INTHESUPREMECOURTOFTHESTATEOFMONTANAOP22-0045RUSSELLSCOTTAVERY,Petitioner,v.JIMSALMONSEN,Warden,MONTANASTATEPRISON,Respondent.MAR222022BowenGreenwoodClerkofSupremeCourtStateofMontanaORDERRepresentinghimself,RussellScottAverypetitionsthisCourtforhabeascorpusrelief,allegingthattheMissoulaCountyDistrictCourtrevokedhisparole.IncompliancewiththisCourt'sFebruary3,2022Order,theDepartmentofCorrections(theDepartrnent)respondsthatAveryhasnotdernonstratedillegalincarcerationandthathisPetitionshouldbedenied.Section46-22-101(2),MCA.InMay2012,theMissoulaCountyDistrictCourtsentencedAverytotheMontanaStatePrison(MSP)forthirtyyearswithtwentyyearssuspendedforfelonysexualintercoursewithoutconsent.TheBoardofPardonsandParole(Board)grantedAveryparoleonApril14,2020.InMarch2021,heviolatedhisparoleinLewisandClarkCountywhenhewaschargedwithanewoffense,criminalpossessionofdangerousdrugs.OnMay25,2021,theMissoulaCountyDistrictCourtrevokedhis2012sentencebecauseAveryviolatedhisconditions.ThecourtcommittedhimtotheDOCfortwentyyearswithseventeenyearssuspended.InaseparateproceedingonJuly21,2021,theBoardrevokedAvery'sparolebecauseheviolatedlawsandconduct,usedillegaldrugs,andassociatedwithotherprobationersandparolees.AverystatesthattheMissoulaCounty"DistrictCourtViolated[his]DueProcessRightswhenitUnilaterally[superseded]theStatutoryAuthorityoftheStateBoardofParoleandrevoked[his]April14,2020[]Parole."AverycontendsthatinsteadofhavingtheBoardrevokehisparole,theDistrictCourtrevokedhis"suspendedsentence"and03/22/2022Case Number: OP 22-0045imposed

a new sentence. Avery notes

in his Petition

that

at his May 25, 2021, revocation hearing before

the District Court,

he argued
that

as

a parolee

he was under
the Jurisdiction of the Parole Board
and the District Court lacked jurisdiction

to revoke
hirn because

"I have not began [sic] my suspended sentence untill [sic] September, 2021." Avery

is correct
that the Board retained jurisdiction

over
his parole status.

But contrary

to Avery's contention,

the District Court

did not supersede

the Board's statutory authority

by revoking

his parole.

The District Court revoked Avery's suspended sentence and reimposed

a twenty-year sentence

with seventeen
years suspended.
While

it is true that Avery
had not yet begun serving

the suspended portion

of his originally imposed sentence,

§ 46-18-203(2),

MCA, allows

for

a petition

to revoke

a suspended sentence "either before

the period

of suspension

.

.

. has begun

or during

the period

of suspension." State

v. Graves,
2015 MT 262,

¶ 14, 381 Mont.

37, 355 P.3d 769 (quoting § 46-18-203(2),
MCA). Avery

has not demonstrated

illegal incarceration

or that
he

is entitled

to habeas corpus relief. Section 46-22-101(1),

MCA.

He has not shown violations

of his constitutional

rights, such

as due process. Avery was subject

to the jurisdiction

of both the District Court and the Board. Avery violated

his parole with

a non-compliance violation, resulting

in two separate revocation processes.

The District Court had statutory authority to revoke

his twenty-year suspended sentence. Section 46-18-203(7)(a)(iii),

MCA.
The District Court
did not revoke

his parole because

that

is the province

of the Board. Section 46-23-1025(3)(c),

MCA. Therefore, IT IS ORDERED

that Avery's Petition

for Writ

of Habeas Corpus

is DENIED

and DISMISSED. The Clerk

is directed

to provide

a copy

of this Order

to counsel

of record
and

to Russell Scott Avery personally. DATED

this Z_Z day
of March, 2022.

2

Chief Justice):1//:‘:;,6&*--Justices3