# ORIGINAL

IN THE SUPREME COURT OF THE STATE OF MONTANA OP 23-0603

DONALD W. PULST,

Petitioner,

v. STATE OF MONTANA,

Respondent. ORDER

# FILE OCT 31 2023
Bowen Greenwood Clerk of Supreme Court State of Montana Representing himself, Daniel Wayne Pulst has filed a Petition for Writ ofHabeas Corpus, indicating that he is entitled to good time that has not been credited against his sentence and that his incarceration is illegal. He states that he "compteted SOP-1 and SOP-2 and [he's]threatened with re-Incarceration if[he does] not complete it again."' He writes that none ofthe MSOTA counselors in the Great Falls area have Openings in their calendars to take him.2 Pulst requests a court order allowing hirn "to use the services of any licensed provider ifrequired by [his] parole officer." Some background is necessary here. Available electronic records indicate that, in 2013, ajury found Pulst guilty ofsexual intercoursewithout consent, two counts ofsexual assault, and misdemeanor indecent exposure. The Hill County District Court sentenced Pulst to concurrent prison terms: thirty years with twenty years suspended for the sexual intercoursewithout consent conviction and twenty years withtenyears suspended for each sexual assault conviction. He also received a six-month jail term for the misdemeanor. Pulst appealed. This Court affirmed in part, reversingthewrittenjudgmentto correct three conditions. State v. Pulst, 2015 MT 134, 379 Mont. 494, 351 P.3d 687 (PulstI).

I SOP is sex offender treatment prograrn, also offered atthe Montana State Prison.

2 MSOTA stands for Montana Sexual Offender Treatment Association. 10/31/2023

Case Number: OP 23-0603In 2017, the State sought to revoke the sentences for the sexual offense convictions.

The District Court held a hearing on the violations of his conditions and revoked his sentence. On March 29, 2018, the District Court sentenced him to twenty years at the Montana State Prison (MSP) with fourteen years suspended for the first felony, and the court imposed suspended, ten-yearsterms for thetwo sexual assault convictions. Pulst did not appeal. In January 2021, the State sought another revocation of Pulses sentence. The District Court resentenced Pulst. Through counsel, Pulst appealed. We reversed the revocation ofPulses2018 sentence andvacated the sentence imposed onFebruary 5, 2021. State v. Pulst, 2023 MT 162, ¶¶3, 14, 413 Mont. 197, 534 P.3d 128 (Pulst II). We stated that "[OleDistrict Court, in essence, found an anticipatoryprobation violation"when Pulst did not obtain a MSOTA clinicalmemberprior to his release into the communitywhenthe correlating condition did not require that. Pulst II, ¶6. We pointed out:

Pursuant to § 46-18-203(7), MCA, the District Court was required to find Pulst violated condition 10. dd. as a predicate to exercising its authority to impose a new sentence. Here, like Beam, the timeline for completing sex offender treatment by the condition's plain language is inconsistent with the State's position and the District Court's conclusion that Pulst violated condition 10. dd. The plain language of condition 10. dd. contained in the 2018 Order and Sentence requires Pulst enter and complete sex offender ' treatment within 3 years of release into the community, not that he have treatment lined up before his release. The District Court had no authority to revoke Pulst's sentence and impose a new sentence on the basis that Pulst did not have MSOTA sex offender treatment arranged prior to release to the suspended portion ofhis sentence as no such requirement was contained in condition 10. dd. ofthe 2018 Order and Sentence on Petition to Revoke. PulstII, ¶ 13. (Emphasis in original.) This Court re-imposed his sentence fromMarch 29, 2018. Here, instead of an anticipatory probation violation, we have anticipatory incarceration by Pulst. This Court observes that Pulst is not incarcerated. Since September 7, 2023,Pulsthasbeenunderthe supervision oftheProbation and Parole Office in Great Falls. The habeas corpus "statute allows a prisoner to challenge the legal sufficiency ofthe cause for incarceration." Gatesv. Missoula County Comm 'rs,235Mont. 2

### 261,262,766P.2d 884, 884 (1988). Pulsthasnot allegedthatthe cause ofhis incarceration

is unlawful. We remind Pulst that he must enter and complete sex offender treatment in the community within three years, accordingto the March 29, 2018 Order and Sentence. Pulst's remedy is not with this Court. Pulst is not entitled to good time credit because he committed his offenses well after 1995. His attached sentence calculation reflects that the MSP Records Department updated his sentences on September 7, 2023. Pulst is under the supervision ofthe Department ofCorrections (DOC), whether he is on probation orparole. Sections46-23-10I1 and-1021,MCA. Hisremedy lieswiththeDOC. He may work with his supervising officer and place his request in writing to the DOC concerning the lack of available treatment providers where he has been placed. Accordingly, IT IS ORDERED that Pulst's Petition for Writ ofHabeas Corpus is DENIED and DISMISSED. The Clerk is also directed to provide a copy to counsel of record and to Daniel Wayne Pulst personally. DATED this I( day ofOctober, 2023.

3 ChiefJustice