07/27/2021
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 21-0287
OP 21-0287
FILED
EUGENE ALLEN LINWOOD,JR., JUL 27 2021
Bowen
Greenwood
Clerk of Supreme
Court
Petitioner, State of
Montana.
v.
ORDER
JIM SALMONSEN, Warden Montana
State Prison, and ED FOLEY,
Respondents.
Eugene Allen Linwood, Jr., argues that his sentence is illegal in his Petition for Writ
ofHabeas Corpus because it was imposed after the repeal ofthe persistent felony offender
(PFO)statute, § 46-18-501, MCA. In compliance with this Court's June 11, 2021 Order,
the Attorney General for the State of Montana responds that Linwood's Petition should be
denied.
Linwood is serving a twenty-year sentence with fifteen years suspended after being
convicted in four criminal cases in the Thirteenth Judicial District Court, Yellowstone
County. Linwo6d entered pleas ofguilty in exchange for dismissal ofthe PFO designation
in two cases. He pleaded guilty to felony theft in Cause No. DC 17-1266, the sentence at
issue, and he received a ten-year term with five years suspended along with the PFO
designation. His other convictions include two counts of felony criminal possession of
dangerous drugs and felony thrgery (common scheme).
Linwood challenges his PFO designation along with the requirement to register as
a violent offender. Linwood states that on May 31, 2018, the District Court "sentenced
him as a PFO for a bank robbery conviction." He further states that "Mhe sentence and
written judgment of May 31, 2018[,] is clearly after the repealed statute in [his mentioned]
cases ... using the repealed Mont. Code Ann. § 46-18-501, MCA." Citing to State v. Scott,
Linwood adds that he sought redress in the District Court explaining that the PFO statute
was repealed in 2017, yet it was applied to his sentence for felony theft. 2020 IVIT 178,
400 Mont. 394,467 P.3d 595.
The State points out that the 2017 version of Montana's statutes does not apply to
Linwood because the 2015 version does. See State v. Thomas,2019 MT 155, itri 4, 11, 396
Mont. 284,445 P.3d 777(the District Court sentenced Thomas as a PFO under § 6-18-501,
MCA (2015), because he committed the offense of theft on July 23, 2016). See also
§ 46-18-202(18), MCA (2015). The State explains that defendant Thomas committed his
offense prior to July 1, 2017, and that similarly, Petitioner Linwood committed his felony
offense of theft prior to July 1, 2017, or the effective date of the amended § 46-18-501,
MCA, The State provides that Linwood has a pending motion challenging his requirement
to register as a violerit offender in the District Court. The State concludes that Linwood's
Petition should be denied for two reasons: (1) the 2015 PFO statutes apply to him, and
(2)the District Court is the appropriate place to consider his objection about registration,
not through a petition for habeas corpus relief. See § 46-23-506, MCA, and Graves v.
Kirkegard, No. OP 13-0778, 2014 Mont. LEXIS 208 Order (Jan. 28, 2014)(citing State v.
Mount,2003 MT 275, 1] 89, 317 Mont. 481,78 P.3d 829("The Sexual or Violent Offender
Registration Act is a non-punitive civil regulation.")).
We find the State's arguments persuasive. "In 2017, the Legislature repealed
§ 46-18-501, MCA, and revised the other definition of PFO found in § 46-1-202(18),
MCA." Scott, ¶ 7. As we explained, however, in Thomas, "Section 44 [Applicability]
provides that the Act,in its entirety, will apply "to offenses committed after June 30,2017."
Thomas, ¶ 9 (quoting 2017 Mont. Laws, ch. 321, § 44 (emphasis added)). Linwood
committed the offense offelony theft on April 22,2017,in Yellowstone County. We point
out that he does not have a conviction for bank robbery. The 2015 version of the PFO
statutes applies to him because the offense occurred before the Act's effective date and the
sentencing date is not relevant. Thomas, ¶ 14. Linwood has not demonstiated an illegal
sentence or illegal incarceration. Miller v. Eleventh Judicial Dist Ct., 2007 MT 58, ¶ 14,
336 Mont. 207, 154 P.3d 1186.
2
IT IS ORDERED that Linwood's Petition for Writ of Habeas Corpus is DENIED.
The Clerk is directed to provide a copy of this Order to counsel of record and to
Eugene Allen Linwood, Jr., personally.
DATED this day ofJuly, 2021.
# hiefJust e
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