# INTHESUPREMECOURTOFTHESTATEOFMONTANA
OP 21-0393
DOMINIC KEITH LEE,

Petitioner,

v. STA 1.E, OF MONTANA, BOB OLSON,Administrator, S.T.A.R.T., Respondents. 

# FILED AUG 1 7 2021

BON/Verl Greenwood Clerk of Supreme Court State of Montana ORDER

Representing himself, Dominic Keith Lee has filed a Petition for Writ ofHabeas Corpus, requesting release after his March 2021 arrest that led to the revocation of his conditional release. Lee contends that his incarceration is illegal and that he should be returned to his former custody level. He asserts violations ofconstitutional due process, state law, and policy ofthe Department ofCorrections (DOC). We amend the caption to include the Administrator's name ofthe S.T.A.R.T.program where Lee is placed.I Lee explains that he was arrested on March 19, 2021, for felony assault with a weapon and transporthd to Flathead County Jail. Lee was on conditional release, or probation, at the fime. While in jail, Lee received verbal notice of a hearing from his Probation and Parole Officer. Lee states thatthe hearing occurred on March 31,2021,and that his Probation and Parole Officer,PO IIDavid Dowell,and himselfwere present. Lee provides that: "There was 'one singular violation' presented by the [DOC],that being an arrest for a felony. The hearing was recorded. David Dowell revokes Mr. Lee[']s conditional release and in that hearing said that ifthe felony was dismissed, dropped to a'

I S.T.A.R.T.stands for Sanction Treatment Assessment Revocation and Transition,an offender housing and services program with direct supervision,located in Anaconda,Montana. 08/17/2021

Case Number: OP 21-0393lower charge,or acquittal then I would be released back to my previous custody level but

possibly with a GPS monitor." Lee contends that "the lone revocation charge ofthe felony arrest was dismissed" which should vacate the hearing and its results. He cites to HB 66 and the 2017 legislative changes to the probation statutes. See §§ 46-23-1015,and 46-23-1028,MCA (2017). Lee argues that the grid, Montana Incentives and Interventions Grid (MIIG), should apply to him when imposing a sanction. Lee states that he has soughtresolution through the DOC to no avail. Lee further contends that his due process rights have been violated. We requested and reviewed the dockets and judgments from the Flathead County District Court. On February 23, 2018, the District Court sentenced Lee to the DOC for seven years with two years suspended for felony criminal endangerment after he entered a guilty plea in November 2017. Lee did not appeal or seek sentence review. The'last docketed activity was May 31,2018,when Lee's counsel filed aNotice ofTermination of Attorney/ClientRelationship. The State ofMontana filed new charges in March 2021. On June 17, 2021, the District Court accepted Lee's guilty plea to misdemeanor disorderly conduct and misdemeanor criminal mischief, imposing a fine and restitution. The court sentenced him to the Flathead County Jail for 180 days suspended for the second misdemeanor and awarded credit for 86 days oftimepreviously in custody. Lee is correct that his felony was reduced to a misdemeanor charge, but he is incorrect that he should be restored to conditional release. The issue is whether the 2017 statutes and its amendments concerning MIIG apply to Lee. We conclude that the 2017 statutes do not apply here because the amendments became effective on May 19, 2017. Section 46-23-1015,MCA (2017 Mont.Laws ch. 390, § 13). Lee committed the offense of felony criminal endangerment on April 16, 2017, in Flathead County, before the amendment's effective date. The 2015 versions of§§ 46-23-1012,and 46-23-1015,MCA, apply to him. Lee violated his condition of probation when he was arrested for a new offense. Section 46-23-1012(1), MCA (2015). Lee is entitled to an "informal probation violation 2intervention hearine when his Probation and Parole Officer becomes aware of a new

offense. Sections 46-23-1012(3)(b) and 46-23-1015, MCA (2015).

-A conditional discharge may be revoked if, within the tiinc remaining on the sentence that was conditionally discharged,the individual[,] . . . is charged with a misdemeanor offense for which the individual could be sentenced to incarceration for a period of more than 6 months[1" Lee was convicted oftwo misdemeanors and received a suspended sentence of six months. Lee rnay be placed in a day reporting program,pursuant to § 46-23-1015(3), MCA. See also § 53-1-203,MCA (2015). Lee has notdemonstrated illegal incarceration,and he is not entitled to relief. Miller
v. Eleventh JudicialDist. Ct., 2007 MT 58,'1114, 336 Mont.207, 154 P.3d 1186. There is
no other resolution because the DOC has authority to revoke his conditional release. Section 46-23-1020(2),MCA. Lee is notentitled to his release or a recording ofthehearing because his confinement is legal. We conclude that his due process rights have not been violated nor have violations occurred under DOC policy or state law. IT IS ORDERED that Lee's Petition for Writ ofHabeas Corpus is DENIED and DISMISSED. The Clerk ofthe Supreme Courtis directed to provide a copy ofthis Orderto counsel ofrecord;to Bob Olson,Program Administrator,801 MTHwy.48,Anaconda,MT,59711; and to Dominic Keith Lee at the address provided. DATED this day ofAugust,2021.

ChiefJustice 

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