IN THE SUPREME COURT OF THE STATE OF MONTANA

JASON ROOD,

Petitioner,

v.

VANCE LAUGHLIN, Warden,

Respondent.

OP 20-0553

MAY 0 4 2021

Bowen Greenwood

Clerk of Suprerne Court

State of Mc-ant:arta

ORDER

Overview

Representing himself, Jason Rood has filed a Petition for a Writ of Habeas Corpus,

indicating that he is due more credit for time served. The Assistant Attorney General for

the State of Montana responds that Rood's Petition should be denied because he is

procedurally barred from challenging his sentence upon revocation through habeas corpus,

pursuant to § 46-22-101(2), MCA, and that he has not met his burden, demonstrating a

prima facie case of illegal incarceration.

Procedural Background

In August 1998, Rood, then seventeen years of age, was arrested for two counts of

sexual intercourse without consent in Flathead County. Rood entered a plea to the first

count where the victim was 14 years old at the time of the offense, and the court dismissed

the second count where the victim was 13.25 years old in the Flathead County District

Court. On September 30, 1999, the District Court sentenced Rood to the Montana State

Prison (MSP) for a suspended twenty-year term, subject to conditions of probation. The

court ordered Rood to serve ninety days in jail and gave him sixteen days of credit for time

served. Rood did not appeal.

Rood was under adult supervision in Santa Cruz, California, from 1999 to 2017. On

May 17, 2017 the State filed a Petition for Revocation of Sentence in which it asserted

05/04/2021

Case Number: OP 20-0553
Rood violated the conditions of his suspended sentence as set forth in the Probation Officer

Robert Hislop's May 8, 2017 Report of Violation (ROV). Officer Hislop's ROV asserted

Rood violated conditions of his probation by pleading guilty to a felony Crimes Against

Person and a misdemeanor offense of Driving Under the Influence of Alcohol. No other

probation violations were alleged. Officer Hislop's report noted Rood was sentenced on

these violation offenses to thirty-six months formal probation to include 365 days

incarceration—with credit for 73 days already served. Officer Hislop further advised:

It is this writer's recommendation that a warrant be issued for [Rood] and

that he be brought back before the Court to answer to these alleged violations

and if revoked that he spend the remainder of his sentence, which is two

years, in Montana State Prison. (Emphasis added.)

At the revocation hearing, Rood admitted the convictions in California and the

District Court revoked his suspended sentence. Rood received a twenty-year sentence to

MSP with no time suspended. He was awarded 183 days of credit for time served. The

court awarded him no street time credit, stating in its written judgment:

Defendant is not to receive credit for any time otherwise served on probation

for the reason that he began, almost immediately after his sentencing herein,

to commit other offenses in the State of California and was never law-abiding

for any extended period of time while he was on probation.

Order of Revocation Judgment & Sentence, at 2 (Mont. Eleventh Judicial Dist. Ct. Aug 22,

2017).

Through counsel, Rood appealed in 2017. His counsel raised three possible issues

in the Anders' brief: (1) Rood may wish to argue that under Montana's 2017 revocation

law he was owed street time credit for the original 1998 conviction; (2) a possible IAC

claim because counsel in the revocation proceeding failed to object to the State's disregard

of the 2017 amendments to § 46-28-203(1), MCA, because the petition to revoke did not

include a description of the exhaustion and documentation under the Montana Incentives

and Intervention Grid (MIIG); and (3) the District Court did not follow its oral

Anders v. Ca., 386 U.S. 738, 87 S. Ct. 1396 (1967).

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pronouncement and its written Order of Revocation Judgment and Sentence incorrectly

imposed "conditions of parole instead of conditions of probation, which the court only

has legal authority to do.

Rood filed a response on his own behalf, citing several Montana statutes. He

contended he was inappropriately not sentenced upon revocation under the 2017 version

of § 46-18-203, MCA; he was not given any probationary hearing or intervention pursuant

to MIIG, and his due process rights were violated as a result. He noted that prior to service

of the probation warrant for his arrest, he had not had contact with Montana Probation and

Parole since October 1999. Rood also argued he was due additional credit for time served

as well as street time. He stated he thought the District Court had not consulted the records

for any additional credit, referring to § 46-18-203(7)(b), MCA. He explained he should

have received partial credit for the years for 1999 to 2007 and 2009 to 2010. Rood

acknowledges his addiction, especially after his Mom's death in 2008. He states he had

clean urine analysis tests, made his appointments, and paid his fines during those years.

He points out the Judge relied on the County Attorney's statement about 'a vandalism

charge. He contends this reliance was incorrect because the conviction was from 1996,

occurring-before his conviction in this case. We dismissed his appeal. State v. Rood, No.

DA 17-0605, Order (Mont. Dec. 3, 2019).

Arguments

In his instant Petition, Rood seeks street time credit for the time he was on probation

in California. Although he couches it as a request for additional credit for time served of

650 days, he also alludes to failure of the District Court to appropriately award him street

time.

Citing to § 46-22-101(2), MCA, the State contends he is procedurally barred from

seeking habeas corpus relief for his 2017 sentence upon revocation and, as such, is not due

any additional credit. Miller v. Eleventh Judicial Dist. Ct., 2007 MT 58, ¶ 14, 336 Mont.

207, 154 P.3d 1186. The State refers to the court's Judgment and Sentence which reached

the same conclusion.

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Discussion

In 2005, Petitioner Lott was procedurally barred to raise his claims about an illegal

sentence imposed in 1992 after there had been a change in the law about sentence

enhancement. See Lott v. State, 2006 MT 279, IN 1-2, 334 Mont. 270, 150 P.3d 337(citing

State v. Guillaume, 1999 MT 29, ¶ 16, 293 Mont. 224, 975 P.2d 152 ("that application of

the weapons enhancement to a felony offense that itself requires proving the use of a

weapon violates Montana's constitutional protection against double jeopardy"). This

Court took a broad approach to the remedy of habeas corpus. We distinguished the federal

scope of habeas corpus relief, and "we conclude[d] that Montana's guarantee of the

privilege of habeas corpus embodies a fundamental, intrinsic principle: the right to

challenge the cause of one's imprisonment." Lott, ¶ 7 . "When the delegates ratified the

1972 Constitution, they intended, at a minimum, that an individual incarcerated pursuant

to a facially invalid sentence--for example, a sentence which either exceeds the statutory

maximum for the crime charged or which violates the constitutional right to be free from

double jeopardy--have the ability to challenge its legality." Lott, '1122.

"The central function of the courts is the pursuit of justice. Like all human

endeavors, this pursuit is occasionally flawed." Lott, ¶ 20. This Court erred in dismissing

Rood's appeal, pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), based

on his counsel's assertion there were no non-frivolous issues to present on appeal. That

error should not now be further compounded. Rood questions the facial validity of his

sentence. The procedural bar to habeas corpus petitions "is unconstitutional as applied to

facially invalid sentences." See Gratzer v. Mahoney, 2006 MT 282, ¶ 2, 334 Mont. 297,

150 P.3d 343 (expounding on the recent holding in Lott, and determining because of the

issue concerning facial validity, the procedural bar to habeas corpus petitions is not

applicable.). "The writ of habeas corpus is designed to correct such flaws and to remedy

`extreme malfunctions in the state criminal justice systems.'" Lott, ¶ 20 (quoting Jackson

v. Virginia, 443 U.S. 307, 332 n.5, 99 S. Ct. 2781, 2796 n.5 (1979) (Stevens, J.,

concurring)). Thus, we conclude Rood has appropriately challenged his cause of

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imprisonment through this habeas corpus action.

While the 1997 version of the Montana Code Annotated applied to Rood's 1998

conviction, the 2017 statutes for revocation apply to Rood's sentence upon revocation.

Rood was convicted in 1998, and the 1997 version of Montana Code Annotated applies.

See State v. Piller, 2014 MT 342A, ¶ 21, 378 Mont. 221, 343 P.3 d 153 (express retroactivity

provision contained in § 46-18-203(9), MCA (2011) (citation omitted). The 2017 version

of this Code is found in § 46-18-203(12), MCA: "The provisions of this section apply to

any offender whose suspended or deferred sentence is subject to revocation regardless of

the date of the offender's conviction and regardless of the terms and conditions of the

offender's original sentence." Pertinent here is the following language:

If a suspended . . . sentence is revoked, the judge shall consider any elapsed

time, consult the records and recollection of the probation and parole officer,

and allow all of the elapsed time served without any record or recollection

of violations as a credit against the sentence. If the judge determines that

elapsed time should not be credited, the judge shall state the reasons for the

determination in the order. Credit must be allowed for time served in a

detention center or for home arrest time already served.

Section 46-18-203(7)(b), MCA (2017) (emphasis added).

The issue at Rood's revocation hearing was whether he violated the terms and

conditions of his probation as outlined in the ROV—by committing a felony Crime Against

Person and a misdemeanor DUI in CA for which he was sentenced in California on March

8, 2017. Rood admitted these violations. Prior to this time California reported no other

violation for Rood while supervised in California pursuant to Interstate Compact. Thus,

on the "records and recollectiore' of probation, no violations of probation were asserted

prior to the May 8, 2017 ROV. This is confirmed by Officer Hilsop's averment that only

two years remained on Rood's sentence. As such, we conclude the District Court imposed

a facially invalid sentence upon revocation in denying Rood street time credit for the time

he served on probation prior to May 17, 2017, the date the State filed the Petition for

Revocation.

Therefore,

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Order

IT IS ORDERED that Rood Petition for Habeas Corpus is GRANTED. This matter

is remanded to the District Court to amend its Order of Revocation Judgment & Sentence

to credit Rood for the time he was on probation up to May 17, 2017 consistent with this

Order and to amend "conditions of parole" to conditions of probation.

The Clerk of the Supreme Court is directed to provide a copy of this Order to the

Honorable Robert Allison, District Court Judge, Flathead County; to Peg Allison, Clerk of

District Court, Flathead County, under Cause No. DC-98-239B; to counsel of record, and

to Jason Neal Rood personally.

DATED this 1 - day of May, 2021.

' (2e '17At Z

Chief Justice

(94 41.1.,_

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