### 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

Bowerl GIeellwoOd Clerk of Supreme Court State of tvloritaria Representing himself, Anthony Scott Charlie has filed a Petition for a Writ of Habeas Corpus,contending thathis "sentence is illegal because PersistentFelony Offender is mandatory rninimum sentence of5 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 abouthis sentencing history and his understanding ofapplicable 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 ofCorrections (DOC)for crirninal possession ofdangerous 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 ofthe 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 21-0159violation 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),pursuantto § 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 ofthe legality ofCharlie'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 aPFO 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 ofnot less than 5 years or more than 100 years . . . ,ifthe offender was 21 years of age or older at the time ofthe commission ofthe present offense." Charlie
never had a commitment to the DOC. Pursuant to § 46-18-502(3), MCA (2007), "the imposition or execution ofthe first 5 years ofa 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 ofthe sentence provided in the written judgment. Charlie is mistaken. Given that he appealed his conviction and sentence,he did not raise the issue ofan alleged conflict. 2

### 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 10years suspended." Charlie, ¶ 12. Charlie is notentitled to a writ ofhabeas 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 ofappeal. He isprecluded 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 ofHabeas Corpus is DENIED. The Clerk is directed to provide a copy ofthis Orderto Captain Rauser,Broadwater County Detention Center;to counsel ofrecord,and to Anthony Scott Charlie personally at his last known address DATED this day ofApril,2021.
ChiefJustice



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Justices

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