No. DA 06-0168
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 186
____________________________________
STATE OF MONTANA,
Plaintiff and Respondent,
v.
GERALD DEAN JACKSON,
Defendant and Appellant.
____________________________________
APPEAL FROM: District Court of the Ninth Judicial District,
In and for the County of Toole, Cause No. DC 02-030,
The Honorable Marc G. Buyske, Presiding Judge.
COUNSEL OF RECORD:
For Appellant:
Robert G. Olson, Frisbee, Moore & Olson, Cut Bank, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Pamela P. Collins, Assistant
Attorney General, Helena, Montana
Merle Raph, County Attorney, Shelby, Montana
____________________________________
Submitted on Briefs: June 26, 2007
Decided: August 6, 2007
Filed:
_____________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 Gerald Dean Jackson (Jackson) appeals the order of the Ninth Judicial District
Court, Toole County, sentencing him to six years in Montana State Prison. We reverse
and remand for re-sentencing.
PROCEDURAL AND FACTUAL BACKGROUND
¶2 The State charged Jackson with seven counts of felony sexual intercourse without
consent in violation of § 45-5-503, MCA. Jackson entered into a plea agreement with the
State under which Jackson pled guilty to one count of sexual intercourse without consent
and the State dismissed the remaining charges. The court accepted the plea agreement
and sentenced Jackson to a six-year commitment to the Department of Corrections
(DOC). The court also designated Jackson a Level I sex offender and required him to
complete phases I and II of the sex offender treatment program at the Montana State
Prison before becoming eligible for parole.
¶3 Jackson filed a motion for re-sentencing more than two years after the court issued
judgment in his case. Jackson alleged that his six-year commitment to the DOC violated
§ 46-18-201(3)(d)(i), MCA. This statute requires “all but the first 5 years of the
commitment to the department of corrections must be suspended.” The court initially
dismissed Jackson’s motion without prejudice based on the fact that § 46-21-102(1),
MCA, and M. R. App. P. 5(b) imposed a time bar on Jackson’s efforts to pursue post
conviction relief or direct appeal.
¶4 Jackson resurrected his argument in a petition for writ of habeas corpus. The State
conceded that Jackson had received an illegal sentence in regard to his six-year DOC
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commitment, but argued that re-sentencing Jackson rather than striking the illegal portion
of Jackson’s sentence constituted the proper remedy. The court vacated Jackson’s illegal
sentence and re-sentenced Jackson to six years at Montana State Prison (MSP) with credit
for time served. The court imposed the condition that Jackson complete phases I and II
of the sex offender treatment program before becoming eligible for parole. The court
concluded that changing Jackson’s sentence from a six-year DOC commitment to a six-
year MSP sentence did not constitute a more onerous sentence. Jackson appeals.
STANDARD OF REVIEW
¶5 We review a criminal sentence for legality only. We review de novo whether the
district court violated the defendant’s constitutional right to due process at sentencing.
State v. Heath, 2005 MT 280, ¶ 5, 329 Mont. 226, ¶ 5, 123 P.3d 228, ¶ 5.
DISCUSSION
¶6 Whether the District Court violated Jackson’s right to due process by changing his
sentence from a six-year DOC commitment to six years incarceration in MSP.
¶7 Jackson argues that the court violated his constitutional due process rights under
North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072 (1969), overruled in part by
Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201 (1989), by imposing a more
burdensome sentence than his original commitment to DOC. Jackson asserts that Pearce
precludes the court from imposing a heavier sentence on him as punishment for setting
aside his original sentence. Jackson cites State v. Tracy, 2005 MT 128, 327 Mont. 220,
113 P.3d 297, in support of his contention that a term of imprisonment constitutes a more
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onerous sentence than an equal term of commitment to the DOC. Jackson argues that the
illegal portion of his original sentence should be stricken.
¶8 Before we address the merits of Jackson’s claim, we first must resolve two
procedural issues raised by the State. The State first argues that the District Court
improperly considered Jackson’s challenge to his illegal sentence as a petition for writ for
habeas corpus. The State asserts that Jackson cannot use habeas corpus proceedings to
“collaterally attack” his sentence. The State argues that Jackson’s only remedy lies with
a direct appeal or a post conviction relief petition, both options that Jackson remains
time-barred from pursuing. The State contends that this Court lacks jurisdiction to
consider Jackson’s appeal based on Jackson’s allegedly improper petition for writ of
habeas corpus.
¶9 Article II, Section 19 of the Montana Constitution guarantees that the “privilege of
the writ of habeas corpus shall never be suspended.” Any person imprisoned in Montana
may “prosecute a writ of habeas corpus to inquire into the cause of imprisonment or
restraint and, if illegal, to be delivered from the imprisonment or restraint.” Section 46-
22-101(1), MCA. The writ of habeas corpus may not be used, however, to “attack the
validity of the conviction or sentence of a person who has been adjudged guilty of an
offense in a court of record and has exhausted the remedy of appeal.” Section 46-22-
101(2), MCA.
¶10 The restriction on habeas corpus contained in § 46-22-101(2), MCA, stands in
tension with the constitutional provision in Article II, Section 19 of the Montana
Constitution, that “the writ of habeas corpus shall never be suspended.” We determined
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in Lott v. State, 2006 MT 279, ¶ 22, 334 Mont. 270, ¶ 22, 150 P.3d 337, ¶ 22, that the
procedural bar created by § 46-22-101(2), MCA, unconstitutionally suspended the writ of
habeas corpus. We further concluded that the incarceration of a person under a facially
invalid sentence—including a sentence that exceeded the statutory maximum for the
crime charged—presented a “grievous wrong” that the court could address through a
petition for writ of habeas corpus. Lott, ¶ 22.
¶11 Jackson alleged, and the State readily conceded, that Jackson’s six-year
commitment to DOC exceeded the statutory parameters of § 46-18-201(3)(d)(i), MCA.
The State argued that re-sentencing Jackson represented the proper remedy. The writ of
habeas corpus constitutes the proper remedy for addressing Jackson’s “grievous wrong.”
Lott, ¶ 22. The court re-sentenced Jackson on January 12, 2006, to a six-year term of
imprisonment in MSP. Jackson filed a timely appeal of his second sentence under M. R.
App. P. 5(b). We conclude that Jackson’s appeal is properly before the Court.
¶12 The State next argues that Jackson waived his right to challenge his original
sentence under State v. Micklon, 2003 MT 45, ¶ 10, 314 Mont. 291, ¶ 10, 65 P.3d 559, ¶
10, wherein we determined that a defendant waived his right to appeal a condition of his
sentence when the defendant invited and actively acquiesced to the sentencing condition.
The State contends that Jackson actively acquiesced to his illegal sentence by agreeing to
the sentence in a plea agreement with the State and, therefore, waived his right to
challenge the sentence. The State argues that the court improperly allowed Jackson to
pursue his challenge of the illegal sentence.
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¶13 The State misplaces its reliance on Micklon in light of the fact that the State did
not object to Jackson’s challenge at the time that he filed his petition for writ of habeas
corpus in the sentencing court. The State admitted to the sentencing court that Jackson
had received an illegal sentence and that the proper “remedy is to re-sentence the
defendant.” Judicial estoppel binds the State to its judicial admissions and prevents the
State from taking a position “inconsistent with previously made declarations in a
subsequent action or proceeding.” Kauffman-Harmon v. Kauffman, 2001 MT 238, ¶ 15,
307 Mont. 45, ¶ 15, 36 P.3d 408, ¶ 15. The State cannot argue now that the District
Court improperly ordered Jackson to be re-sentenced when it sought re-sentencing as the
initial remedy to Jackson’s illegal sentence. Kauffman-Harmon, ¶ 15.
¶14 We turn then to the merits of Jackson’s appeal: whether the District Court violated
Jackson’s right to due process by changing his sentence from a six-year DOC
commitment to six years incarceration in MSP. Due process requires a court to base a
more burdensome re-sentence on “objective information concerning identifiable conduct
of the defendant after the original sentencing and the reasons for the longer sentence must
affirmatively appear on the record.” State v. Redfern, 2004 MT 277, ¶ 12, 323 Mont.
225, ¶ 12, 99 P.3d 223, ¶ 12. A court denies a defendant’s due process rights by
imposing a heavier sentence on the defendant as punishment for setting aside his original
sentence. Redfern, ¶ 12 (citing Pearce, 395 U.S. at 722-24, 89 S. Ct. at 2079-80).
¶15 A sentence to MSP constitutes a more burdensome sentence than a commitment of
the same term to the DOC as a sentence to MSP necessarily requires incarceration in a
detention facility. Tracy, ¶¶ 18-20. A change in sentence from a DOC commitment to a
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term of imprisonment at MSP, however, does not always constitute a more onerous
sentence. We determined in Heath that a shift in sentence from a DOC commitment to a
term of imprisonment at MSP is not more burdensome where the change reduced the
overall amount of time served under the sentence by twelve years. Heath, ¶ 11.
¶16 Jackson’s re-sentence from a six-year DOC commitment to a six-year term of
imprisonment at MSP constitutes a more burdensome sentence under Tracy and Heath.
The sentence to MSP affords Jackson less flexibility than his original commitment to the
DOC. Tracy, ¶ 18. The change in Jackson’s sentence from the DOC commitment to a
term of imprisonment also did not reduce the overall amount of time of Jackson’s
sentence. Heath, ¶ 11. The court could have imposed this heavier sentence on Jackson if
it had complied with the Pearce requirements as stated in Redfern, ¶ 12. Nothing in the
record indicates, however, that the court based Jackson’s more burdensome sentence on
“objective information concerning identifiable conduct of the defendant after the original
sentencing.” Redfern, ¶ 12. Moreover, the record is devoid of the court’s reasons for
imposing the weightier sentence. Redfern, ¶ 12. We conclude that the court violated
Jackson’s due process rights.
¶17 We reverse Jackson’s sentence and remand to the District Court for re-sentencing
in compliance with § 46-18-201(3)(d)(i), MCA, requiring that “all but the first 5 years of
the commitment to the department of corrections must be suspended.”
/S/ BRIAN MORRIS
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We Concur:
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ JOHN WARNER
Justice Jim Rice dissents.
¶18 As the Court explains in ¶ 15, a change in sentence from a DOC commitment to a
term of imprisonment at MSP does not automatically constitute a more onerous sentence.
Rather, as we did in Heath, the Court reviews the challenged new sentence in light of the
circumstances of its imposition to determine whether it is more onerous. See Heath, ¶ 11.
¶19 Here, Jackson was originally “committed to the Department of Corrections for six
(6) years,” and, in light of his offense, was ordered to be ineligible for parole until he had
“successfully complete[d] the Sexual Offender Program phases I and II at the Montana
State Prison (or regional prison).” The sentence imposed additional parole conditions as
well. Pursuant to this original sentence, Jackson was committed to prison by the DOC.
He was serving that prison sentence, had completed Phase I and was in the process of
completing Phase II of the Sexual Offender Program when he initiated this litigation to
challenge his sentence, leading to his resentencing. The District Court then sentenced
Jackson to six years in MSP, with credit for time served, and imposed the same
conditions as the original sentence, including that he complete Phases I and II of the
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Sexual Offender Program before he would become eligible for parole, and would be
subject to the same list of other parole conditions as ordered under the original sentence.
¶20 Under these circumstances, Jackson’s new sentence was not more onerous. His
original sentence, though a DOC commitment, contained provisions making it as onerous
as his second sentence. Though not a direct commitment to MSP, his original sentence
required imprisonment by virtue of its conditions, making Jackson ineligible for parole
until he had completed Phases I and II of the Sexual Offender Program within prison.
Upon resentencing, the District Court simply re-imposed the sentencing outcome of
Jackson’s first sentence, placing him at MSP with credit for time already served there,
and again requiring that he complete the offender program before becoming eligible for
release. As a practical matter, the new sentence was not less flexible than the original.
¶21 Thus, given these circumstances, I would affirm the District Court’s resentencing
order.
/S/JIM RICE
Chief Justice Karla M. Gray and Justice W. William Leaphart join the dissenting opinion
of Justice Rice.
/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
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