IN THE SUPREME COURT OF THE STATE OF MONTANA

BARRY ALAN SCHILLING,

Petitioner,

v.

LYNN GUYER, Warden.

Montana State Prison.

Respondent.

OP 20-0134

FILED

MAR 2 5 2020

Bowen Greenwood

Clerk of Suprerne Court

State of Montana

ORDER

Barry Alan Schilling represents himself in this petition for a writ of habeas corpus

where he challenges a failure to expunge a 2016 conviction of criminal endangerment and

his prior driving under the influence of alcohol (DUI) convictions from the State of

Colorado.

On Jul) 6, 2016, the Tenth Judicial District Court, Fergus County, held a

dispositional and sentencing hearing for Schilling. The District Court initially advised

Schilling of his rights under a plea agreement and about the Veterans Court in Cascade

County.' Schilling entered a guilty plea to felony criminal endangerment, and the District

Court irnposed a suspended five-year sentence to the Department of Corrections (DOC).

The District Court included this condition in its Sentencing Order:

20. The Defendant shall enter and successfully complete the Montana Eighth

Judicial District Court, Cascade County Veterans Treatment Court.

Schilling completed Veterans Court in early 2018 and then reoffended. On

November 14. 2018, the Eighth Judicial District Court, Cascade County, imposed a

The Honorable Gregory R. Pinski presided over both of Schilling's criminal matters at issue

here.

03/25/2020

Case Number: OP 20-0134
suspended three-year sentence to the DOC for felony DUI and awarded 204 days of credit

for time served.

In his petition, Schilling raises two main issues. First, Schilling contends that his

criminal endangerment conviction was expunged when he completed Veterans Treatment

Court in Cascade County and points to Exhibit B, attached to his petition. He adds that he

has a liberty interest in parole because of the "contract" expunging his conviction. He

further argues that his DUI sentence is invalid because it is was enhanced improperly in

part due to three prior DWAI (driving while ability impaired) convictions from Colorado.

He refers to a 2002 Montana Supreme Court case, providing that "because Colorado's

DWAI provision allows a person to be convicted under a lower standard than that required

under Montana's DUI statute, McNally's prior convictions in Colorado do not constitute

`convictions for a violation of a similar statute . . . in another state,' as required under

§ 61-8-734(1)(a), MCA, and therefore do not qualify as convictions for the purpose of

enhancing McNally's DUI conviction to a felony." State v. McNally, 2002 MT 160, ¶ 22,

310 Mont. 396, 50 P.3d 1080. Schilling requests release from prison because of the

DUI enhancement and his terminal liver cancer.

Upon review of his attachments, Schilling has misinterpreted their meaning.

There was no failure to expunge his criminal endangerment conviction. Exhibit A is the

DOC's Initial Classification Instrument for placement at Montana State Prison, dated

August20, 2019. This document lists Schilling's most serious current conviction as

criminal endangerment with a five-year suspended sentence. It also lists his 2018 DUI.

Exhibit B is an Order from the Fergus County District Court addressing his 2016 criminal

endangerment case. Schillink misunderstands the effect of the District Court' s Order. On

February 27, 2018, the Fergus County District Court issued an Order Discharging

Probation because Schilling successfully completed the Eighth Judicial District Veterans'

Court. The Order's effect was to discharge Schilling from completing his probationary

time in his Fergus County criminal case (Cause No. DC-2016-25). His criminal

endangerment conviction was not expunged, and thus, this offense would still appear in his

record, as demonstrated in the Initial Classification Instrument or Exhibit A.

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"Parole . . . is a discretionary grant of freedom from incarceration." McDermott v.

McDonald, 2001 MT 89, ¶ 24, 305 Mont. 166, 24 P.3d 200. The Board of Pardons and

Parole may consider many factors when deciding to grant nonmedical parole.

Section 46-23-208(4), MCA. It is not clear whether Schilling has sought medical parole

for his liver cancer. Section 46-23-210, MCA. We point out, however, that Schilling has

no liberty interest in parole, as he asserts. Such a liberty interest applies to crimes

committed before 1989. McDermott, ¶ 8.

Lastly, Schilling's challenges concerning the validity of his prior convictions must

be brought in a direct appeal. See State v. Lund, 2020 MT 53, ¶¶ 1, 14, Mont. ,

P.3d . Schilling did not appeal and has exhausted this remedy, thereby foreclosing

any collateral attack to his 2018 DUI conviction or sentence. Section 46-22-101(2), MCA.

Schilling has not demonstrated that he is entitled to parole or habeas corpus relief.

He has not demonstrated that he is illegally incarcerated. Section 46-22-101(1), MCA.

Therefore,

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

The Clerk is directed to provide a copy of this Order to counsel of record and to

Barry Alan Schilling personally.

DATED this 2LA striy of March, 2020.

Chief Justice

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