05/25/2021
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 21-0211
OP 21-0211
FILED
BOBBY FRANCIS LOWRY,V., mAY 2 5 2021
Bowen Ureenwood
Clerk of Suprerne Court
Petitioner, State of Montana
v.
ORDER
LEO DUTTON,
Lewis and Clark County Sheriff,
Respondent.
Before this Court is Bobby Lowry's Petition for Writ of Habeas Corpus. Lowry
requests his immediate release from the Lewis and Clark County Detention Center, where
he claims to be held on a • no bail"parole hold.'" He argues that his due process rights
have been violated because he has not had a hearing or explanation. He contends that he
"has never had one single parole violation."
This Court received Lowry's instant Petition the day before we issued an order
denying a similar petition for habeas corpus relief. See Lowry v. Dutton, No. OP 21-0189,
Order(Mont. May 4, 2021)("Lowry I"). We explained that, as a parolee, Lowry may be
held without an initial hearing under Montana law:
Montana's statutory scheme for supervision of parolees provides the process
they are due. Lowry would not be entitled to an initial hearing after arrest if
a new charge has been filed against him in District Court. "After the arrest
of the parolee, an initial hearing must be held unless[,] . . . the parolee has
been charged in any court with a violation of the law[d"
Section 46-23-1024(1)(b), MCA. A parolee who has violated his conditions
"may, if circumstances warrant, be incarcerated in the institution."
Section 46-23-1023(3), MCA.
Lowry I, at 2. Lowry may be held in a detention center pending commencement of new
criminal proceedings or the revocation of his parole. Section 46-23-1023(3), MCA. We
also noted in that Order that Lowry had not demonstrated a prima facie case of illegal
incarceration because he did not provide much, if any, information about his present
situation or history.
Lowry has three criminal convictions from the Eighteenth Judicial District Court,
Gallatin County. On May 17, 2017, Lowry received a ten-year commitment to the
Department of Corrections(DOC) with five years suspended for felony theft of property
by embezzlement. The District Court ordered him to pay restitution ofmore than $25.000.
which he challenged on appeal. State v. Lowry, 2019 MT 191, 397 Mont. 11.
446 P.3d 1148. On August 8, 2017, the District Court sentenced Lowry for felony
promoting prostitution and felony partner or family member assault to two concurrent,
unsuspended terms of five years to the Montana State Prison. The prison sentences were
to run consecutively to his DOC commitment.
We contacted the Clerk ofDistrict Court for Gallatin County. No petition to revoke
or report of violation has been filed in either of Lowry's prior criminal proceedings. We
contacted the Clerk of District Court for Lewis and Clark County, requesting a copy ofthe
register of actions. The State of Montana charged Lowry with felony theft and felony
deceptive practices in early April. As stated before, Lowry has pending charges in a court,
and the statutory provisions regarding an initial hearing on a parole arrest do not apply.
The case register indicates that the District Court has scheduled an arraignment on Lowry's
new charges. Lowry has not demonstrated entitlement to habeas corpus relief.
Section 46-22-101(1), MCA.
IT IS THEREFORE ORDERED that Lowry's Petition for Writ of Habeas Corpus
is DENIED and DISMISSED.
The Clerk ofthe Supreme Court is directed to provide a copy ofthis Order to counsel
of record and to Bobby Francis Lowry V.
DATED this 2G-4/
'day of May, 2021.
r„,
2
Justices
3