# ORIGINAL
IN THE SUPREME COURT OF THE STATE OF MONTANA OP 23-0348
WAYNE A. AVILES,

Petitioner,

v. CAPTAIN JASON KOWALSKI,

Respondent. 

### JUL 1 1 2023 Bowen G
- -..::erwood Clerk of ...Dreme Court State of Mc

- Into na 

### ORDER

Wayne A. Aviles, representing himself, has filed a Petition for Writ of Habeas Corpus along with attachments. Aviles indicates that his sentence is illegal because it violates his right tobe free from doublejeopardy,resulting in illegal incarceration. On October 10, 2017, the Tenth Judicial District Court, Fergus County, sentenced Aviles for felony sexual intercourse without consent to the Department of Corrections (DOC) for an unsuspended, ten-year term. The District Court later amended the sentence on the State's motion,holdingahearingon January 4, 2018, and imposingaten-yearDOC term with five years suspended. Aviles did not appeal. In open court on May 24, 2022, the District Court revoked Aviles's suspended sentence because ofviolations. The court imposed an unsuspended, five-year term and awarded credit for time served as well as street time. Aviles did not appeal his sentence upon revocation. In his current petition, Aviles refers to this Court's previous Order in which we denied him habeascorpus reliefbecausehe was challenginghis sentence upon revocation, which is barred under Montana law. Section 46-22-101(2), MCA. Aviles contends that this Court is incorrect in its ruling. Aviles raises six issues: (1) he contends his claims are not procedurally barred pursuant toHamilton v. State, No. DA 21-0482, 2022 MT 107N, 2022 Mont. LEXIS 506 (May 31, 2022); (2) ineffective assistance ofcounsel; (3) conflict ofinterest (bias) from 07/11/2023

Case Number: OP 23-0348former Judge; (4) conflict of interest (bias) from psychosexual evaluator; (5) all other

Previous violations in his prior petition; and (6) actual innocence. Aviles requests a "video-court session to be allowed to argue these points
. . ." and to put forth "[n]ewly discovered evidence
. . . ." Aviles misconstrues Montana law. This Court has explained twice before that Aviles cannot raise these claims through a remedy ofhabeas corpus. As we explained in denying his previous petition in March of this year: "Upon review, Aviles's five-year unsuspended sentence islawful andvalidbecause itisa sentenceuponrevocation." Aviles
v. Kowalski, No. OP 23-0116, Order, at 2 (Mont. Mar. 7, 2023) (AvilesI). "Aviles is not entitled to his requests of exoneration, dismissal of charges, release, or restitution." AvilesI, at 2. We explained all of this again in denying his petition for rehearing. Aviles v. Kowalski, No. OP 23-0116, Order (Mont. Apr. 11, 2023) (Aviles II). "We explainedthathis2022sentenceuponrevocationdoesnotsubjecthimto doublejeopardy." AvilesII, at 2. We refused then to address his Memorandum that he attaches again to his instantpetition. AvilesII, at 1-2. Nothinghas changed sinceMareh. Aviles's claims would have been more appropriately raised in a direct appeal. As noted previously, Aviles never appealed his sentence in 2017 or his sentence upon revocation in2022. He cannot raisethese claims challenginghis conviction now. Section 46-22-101(2), MCA. Aviles's reference to Hamilton is unavailing because Hamilton appealed the denial of his petition for postconviction relief concerning his ineffective assistance ofcounsel claims. Earlier this year, this Court informed Aviles that he hadthe option to file a petition for postconviction relief concerning his claims of ineffective assistance ofcounsel in the sentencing court. AvilesI, at 2. We remind Aviles that he doesnot have a direct appeal inthis Court. He brings an original proceeding where he persists in bringing inappropriate claims. His claims are procedurally barred under this writ, pursuant to § 46-22-101(2), MCA, and therefore, improperly raised. 2

### We conclude that Aviles has not demonstrated an illegal sentence or illegal

incarceration. Therefore, IT IS ORDEREDthat Aviles's Petition for Writ ofHabeas Corpus is DENIED and DISMISSED. IT IS FURTHER ORDERED that thismatter is CLOSED as ofthis Order's date. The Clerk of the Supreme Court is directed to provide a copy of this Order to: Captain Kowalski, counsel ofrecord, and Wayne Anthony Avilespersonally. DATED this 7e

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day ofJuly, 2023.

ChiefJustice

A

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