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 of an updated chemical dependency evaluation

and outpatient treatment plan and that he requested that his "parole hearing be continued

at a later date[J" Citing to McDermott v. 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. Boles requests that this Court remand the matter to the Board

for further consideration. He provides copies of an 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

of a new offense, the court revoked the Sentencing Order deferring imposition of sentence

and imposed concurrent, ten-year terms to the Department of Corrections (DOC) with five

years suspended. The court also committed Boles to the DOC for felony aggravated assault

to a concurrent, ten-year term, with five years suspended.

08/17/2021

Case Number: OP 21-0385
In 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 of law, 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 subject to 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 of the 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 of his 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

2
Admin. R. M. 20.25.505(2)(a) and (2)(p) (2016). The Board remarked that "Parole at this

time would diminish the severity of the crime." While not provided with his Petition, Boles

received a written decision of why 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 of the 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

of the crime on the victim. [].

Section 46-23-202, MCA (2011). While the Board may consider psychological and mental

evaluations, Boles does not address whether he informed the Board of any updated

evaluations. In light of the 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 that Boles'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 of his due process rights with the Board's denial of his

parole in June. Accordingly,

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IT IS ORDERED that Boles's Petition for Writ of Habeas Corpus is DENIED and

DISMISSED.

The Clerk is directed to provide a copy of this Order to counsel of record and to

Brody Lucas Boles personally.

DATED this 1 -day of August, 2021.

11„,„ices