREFORE ORDERED that Daniels's Petition for a Writ of Habeas Corpus
is DENIED.
The Clerk is directed to provide a copy of this Order to counsel of record and to
Michael Daniels personally.
DATED this i 9 —day of January, 2021.
Chief Justice
.9.4 211,__ /4
ee l,
Justices
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