State v. Carson

No. 01-030

IN THE SUPREME COURT OF THE STATE OF MONTANA

2002 MT 234

STATE OF MONTANA,

Plaintiff/Respondent,

v.

WILLIAM EDGAR CARSON, a/k/a
RICHARD GORDON CARSON,

Defendant/Appellant.

APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Rosebud,
The Honorable Joe L. Hegel, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Robert L. Stephens, Jr., Southside Law Center, Billings, Montana

For Respondent:

Hon. Mike McGrath, Attorney General; John Paulson,
Assistant Attorney General, Helena, Montana

Michael B. Hayworth, Rosebud County Attorney, Forsyth, Montana

Submitted on Briefs: March 21, 2002

Decided: October 17, 2002
Filed:

__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.

¶1 In 1997, the Appellant, William Edgar Carson, pled guilty to

felony theft and the District Court for the Sixteenth Judicial

District in Rosebud County sentenced him to a three-year deferred

imposition of sentence. Approximately one year later, Carson

admitted that he violated the conditions of his deferred sentence

and pled guilty to three additional misdemeanor offenses. The

District Court imposed an eighteen-month jail sentence for the

misdemeanor violations and revoked his deferred sentence. In lieu

of the deferred sentence, the District Court committed Carson to

the Department of Corrections (DOC) for a period of eight years.

Carson subsequently filed a motion to modify the sentence and

petitions for postconviction relief and a writ of habeas corpus.

The District Court denied Carson’s motion and petitions and Carson

appeals. We affirm in part and reverse in part the order of the

District Court.

¶2 We address the following issues on appeal:

¶3 1. Did the District Court err when it denied Carson’s
petition for postconviction relief?

¶4 2. Was Carson entitled to legal representation at his parole

hearing?
FACTUAL AND PROCEDURAL BACKGROUND

¶5 In March of 1997, the Respondent, State of Montana, intended

to charge Carson, by information, with felony theft. However, at

all times relevant to the felony theft proceedings, Carson

maintained that his name was Richard Gordon Carson. Therefore, the

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charging documents charged Carson’s alias with the relevant

offense. Ultimately, Carson pled guilty to felony theft and

executed an acknowledgment of sentence in the name of “Richard

Carson.”

¶6 In November of 1997, the State alleged that Carson violated

the terms of his deferred sentence and a bench warrant was issued

for his arrest. Through fingerprint analysis and photo

identification, the State discovered that Carson misrepresented his

true identity throughout the felony theft proceedings. Therefore,

on December 23, 1997, the State charged Carson, by information,

with: (1) perjury, a felony, in violation of § 45-7-201(1), MCA;

(2) unsworn falsification to authorities, a misdemeanor, in

violation of § 45-7-203(1)(a), MCA; and (3) obstructing a peace

officer or other public servant, a misdemeanor, in violation of §

45-7-302(1), MCA. On March 26, 1998, Carson admitted that he

violated the conditions of the deferred sentence associated with

the felony theft charge. Consequently, on March 30, 1998, the

District Court recommended that Carson be placed in the Swan River

Boot Camp Program. However, on April 1, 1998, the Treasure State

Correctional Training Center denied Carson admission to the boot

camp. On July 9, 1998, the State amended the perjury charge to

false swearing, a misdemeanor, in violation of § 45-7-202(1)(a),

MCA, and Carson subsequently pled guilty to all of the misdemeanor

offenses.
¶7 On August 3, 1998, the District Court entered two separate

sentencing orders which addressed the deferred sentence violation

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and misdemeanor offenses. The District Court revoked the deferred

sentence and committed Carson to the DOC for a period of eight

years. However, the District Court recommended that Carson “be

pre-screened for direct commitment from the Rosebud County Jail to

the Swan River Boot Camp Program.” The court indicated that upon

successful completion of the boot camp program and subsequent

halfway house requirement, Carson would be eligible for reduction

of his sentence pursuant to § 53-30-402, MCA. For the misdemeanor

offenses, the District Court sentenced Carson to three consecutive

six-month jail terms to be served concurrently with the felony

theft sentence.
¶8 In February of 2000, Carson submitted an application for

parole to the Board of Pardons and Parole (Board). Carson’s

attorney submitted a request to the Board to represent Carson at

the hearing. However, the Board denied the attorney’s request

because he submitted it less than ten days prior to the scheduled

hearing. On February 29, 2000, the Board denied Carson parole.

¶9 On July 5, 2000, Carson filed a document with the District

Court entitled “Motions for Post-Conviction Relief, Modification of

Sentence and Petition For Habeas Corpus.” Carson alleged that the

DOC had and continued to violate his constitutional rights to due

process and equal protection of the laws in contravention of the

United States and Montana Constitution. Specifically, Carson

alleged that the DOC unconstitutionally denied him the right to

legal representation at a hearing before the Board. Further,

Carson requested that the District Court reexamine the DOC’s

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erroneous calculation of credits for time-served and good time.

Carson also contended that his continued incarceration was contrary

to public policy and the District Court’s sentencing intent.

Therefore, Carson requested that the District Court order the DOC

to show cause why his incarceration should not be terminated. On

October 19, 2000, the District Court denied Carson’s motion for

modification of the sentence as well as his petitions for

postconviction relief and writ of habeas corpus. Carson appeals

the order of the District Court which denied his requested relief.
DISCUSSION

ISSUE 1

¶10 Did the District Court err when it denied Carson’s petition

for postconviction relief?

¶11 Carson insists that when the District Court amended his

sentence in August of 1998, it clearly intended to utilize those

alternatives to incarceration which have been established for

nonviolent offenders. Carson contends that his current sentence

conflicts with the District Court’s sentencing intent and the

public policy which aspires to punishment commensurate to the crime

committed. Carson claims that the District Court had jurisdiction

to entertain his motion for postconviction relief because “[t]he

original charges in this case stem from the Information filed on

March 20, 1997.” On April 28, 1997, the Legislature reduced the

statute of limitations for filing postconviction relief petitions

from five years to one year. Because the State charged Carson

prior to the statute of limitations’ amendment, Carson contends

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that the five-year statute applies and, therefore, his petition was

not time barred.

¶12 In its October 19, 2000, order, the District Court stated that

it could only modify Carson’s sentence: (1) to correct a clerical

error or illegal sentence apparent from the record; (2) upon the

revocation of a prior sentence; or (3) upon petition for

postconviction relief. The District Court concluded that Carson’s

petition was not brought pursuant to the first two scenarios. As

to Carson’s petition for postconviction relief, the District Court

concluded:
[A] petition for post-conviction relief must be filed, if
at all, within one year of the date his conviction became
final. The Amended Sentencing Order at issue in this
case was filed August 5, 1998. It became final upon
lapse of the appeal period in October of 1998. Thus,
this Court does not have jurisdiction to grant the
requested modification.

¶13 We review a district court’s denial of a petition for

postconviction relief to determine whether the court’s findings of

fact are clearly erroneous and whether its conclusions of law are

correct. State v. Hanson, 1999 MT 226, ¶ 9, 296 Mont. 82, ¶ 9, 988

P.2d 299, ¶ 9. To determine whether a petition for postconviction

relief is timely, we look to the statute of limitations in effect

at the time the petition is filed, not to the statute in effect at

the time of charge or conviction. Hawkins v. Mahoney, 1999 MT 82,

¶ 9, 294 Mont. 124, ¶ 9, 979 P.2d 697, ¶ 9. Carson filed his

petition for postconviction relief on July 5, 2000. Therefore, the

statute of limitations found at § 46-21-102, MCA (1999), applies to

the case at bar.

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¶14 Section 46-21-102(1), MCA (1999), provides that “[e]xcept

as provided in subsection (2), a petition for the relief referred

to in 46-21-101 may be filed at any time within 1 year of the date

that the conviction becomes final.” In his petition for

postconviction relief, Carson sought relief from the amended

sentencing order entered on August 3, 1998. The amended sentencing

order became final in October of 1998, once the sixty-day period

for appeal expired. As indicated above, Carson filed his petition

on July 5, 2000. Clearly, Carson did not file his petition within

the time period prescribed in § 46-21-102, MCA (1999). Therefore,

we hold that the District Court did not err when it concluded that

it did not have jurisdiction to entertain Carson’s petition for

postconviction relief.

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 ISSUE 2

¶15 Was Carson entitled to legal representation at his parole

hearing?

¶16 Carson contends that he had a statutory and constitutional

right to counsel at the parole hearing pursuant to § 46-23-202,

MCA, and Article II, Section 24, of the Montana Constitution.

Carson insists that a habeas corpus petition was the proper vehicle

upon which to seek review of the Board’s denial of his right to

counsel. The State maintains that Carson must exhaust

administrative appeals before the District Court can review the

Board’s denial of his request for representation. Therefore, the

State concludes that the District Court “should not insert itself,

by means of habeas corpus, into what is essentially a discretionary

and administrative matter best left for determination by the

Board.”
¶17 The District Court stated that the Board has exclusive

jurisdiction over parole matters. Therefore, the District Court

concluded:

[I]f the Defendant is claiming a constitutional violation
in the Defendant’s dealings with the Department of
Corrections or before the Parole Board, he should have
exhausted any administrative appeals and sought judicial
review of such administrative decisions. There is no
evidence before this Court that the Defendant has done
this, and it would be inappropriate for this Court to
insert itself collaterally into such administrative
proceedings.

¶18 At the outset, we note that a district court’s denial of a

habeas petition in a criminal proceeding is not appealable to this

Court. Morrison v. Mahoney, 2002 MT 21, ¶ 8, 308 Mont. 196, ¶ 8,

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41 P.3d 320, ¶ 8. However, the State has not objected to the

habeas issues raised in Carson’s appeal and, instead, argues in

favor of the District Court’s underlying rationale for its denial.

Furthermore, this Court has authority to entertain a subsequent

habeas petition. Morrison, ¶ 8. Therefore, we deem the issues

raised by Carson regarding the right of counsel as an original

petition for a writ of habeas corpus and will proceed to address

the merits of the relevant claims.

¶19 As indicated above, the State contends that a habeas petition

is not the proper vehicle by which to review the Board’s denial of

representation. The State suggests that Carson should have

exhausted his “administrative appeals” prior to filing the habeas

petition. However, the State does not refer us to the appropriate

administrative process and we have been unable to ascertain the

purported procedure.
¶20 In Eisenman v. State, 2000 MT 170, ¶ 14, 300 Mont. 322, ¶ 14,

5 P.3d 542, ¶ 14, we noted that “immediate physical release is not

the only remedy available under a writ of habeas corpus.” Here,

Carson requested legal representation at a proceeding which could

have potentially reduced his term of imprisonment. To require

exhaustion of “administrative appeals” with regard to the right of

representation at parole hearings would defeat the purpose for

which habeas corpus exists by requiring an unlawfully held inmate

to first seek relief from the very institution by which he alleges

he is unlawfully held. Neither the Montana Constitution nor

relevant habeas statutes contemplate such course of action.

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Therefore, we conclude that a petition for a writ of habeas corpus

is the appropriate vehicle by which to seek review of the Board’s

denial of representation. We now turn our attention to the merits

of Carson’s petition for a writ of habeas corpus.

¶21 Section 46-23-202, MCA, provides:
Investigation of prisoner by board or board’s
designee. (1) Within the 2 months prior to a prisoner’s
official parole eligibility date or as soon after that
date as possible, the prisoner shall make an initial
appearance before the board or the board’s designee . . .
.

(2) Before a prisoner may be paroled, the board or
its designee shall:

(a) conduct a hearing and interview the prisoner . .
. . At the time of the hearing, the board or its designee
must receive relevant statements from interested persons
and any person may be represented by counsel. The board
has the power to regulate procedures at all hearings.
[Emphasis added.]

Carson contends that the Board rejected his attorney’s request to

attend the hearing because his attorney submitted the request less

than ten days prior to the hearing. We have found no such

requirement within the Montana Code Annotated or Administrative

Rules of Montana. We suspect that the Board was referring to Rule

20.25.401(4), ARM, which provides:

Unless the board otherwise orders, interested
persons of legal age who wish to appear before the board
and have relevant statements to present shall notify the
board in writing not less than three days prior to the
regularly scheduled formal hearing of the reason for
intent to appear before the board, the date of intended
appearance and the relationship of the individual to the
inmate at whose hearing the person intends to appear.
The board shall have discretion to determine the
relevancy of the proposed testimony and the number of
interested persons who shall appear at any hearing. Such
determinations will be made on a case-by-case basis.

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¶22 Rule 20.25.401(4), ARM, does place a time limit on requests

from “interested persons” to speak at a parole hearing. However,

it does not address representation by attorneys. The State

concedes that a person appearing before the Board has a statutory

right to be represented by counsel, pursuant to § 46-23-202(2)(a),

MCA, but makes no mention of the regulations purportedly relied

upon by the Board. Therefore, we conclude that the Board violated

Carson’s statutory right to counsel at the parole hearing.

Accordingly, we hereby grant Carson’s petition for a writ of habeas

corpus, to the extent it requests reconsideration by the Board with

the representation contemplated in § 46-23-202(2)(a), MCA, and

remand this matter to the DOC for a new parole hearing,

expeditiously scheduled, with Carson’s attorney in attendance.

/S/ TERRY N. TRIEWEILER

We Concur:

/S/ JIM REGNIER
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART

Chief Justice Karla M. Gray specially concurring.

¶23 I agree entirely with the Court's opinion on issue one. I

agree with the result reached by the Court on issue two, given the

procedural posture in which this case is presented. I write

separately only to clarify that my agreement with the conclusion

that the Board violated Carson's statutory right to counsel at the

parole hearing is limited to the facts of this case, namely, that

the State did not advance any regulations pursuant to which the

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Board acted and, therefore, we have no regulations before us upon

which the Board reasonably could have relied. I would not

foreclose consideration of any such regulations in a future case

where they might be advanced as support for the Board's action.

/S/ KARLA M. GRAY

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