IN THE SUPREME COURT OF THE STATE OF MONTANA

ANTHONY SCOTT CHARLIE,

Petitioner,

v.

OP 21-0159

CAPTAIN RAUSER,

BROADWATER COUNTY DETENTION

CENTER, and STATE OF MONTANA,

Respondents.

ORDER

APR 1 3 2021

Bowe rl GI eellwoOd

Clerk of Supreme Court

State of tvloritaria

Representing himself, Anthony Scott Charlie has filed a Petition for a Writ of

Habeas Corpus, contending that his "sentence is illegal because Persistent Felony Offender

is mandatory rninimum sentence of 5 yrs. M.S.P." He states that he is entitled to a writ of

habeas corpus, pursuant to § 46-22-101(1), MCA.

Charlie offers a lengthy narrative about his sentencing history and his understanding

of applicable law. Charlie explains that on June 16, 2009, he was sentenced in the Fourth

Judicial District Court, Missoula County, and received a fifteen-year commitment to the

Department of Corrections (DOC) for crirninal possession of dangerous drugs. He states

that the sentence was "enhanced" with ten years suspended for persistent felony offender

to the Montana State Prison (MSP). His arguments are two-fold: (1) that pursuant to

§ 46-18-502, MCA, the ten-year suspended portion of the sentence is illegal; and (2) that

the oral pronouncement of sentence conflicted with the written judgment. He does not

include any attachments.

In June 2008, the State of Montana charged Charlie with two counts—felony

criminal possession with intent to distribute and misdemeanor criminal possession of

dangerous drugs—in Missoula County. In 2009, the State added the alternative felony

charge of criminal possession of dangerous drugs — not otherwise provided for — in

04/13/2021

Case Number: OP 21-0159
violation of § 45-9-102(6), MCA. In March 2009, a jury found Charlie guilty of the

alternative possession charge. The District Court sentenced Charlie to MSP for fifteen

years with ten years suspended. The District Court found Charlie as a persistent felony

offender (PFO), pursuant to § 46-18-502, MCA. Charlie appealed his conviction. State v.

Charlie, 2010 MT 195, 357 Mont. 355, 239 P.3d 934.

This Court directly addressed the issue of the legality of Charlie's PFO sentence in

his appeal. Charlie, 111 62-64. Citing to § 46-18-501(2)(b), MCA (2007), this Court

concluded that "Charlie's sentencing as a PFO was within statutory parameters and

constitutes a legal sentence." Charlie, ¶ 64. We explained that

Charlie had been previously convicted of felony possession of a deadly

weapon by an inmate on August 16, 2001. Charlie was discharged from

prison and began serving his suspended sentence on October 1, 2003. His

current offense was committed on June 8, 2008. Under § 46-18-501(2)(b),

MCA, Charlie is a PFO because fewer than 5 years have elapsed between his

release from prison and his current offense."

Charlie, ¶ 64.

Charlie's sentence, contrary to his claims, is facially valid. Section 46-18-502(1),

MCA (2007), provides that "a persistent felony offender shall be imprisoned in the state

prison for a term of not less than 5 years or more than 100 years . . . , if the offender was

21 years of age or older at the time of the commission of the present offense." Charlie

never had a commitment to the DOC. Pursuant to § 46-18-502(3), MCA (2007), "the

imposition or execution of the first 5 years of a sentence imposed under subsection (1) of

this section . . . may not be deferred or suspended." Charlie's first five years are not

suspended; he must serve prison time, followed by ten years on probation. This sentence

must run consecutively to any other sentence imposed. Section 46-18-502(4), MCA

(2007).

Charlie claims that he heard the court pronounce an oral sentence of five years

instead of the sentence provided in the written judgment. Charlie is mistaken. Given that

he appealed his conviction and sentence, he did not raise the issue of an alleged conflict.

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No "shield" exists in § 46-18-116, MCA. His written judgment is clear as we referenced

in his appeal—"Charlie was given a 15-year sentence, with 10 years suspended." Charlie,

¶ 12.

Charlie is not entitled to a writ of habeas corpus. Charlie is doubly constrained here

under the statutes for habeas corpus relief. Charlie appealed his conviction and sentence

to this Court, thereby exhausting the remedy of appeal. He is precluded from attacking the

validity of the conviction or sentence now. Section 46-22-101(2), MCA. Charlie's

underlying sentence was revoked in 2020, and he is precluded from challenging that

sentence as well. Section 46-22-101(2), MCA. Accordingly,

IT IS ORDERED that Charlie's Petition for a Writ of Habeas Corpus is DENIED.

The Clerk is directed to provide a copy of this Order to Captain Rauser, Broadwater

County Detention Center; to counsel of record, and to Anthony Scott Charlie personally at

his last known 

address

DATED this day of April, 2021.

Chief Justice

PI A4 2,,IL 

Justices

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