# D ORIGINM,

IN THE SUPREME COURT OF THE STATE OF MONTANA OP 24-0465
DARREN C. DEMARIE,

Petitioner,

v. J.D. GODFREY, WARDEN, CROSSROADS CORRECTIONAL CENTER,

Respondent. ORDER

Darren C.De

Mariepetitionsthis Court forhabeas corpus relief, arguingthathewas improperly prosecuted in the Thirteenth Judicial District Court, Yellowstone County. DeMarie asserts that he "recently discovered" this problem in his criminal case (Cause Number DC-91-261). De Marie argues that he was "improperly prosecuted"because "the [S]tate failed to indict [him] by Grand Jury"and he never signed a "Waiver ofIndictment by Grand Jury." As supporting authority for his argument, DeMarie cites Makin v. US., 117 U.S. 348, 6 S. Ct. 777 (1886). In June 1991, the State of Montana charged DeMarie with felony deliberate hornicide by seeking leave to file an Information in Yellowstone County. On November 19, 1992, after accepting his earlier guilty plea, the District Court sentenced DeMarie to 100 years in theMontana StatePrison. The court awarded 534 days ofcredit fortime served and imposed aparole ineligibility restriction ofseventeen and ahalfyears. DeMarie did not appeal. In November 2022, the Powell County District Court sentenced DeMarie for two felonies, including conspiracy to commit escape. He received two concurrent, eight-year terms to run consecutively to his prior sentence. Through counsel, DeMariehas an appeal pending with this Court on his Powell County case. State v. DeMarie,No.DA 23-0017. 08/27/2024

Case Number: OP 24-0465DeMarie argues that because he was not indicted by a grand jury, his deliberate

homicide conviction cannot stand. De Marie requests his immediate release from prison and expungement ofall charges. He also requeststhe "release and disrnissal ofcharges for all similarly situated Persons, Individuals, and Citizens ofthese United States ofAmerica beingunlawfully held by the State ofMontana[.]" (Emphasis in original). This Court has heard this argument before. State v. Montgomery, 2015 MT 151, 379 Mont. 353, 350 P.3d 77. Almost a decade ago, we explained that the U.S. Constitution's "FifthAmendment'sgrandjuryrequirementhas notbeen construedto apply to the states." Montgomery, ¶9. DeMarie's premise and basis for his writ have no merit. In Montgomery, we pointed to more recent United States Supreme Court case law, distinguishing the grand jury requirement for indictment in federal cases as opposed to state cases. Montgomery, ¶9 (citingApprendi v. New Jersey, 530 U.S. 466, 477 n.3, 120 S. Ct. 2348, 2355 n.3 (2000) (noting that the Fourteenth Amendment "has not
. . . been construed to include the Fifth Amendment right to 'presentment or indictment ofa Grand Jury.

. . .'")). The Montana Legislature has provided a statutory scheme for felony prosecution. This Court has held that Montana statutes offer four methods to commence a prosecution in this state, one of which is "an information after leave of court has been granted[d" Montgomery, 

## ¶11; §, 46-11-101(3), MCA. In Montana, an information is one method to charge an offender with a criminal offense—misdemeanor or felony—under statute. Section 46-11-101(3), MCA. "`[A] defendant is not entitled to any specific procedure.'" Montgomery, ¶ 11 (citingState v. Haller, 2013 MT 199, ¶ 8, 371 Mont. 86, 306 P.3d 338) (internal citation omitted). Ifthe Statecommencesprosecutionby filingan application and
an affidavit that identifies supporting evidence demonstrating probable cause, the district courthas subjectmatterjurisdiction toproceed "overthe felonies as stated inMont. Const. art. VII, §4(1) and § 3-5-302(1)(a),MCAH" Montgomery, ¶ 11. The State of Montana cornmenced DeMarie's felony prosecution according to Montana's Constitution and under its applicable statutory scheme by filing an application which includes an information for leave of court along with an affidavit supported by 2evidence. Section 46-11-201(2), MCA (1989). See also Montgomery, T11 9-11; Mont.

Const. art. II, § 20(1); §§ 46-11-101(3), and 46-11-102(1), MCA. The District Court had subject matterjurisdiction. The State was not required to obtain DeMarie's waiver ofhis right to indictment by grandjury becausehe had no right to indictment by grandjury. DeMarie cannot request relief for or otherwise represent "similarly situated" persons becausehe is not a licensed attorney. Section 37-61-201, MCA. DeMarie has not demonstrated illegal incarceration. Section 46-22-101(1), MCA. DeMarie was not improperly prosecuted, and his conviction is not void. DeMarie has a lawful sentence, and he is not entitled to his release. Therefore; IT IS ORDERED that DeMarie's Petition for Writ ofHabeas Corpus is DENIED and DISMISSED. IT IS FURTHER ORDERED that this case is CLOSED as ofthis Order's date. The Clerk is directed to provide a copy of this Order to counsel ofrecord and to Darren CharlesDeMarie pmnally. DATED this 

## a_R-- day ofAugust, 2024. 

# FILED AUG 27 2024 Bowen Greenwood Clerk of Supreme Court State of Montana

3 

# e, ge.

Justices