No. DA 09-0111

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 275

_________________

SAMUEL SCOTT JOHNSON,

 Petitioner and Appellant,

 v.

MIKE MAHONEY, Warden, and STATE OF 

MONTANA,

 Respondents and Appellees.

O P I N I O N

A N D

O R D E R

_________________

¶1 On January 10, 1996, Samuel Scott Johnson (Johnson) pleaded guilty to felony

aggravated kidnapping, in violation of § 45-5-303, MCA, and felony sexual intercourse

without consent (SIWC), in violation of § 45-5-503, MCA. Johnson was sentenced to 10

years imprisonment on the aggravated kidnapping charge and 40 years on the SIWC

charge. The terms of imprisonment were ordered to run concurrently at the Montana

State Prison (MSP).

¶2 On May 11, 2007, Governor Brian Schweitzer signed Senate Bill 547 into law.

This law, codified at § 46-18-207, MCA (2007), increased the penalties for certain sexual

offenses, granted the Department of Corrections (DOC) the authority to establish a

residential sex offender treatment program, and provided for the suspension of sentences

for those inmates who successfully completed the residential sexual offender treatment

program established pursuant to this legislation.

August 18 2009
2

¶3 After the law’s passage, Johnson filed a petition for a writ of habeas corpus in the 

Third Judicial District Court. Johnson argued that during the course of his incarceration 

he successfully completed qualifying “residential” sex offender treatment programs at a 

detention facility in Arizona and Crossroads Correctional Center in Montana while 

serving his sentence. Johnson asserted that he should be granted the benefit of 

§ 46-18-207, MCA (2007), because he completed these programs and that the balance of 

his sentence on his SIWC charge should be suspended. Johnson further argued that he 

was eligible for sex offender treatment under the new statute, § 46-18-207(4)(a), MCA, 

which provides as follows:

Except for an offender sentenced pursuant to 45-5-503(4), 45-5-507(5),

45-5-601(3), 45-5-602(3), 45-5-603(2)(c), or 45-5-625(4), during an 

offender’s term of commitment to the department of corrections or a state

prison, the department may place the person in a residential sexual

offender treatment program approved by the department under 53-1-203.

(Emphasis added).

¶4 The District Court denied Johnson’s petition for a writ of habeas corpus on two

grounds. First, the District Court concluded that the law in effect at the time of Johnson’s

offenses controlled as to his possible sentence. See State v. Brister, 2002 MT 13, ¶ 26,

308 Mont. 154, 41 P.3d 314. Accordingly, § 46-18-207, MCA (2007), simply did not

apply. Second, the District Court concluded that Johnson was not eligible for sexual

offender treatment even if this statute applied to him, since he was convicted of

aggravated kidnapping in violation of § 45-5-503, MCA, which is one of the listed

exceptions to the operation of § 46-18-207(4)(a), MCA.
3

¶5 Johnson now seeks to appeal the denial of his petition for a writ of habeas corpus.

The State, citing to Morrison v. Mahoney, 2002 MT 21, ¶ 8, 308 Mont. 196, 41 P.3d 320,

notes that a district court’s denial of a writ of habeas corpus is not appealable to this

Court. “This is so because a writ of habeas corpus may be granted by either a district

court or this Court and, as a result, the denial of such a writ by a district court is not res

judicata because it does not divest us of jurisdiction to grant a subsequent petition.”

Morrison, ¶ 8 (citing In re Hart, 178 Mont. 235, 241, 583 P.2d 411, 414 (1978)). In the

interests of judicial economy, however, the State suggests that we treat Johnson’s petition

for a writ as an original petition for a writ of habeas corpus. We adopt the State’s

suggestion and treat Johnson’s petition as an original proceeding before this Court.

¶6 The purpose of a writ of habeas corpus is “to inquire into the cause of

imprisonment or restraint and, if illegal, to be delivered from the imprisonment or

restraint.” Section 46-22-101(1), MCA. In a habeas proceeding, the burden is on the

petitioner to convince the Court that the writ should issue. Miller v. Eleventh Judicial

Dist. Ct., 2007 MT 58, ¶ 14, 336 Mont. 207, 154 P.3d 1186 (citing Petition of Dyer, 154

Mont. 499, 500, 463 P.2d 895, 896 (1969); Petition of Tooker, 148 Mont. 69, 73, 417

P.2d 87, 89 (1966)). A writ will issue if the petitioner “present[s] to this Court a record

that is sufficient to make a prima facie showing that the order of the District Court

constituted a violation, deprivation, infringement, or denial of his constitutional,

statutory, or legal rights.” Miller, ¶ 14.

¶7 Johnson has failed to convince the Court that a writ should issue in this case. As

the State points out, the residential treatment program authorized by § 46-18-207, MCA
4

(2007), has not yet been established.

1

 Thus, Johnson has not successfully completed the 

residential treatment program contemplated by this statute. Moreover, had the program 

been in place, Johnson would not have been eligible in any event since his conviction for 

aggravated kidnapping rendered him ineligible for the program. See § 46-18-207(4)(a), 

MCA. 

¶8 Additionally, the State correctly notes that pursuant to § 46-18-207(4), MCA,

DOC has the sole discretion to determine who may participate in the program. The

statute states that DOC may place an offender in the program, but it is not required to do

so. See ¶ 3. Thus, even if Johnson was in fact eligible for the program once established,

his entitlement to participate would be subject to the discretion of DOC.

¶9 Johnson has failed to meet his burden for the issuance of a writ of habeas corpus.

Accordingly,

¶10 IT IS HEREBY ORDERED that Johnson’s petition is DENIED and DISMISSED.

¶11 IT IS FURTHER ORDERED that the Clerk of this Court mail a copy of this

Opinion and Order to all counsel of record and to the Appellant at his last known address.

DATED this 18

th

day of August, 2009.

/S/ PATRICIA O. COTTER

We concur:

/S/ MIKE McGRATH

1 An affidavit in the record from DOC’s treatment contract program manager states that DOC

intends to have the program operational by the end of 2009.
5

/S/ JOHN WARNER

/S/ BRIAN MORRIS

/S/ JIM RICE