03/22/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 22-0045
OP 22-0045
RUSSELL SCOTT AVERY, MAR 2 2 2022
Bowen Greenwood
Clerk of Supreme Court
State of Montana
Petitioner,
v.
ORDER
JIM SALMONSEN, Warden,
MONTANA STATE PRISON,
Respondent.
Representing himself, Russell Scott Avery petitions this Court for habeas corpus
relief, alleging that the Missoula County District Court revoked his parole. In compliance
with this Court's February 3, 2022 Order, the Department of Corrections (the Departrnent)
responds that Avery has not dernonstrated illegal incarceration and that his Petition should
be denied. Section 46-22-101(2), MCA.
In May 2012, the Missoula County District Court sentenced Avery to the Montana
State Prison (MSP) for thirty years with twenty years suspended for felony sexual
intercourse without consent. The Board of Pardons and Parole (Board) granted Avery
parole on April 14, 2020. In March 2021, he violated his parole in Lewis and Clark County
when he was charged with a new offense, criminal possession of dangerous drugs. On
May 25, 2021, the Missoula County District Court revoked his 2012 sentence because
Avery violated his conditions. The court committed him to the DOC for twenty years with
seventeen years suspended. In a separate proceeding on July 21, 2021, the Board revoked
Avery's parole because he violated laws and conduct, used illegal drugs, and associated
with other probationers and parolees.
Avery states that the Missoula County "District Court Violated [his] Due Process
Rights when it Unilaterally [superseded] the Statutory Authority of the State Board of
Parole and revoked [his] April 14, 2020[] Parole." Avery contends that instead of having
the Board revoke his parole, the District Court revoked his "suspended sentence" and
imposed a new sentence. Avery notes in his Petition that at his May 25, 2021, revocation
hearing before the District Court, he argued that as a parolee he was under the Jurisdiction
of the Parole Board and the District Court lacked jurisdiction to revoke hirn because "I have
not began [sic] my suspended sentence untill [sic] September, 2021."
Avery is correct that the Board retained jurisdiction over his parole status. But
contrary to Avery's contention, the District Court did not supersede the Board's statutory
authority by revoking his parole. The District Court revoked Avery's suspended sentence
and reimposed a twenty-year sentence with seventeen years suspended. While it is true
that Avery had not yet begun serving the suspended portion of his originally imposed
sentence, § 46-18-203(2), MCA, allows for a petition to revoke a suspended sentence
"either before the period of suspension . . . has begun or during the period of suspension."
State v. Graves, 2015 MT 262, ¶ 14, 381 Mont. 37, 355 P.3d 769 (quoting
§ 46-18-203(2), MCA).
Avery has not demonstrated illegal incarceration or that he is entitled to habeas
corpus relief. Section 46-22-101(1), MCA. He has not shown violations of his
constitutional rights, such as due process. Avery was subject to the jurisdiction of both the
District Court and the Board. Avery violated his parole with a non-compliance violation,
resulting in two separate revocation processes. The District Court had statutory authority
to revoke his twenty-year suspended sentence. Section 46-18-203(7)(a)(iii), MCA. The
District Court did not revoke his parole because that is the province of the Board. Section
46-23-1025(3)(c), MCA. Therefore,
IT IS ORDERED that Avery'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
Russell Scott Avery personally.
DATED this Z_Z day of March, 2022.
Chief Justice
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Justices
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