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 

 2
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 sixyear 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 

 3
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 

 4
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. 

 5
¶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 

 6
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 

 7
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 

 8
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 

 9