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, M oore & 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:

_____________________________________________ ClerkJustice Brian Morris delivered the Opinion of the Court. ¶1 Gerald Dean Jackson (Jackson) appeals th e order of the Ninth Judicial District Court, Toole County, sentencing him to six years in Montan a State Prison. We reverse and remand for re-sentencing. PROCEDURAL AND FACTUAL BACKGROUND ¶2 The State charged Jackson with seven coun ts of felony sexual intercourse without consent in violation of § 45-5-503, MCA. Jackson entere d 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 re maining charges. The court accepted the plea agreement and sentenced Jackson to a six-year comm itment 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 pr ogram at the Montana State Prison before becoming e ligible for parole. ¶3 Jackson filed a motion for re-sentencing more than two years after the court issued judgment in his case. Jackso n alleged that his six-year co mmitment 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 prejudic e based on the fact that § 46-21-102(1), MCA, and M. R. App. P. 5(b) imposed a ti me bar on Jackson’s e fforts to pursue post conviction relief or direct appeal. ¶4 Jackson resurrected his argument in a petitio n for writ of habeas corpus. The State conceded that Jackson had received an illegal sentence in regard to his six-year DOC

2commitment, but argued that re-sentencing Jack son rather than striking the illegal portion of Jackson’s sentence constitute d the proper remedy. The c ourt vacated Jackson’s illegal sentence and re-sentenced Jack son 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 fo r 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 constitu tional 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 Jacks on’s right to due proc ess by changing his sentence from a six-year DOC commitmen t to six years incar ceration 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. 2 201 (1989), by imposing a more burdensome sentence than his original comm itment to DOC. Jackson asserts that Pearce precludes the court from imposing a heavier se ntence 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

3onerous sentence than an equal term of commitm ent to the DOC. Jack son argues that the illegal portion of his original sentence should be stricken. ¶8 Before we address the merits of Jackso n’s claim, we first must resolve two procedural issues raised by the State. Th e State first argues that the District Court improperly considered Jackson’ s challenge to his illegal sent ence as a petition for writ for habeas corpus. The State asse rts that Jackson cannot use habeas corpus proceedings to “collaterally attack” his sentence. The State argues that Jack son’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 Jackso n’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 su spended.” Any person imprisoned in Montana may “prosecute a writ of habeas corpus to inquire into the caus e of imprisonment or restraint and, if illegal, to be delivered from the imprisonment or restra int.” 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 contai ned in § 46-22-101(2), MCA, stands in tension with the constitutiona l provision in Article II, Section 19 of the Montana Constitution, that “the writ of habeas corpus shall never be suspended.” We determined

4in 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, unconstituti onally suspended the writ of habeas corpus. We further concluded that th e incarceration of a person under a facially invalid sentence—including a sentence that exceeded the statut ory 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 exceed ed the statutory parameters of § 46-18-201(3)(d)(i), MCA. The State argued that re-sentencing Jackson re presented the proper remedy. The writ of habeas corpus constitutes the proper remedy for addressing Ja ckson’s “grievous wrong.”
Lott , ¶ 22. The court re-senten ced Jackson on January 12, 20 06, 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 cha llenge 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 activel y acquiesced to the sentencing condition. The State contends that Jackson actively acquiesced to his illegal sentence by agreeing to the sentence in a plea agreem ent with the State and, ther efore, waived his right to challenge the sentence. The State argues th at 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 challe nge at the time that he filed his petition for writ of habeas corpus in the sentencing cour t. The State admitted to the sentencing court that Jackson had received an illegal sentence and that th e proper “remedy is to re-sentence the defendant.” Judicial estoppel binds the State to its judicial admiss ions 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. Th e State cannot argue now that the District Court improperly ordered Jackson to be re-sen tenced 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 cha nging his sentence from a six-year DOC commitment to six years incarcer ation in MSP. Due process requires a court to base a more burdensome re-sentence on “objective in formation concerning identifiable conduct of the defendant after the origin al 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 th e 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 burde nsome 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 sent ence from a DOC commitment to a

6term 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 Ja ckson less flexibility than his original commitment to the
DOC. Tracy , ¶ 18. The change in Jackson’s senten ce 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 de void 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

7We 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 automatic ally 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 dete rmine 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 or dered 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 sent ence 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 co mpleted Phase I and was in the process of completing Phase II of the Sexual Offender Prog ram when he initiated this litigation to challenge his sentence, leading to his resent encing. The District Court then sentenced Jackson to six years in MSP, with cred it for time served, a nd imposed the same conditions as the original sentence, including that he complete Ph ases I and II of the

8Sexual Offender Program before he would be come eligible for pa role, and would be subject to the same list of ot her parole conditions as ordere d under the original sentence. ¶20 Under these circumstances, Jackson’s new sentence was not more onerous. His original sentence, though a DOC commitment, contained pr ovisions making it as onerous as his second sentence. Though not a direct commitment to MSP, hi s original sentence required imprisonment by virtue of its conditions, making Jack son ineligible for parole until he had completed Phases I and II of th e Sexual Offender Program within prison. Upon resentencing, the District Court simp ly 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 of fender program before becoming eligible for release. As a practical matter, th e new sentence was not less flexible th an 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