ORNINAL 08/17/2021
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: OP 21-0385
OP 21-0385
FILED
BRODY LUCAS BOLES
AUG 1 7 2021
Bowen Greenwooa
Clerk of Supreme Court
State of Montana
Petitioner,
v. ORDER
JIM SALMONSEN, Warden,
Montana State Prison,
Respondent
Brody Lucas Boles petitions this Court for habeas corpus relief, contending that the
Board of Pardons and Parole (Board) violated his Due Process rights when the Board
denied him parole on June 16, 2021. Boles states that he had asked for a continuance of
his appearance while he awaited delivery of an updated chemical dependency evaluation
and outpatient treatment plan and that he requested that his "parole hearing be continued
at a later date[J" Citing to McDermott v. McDonald,Boles argues that the Board's actions
violated his rights and "that parole cannot be denied without due process." 2001 MT 89,
305 Mont. 166,24 P.3d 200. Boles requests that this Court remand the matter to the Board
for further consideration. He provides copies ofan affidavit, his aftercare plan, evaluation,
and corresponding needs assessment. Boles does not provide a copy of his Case
Disposition from the Board.
Available electronic records indicate that Boles has four criminal cases from the
Gallatin County District Court. In 2012, the District Court deferred imposition of
concurrent, six-year terms for felony stalking and aggravated burglary. In 2014, because
of a new offense, the court revoked the Sentencing Order deferring imposition ofsentence
and imposed concurrent, ten-year terms to the Department of Corrections(DOC)with five
years suspended. The court also committed Boles to the DOC for felony aggravated assault
to a concurrent, ten-year term, with five years suspended.
In 2018, the State of Montana charged Boles with six offenses, including sexual
abuse of children, strangulation, and partner or family member assault, in the Gallatin
County District Court. In 2019 the State charged Boles with criminal possession of
dangerous drugs. On October 1, 2020, the District Court sentenced Boles for felony
strangulation to the Montana State Prison(MSP)for a concurrent, five-year term, and the
court sentenced him to MSP for a consecutive, five-year term for criminal possession of
dangerous drugs.
"There is no absolute standard for what constitutes due process." McDermott, ¶ 10.
This. Court has articulated that in a parole hearing, while the due process protections are
less stringent than a criminal proceeding in a court of law, the protections do exist and are
defined by two main elements: an appearance, or opportunity to be heard, and written
notice of the Board's decision. McDermott, ¶ 11. "It is well established that a parole
release determination is not subject to all the due process protections required to convict or
confine. . . . Nor must a parole release determination provide the sarne due process
protections as are required in a parole revocation hearing." McDermott, ¶ 11 (citations
omitted). "[T]he United States Supreme Court has held that due process is satisfied when
the prisoner seeking parole is, at a minimum, provided with an opportunity to be heard and
a written statement explaining why he was denied parole." McDermott, ¶ 11 (citing
Greenholtz v. Inmates ofthe Nebr. Penal Complex, 442 U.S. 1, 16, 99 S. Ct. 2100, 2108
(1979); Sage v. Gamble,279 Mont. 459,465, 929 P.2d 822, 825 (1996)).
We obtained a copy of Boles's Case Disposition. Boles's claims do not rise to
violations of his due process rights. Boles appeared before the Board on June 16, 2021.
The Board denied his parole at his initial appearance and passed him to discharge—
November 27, 2023. See Admin. R. M.20.25.501(2)(f)(2012)(The Board's hearing panel
may pass the offender to discharge when the date is less than six years away). The Board
based its conclusions on the nature and severity of the offenses, his previous criminal
history, multiple offenses, poor history in community placement and/or under supervision,
and strong objection from criminal justice authorities and/or citizenry. See
2
Admin. R. M.20.25.505(2)(a) and (2)(p)(2016). The Board remarked that "Parole at this
time would diminish the severity ofthe crime." While not provided with his Petition, Boles
received a written decision of why he was denied parole.
We have stated several times that the Board has broad authority to consider all
factors relating to an offender. "As a complement to its broad discretion to grant, deny, or
condition parole, the Board is authorized to consider factors that may not be considered by
the district court at trial and sentencing." McDermott, ¶ 20. At an initial hearing,
"the hearing panel shall consider all available and pertinent information regarding the
prisoner, including:"
(1) the circumstances of the offense;
(2) the prisoner's previous social history and criminal record;
(3) the prisoner's conduct, employment, and attitude in prison;
(4) the reports of any physical, psychological, and mental evaluations that
have been made; and
(5) written or oral statements from criminal justice authorities or any other
interested person or the interested person's legal representative,
including written or oral statements from a victim regarding the effects
ofthe crime on the victim. [].
Section 46-23-202, MCA(2011). While the Board may consider psychological and mental
evaluations, Boles does not address whether he informed the Board of any updated
evaluations. In light of the many reasons the Board gave for denying Boles parole, it is
doubtful that any other information would have persuaded the Board differently in any
event.
Lastly, we point out that Boles's remedy would be with the Board. Boles may seek
reconsideration with the Board, in writing and within sixty days of its decision, pursuant
to Admin. R. M. 20.25.501(7) (2012), "NI'the offender can present evidence that the
hearing panel's decision was based on erroneous or false information[d"
Boles has not demonstrated illegal incarceration. Section 46-22-101(1), MCA. He
has not demonstrated a violation of his due process rights with the Board's denial of his
parole in June. Accordingly,
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IT IS ORDERED that Boles's Petition for Writ of Habeas Corpus is DENIED and
DISMISSED.
The Clerk is directed to provide a copy of this Order to counsel of record and to
Brody Lucas Boles personally.
DATED this 1 -day of August, 2021.
11„,„ ices