# ORNINAL

IN THE SUPREME COURT OF THE STATE OF MONTANA OP 21-0385

BRODY LUCAS BOLES

Petitioner, 

# FILED AUG 1 7 2021
Bowen Greenwooa Clerk of Supreme Court State of Montana



### v. ORDER JIM SALMONSEN,Warden, Montana State Prison,

Respondent
Brody Lucas Boles petitions this Court for habeas corpus relief,contending that the Board of Pardons and Parole (Board) violated his Due Process rights when the Board denied him parole on June 16, 2021. Boles states that he had asked for a continuance of his appearance while he awaited delivery ofan updated chemical dependency evaluation and outpatienttreatmentplan and thathe requested thathis "parole hearing be continued at a laterdate[J" Citing to McDermottv. McDonald,Boles argues that the Board's actions violated his rights and "that parole cannot be denied without due process." 2001 MT 89, 305 Mont. 166,24 P.3d 200. Bolesrequests that this Courtremand the matter to the Board for further consideration. Heprovides copies ofan affidavit,his aftercare plan,evaluation, and corresponding needs assessment. Boles does not provide a copy of his Case Disposition from the Board. Available electronic records indicate that Boles has four criminal cases from the Gallatin County District Court. In 2012, the District Court deferred imposition of concurrent,six-year terms for felony stalking and aggravated burglary. In 2014,because ofa new offense,the court revoked the Sentencing Order deferring imposition ofsentence and imposed concurrent,ten-year terms to the Department ofCorrections(DOC) with five yearssuspended. Thecourtalso committed Bolesto the DOCfor felony aggravated assault to a concurrent,ten-year term,with five years suspended. 08/17/2021

Case Number: OP 21-0385In 2018, the State of Montana charged Boles with six offenses, including sexual

abuse of children, strangulation, and partner or family member assault, in the Gallatin County District Court. In 2019 the State charged Boles with criminal possession of dangerous drugs. On October 1, 2020, the District Court sentenced Boles for felony strangulation to the Montana State Prison (MSP)for a concurrent,five-year term,and the court sentenced him to MSP for a consecutive, five-year term for criminal possession of dangerous drugs. "There is no absolute standard for what constitutes due process." McDermott,¶ 10. This.Court has articulated that in a parole hearing, while the due process protections are less stringent than a criminal proceeding in a court oflaw,the protections do exist and are defined by two main elements: an appearance, or opportunity to be heard, and written notice of the Board's decision. McDermott, ¶ 11. "It is well established that a parole release determination is not subjectto all the due process protections required to convict or confine.
. . . Nor must a parole release determination provide the sarne due process protections as are required in a parole revocation hearing." McDermott, ¶ 11 (citations omitted). "[T]he United States Supreme Court has held that due process is satisfied when the prisoner seeking parole is,at a minimum,provided with an opportunity to be heard and
a written statement explaining why he was denied parole." McDermott, ¶ 11 (citing Greenholtz v. Inmates ofthe Nebr. Penal Complex,442 U.S. 1, 16, 99 S. Ct. 2100, 2108 (1979);Sage v. Gamble,279 Mont.459,465,929 P.2d 822,825 (1996)). We obtained a copy of Boles's Case Disposition. Boles's claims do not rise to violations ofhis due process rights. Boles appeared before the Board on June 16, 2021. The Board denied his parole at his initial appearance and passed him to discharge— November 27,2023. See Admin.R.M.20.25.501(2)(f)(2012)(The Board's hearing panel may pass the offender to discharge when the date is less than six years away). The Board based its conclusions on the nature and severity of the offenses, his previous criminal history,multiple offenses,poor history in community placement and/or under supervision, and strong objection from criminal justice authorities and/or citizenry. See 2Admin.R.M.20.25.505(2)(a)and (2)(p)(2016). The Board remarked that "Parole at this

time would diminish the severity ofthe crime." While notprovided with his Petition,Boles received a written decision ofwhy he was denied parole. We have stated several times that the Board has broad authority to consider all factors relating to an offender. "As a complement to its broad discretion to grant,deny,or condition parole,the Board is authorized to consider factors that may not be considered by the district court at trial and sentencing." McDermott, ¶ 20. At an initial hearing, "the hearing panel shall consider all available and pertinent information regarding the prisoner,including:" (1)the circumstances ofthe offense; (2) the prisoner's previous social history and criminal record; (3) the prisoner's conduct,employment,and attitude in prison; (4) the reports of any physical, psychological, and mental evaluations that have been made;and (5) written or oral statements from criminal justice authorities or any other interested person or the interested person's legal representative, including written or oral statements from a victim regarding the effects ofthe crime on the victim. []. Section 46-23-202,MCA (2011). While the Board may considerpsychological and mental evaluations, Boles does not address whether he informed the Board of any updated evaluations. In light ofthe many reasons the Board gave for denying Boles parole, it is doubtful that any other information would have persuaded the Board differently in any event. Lastly,we point out thatBoles's remedy would be with the Board. Boles may seek reconsideration with the Board, in writing and within sixty days of its decision, pursuant to Admin. R. M. 20.25.501(7) (2012), "NI'the offender can present evidence that the hearing panel's decision was based on erroneous or false information[d" Boles has not demonstrated illegal incarceration. Section 46-22-101(1),MCA. He has not demonstrated a violation ofhis due process rights with the Board's denial ofhis parole in June. Accordingly,
3IT IS ORDERED that Boles's Petition for Writ ofHabeas Corpus is DENIED and

DISMISSED. The Clerk is directed to provide a copy ofthis Order to counsel ofrecord and to Brody Lucas Boles personally. DATED this 1

-day ofAugust, 2021.



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