IN THE SUPREME COURT OF THE STATE OF MONTANA OP 23-0104

GEORGE C. WELLS,

Petitioner, v. JAMES SALMONSEN, Warden, Montana State Prison,

Respondent. 

# FILED MAR 1 4 2023 Bowen Greenwood Clerk of Supreme Court Siete of Montana ORDER

GeorgeC. Wells has filed a petition entitled "Art. II § 19 Petition for Relief,"which seeks habeas corpus relief from his current sentence. He contends the sentence was imposed without lawful authority, but provides no legal precedent or authority demonstrating his sentence was illegally imposed. To the contrary, we have repeatedly explained and held that his current sentence is lawful. In 1982, Wells was convicted of aggravated assault, aggravated burglary, and attempted sexual intercoursewithout consent in the EighthJudicial District Court,Cascade County, and appealed. We affirmed. State v. Wells, 202 Mont. 337, 357, 658 P.2d 381, 391 (1983). Wells received a 150-year prison sentence. In September 2015, this Court granted Wells partial habeas corpus reliefand remanded his case for resentencingbecause the 2010 change in Montana law concerningpersistent felony offender (PFO)designations affected Wells's sentence. See Wells v. Kirkegard, No. OP 15-0466, Order, at 2-3 (Mont. Sept. 29, 2015) (quotingState v. Gunderson, 2010 MT 166,¶49, 357Mont. 142, 237 P.3d 74 (Gunderson II)) (Wells1). We explained about Wells's sentence: In its Judgment of Conviction, Sentence and Order, the Cascade County District Court designated Wells a persistent felony offender (PFO) under § 46-18-501, MCA. Wells received a twenty-year sentence for aggravated assault, a forty-year sentence for attempted sexual intercourse without consent, a forty-year sentence for aggravated burglary, and a fifty-year 03/14/2023

Case Number: OP 23-0104sentence for a persistent felony offender under § 46-18-502, MCA. All

sentences were to run consecutively. WellsI, at 1. Wells argued in WellsI that his PFO sentence, imposed along with his other sentences, was illegal under Gunderson, and the State conceded that resentencing was required. Pursuant to our Order, on April 20, 2016, the Cascade County District Court resentenced Wells for his felony convictions, and the court "did not sentence him as a PFO,"but, rather, imposed a 100-year sentence for Wells' convictions. Wells v. Fletcher, No. OP 17-0224, Order, at 1 (Mont. May 9, 2017) (WellsII). Wells petitioned for habeas corpus relief, but this Court denied the petition, stating Wells "has not demonstrated that his [2016] sentence is facially illegal." WellsII, at 2. Wells petitioned again in 2021, arguing that he should have been sentenced as a PFO because it was mandatory. This Court denied his petition, explaining that he was precluded from relief because he did not appeal his 2016 sentence, pursuant to § 46-22-101(2), MCA ("Thewrit ofhabeas corpus is not availableto attackthe validity of

a conviction or sentence ofa person who hasbeen adjudged guilty ofan offense in a court of record and has exhausted the remedy of appeal"), and that, in any event, his legal arguments were incorrect "because the law goveming PFO sentencing has changed since 2009." Wells v. Salmonsen, No. OP 21-0526, Order, at 1-2 (Mont. Nov. 9, 2021) (Wells III). Thereafter, Wells again soughtrelieffrom this Courtregardinghis sentence,which

we addressed in 2022. He requested reinstatement ofhis original fift y-year PFO sentence instead ofwhat he described as the "100-year PFO sentence" he received following this Court's remand of this case for re-sentencing in [Wells .1]." Wells v. Salmonsen, No. OP 22-0013, Order, at 1 (Mont. Jan. 25, 2022) (Wells IV). As explained above, Wells had received no such sentence in his resentencing. We reiterated that Wells was precluded from habeas corpus relief, and warned him that he should not seek fiirther reliefwith this Court concerning this sentence, stating "[w]e caution Wells to refrain from his repeated filings collaterally attacking his sentence." WellsIV, at 2. 2That brings us to Wells' current petition again challenging his sentence. Wells

attemptstopreempt thisCourt'scaution by nowarguingthat"thisCourt'sthreattosuspend George C. Wells' right to file under Art II § 19 is unconstitutional," because "the writ of habeas corpus shall never be suspend[ed]." Thewrit ofhabeascorpusshall notbesuspendedunderMontana'sConstitution, but that does not mean this Court is powerless to address abuse ofthe right. Wells's instant Petition, filed despite this Court's caution, again lacks merit, for he cannot demonstrate a faciallyinvalidsentence. Section46-22-101(1),MCA. Wellshasconfused andmisapplied Montana law. He is not entitled to the original fifly-year sentence as a PFO when that sentence was deerned illegal by this Court. We have explained this to Wells several times since 2017. Accordingly, IT IS ORDERED that Wells's Petition for Habeas Relief is DENIED and DISMISSED. IT IS FURTHER ORDERED that henceforth, prior to filing any original petition with this Court regardinghis 2016 sentence imposed on rernand, Wells is directed to file a motion for leave to file the petition. The motion must be sworn under oath before a notary public, not exceed three pages in length, and make a preliminary showing that the motion hasmerit and meets the criteriato state a prima facie case under M. R.App.P. 14(5). Only whenthisCourt has reviewed the motion andissued an order grantingleaveto filemaythe Clerk of the Suprerne Court file the petition. The Clerk shall reject any other original petition that Wells seeks to file and shall inforrn Wells accordingly. The Clerk is directed to provide a copy ofthis Order to counsel of record and to George C. Wells, along with a copy ofM. R. App. P. 14(5), for his reference. The Clerk is also directed to CLOSE this matter as ofthis Order's date. DATED this 

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—day ofMarch, 2023.

ChiefJustice

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