Petitioner,

v.

JIM SALMONSEN, Warden,

Montana State Prison,

Respondent.

Bowen Greenwood

Clerk of Supreme Court

State of Montana

ORDER

Michael Daniels petitions this Court for habeas corpus relief because of a 2019

parole revocation. Daniels alleges that the Parole Board violated his due process rights

when it revoked his parole without strict adherence to Montana statutes. Daniels requests

his immediate release frorn prison, reinstaternent of his parole, and dismissal of his parole

violations.

Citing § 46-6-214, MCA, Daniels first claims that his Novernber 28, 2019 arrest

was invalid because no signature authorized the arrest warrant. He next contends that he

was not personally served with a notice to appear, violating § 46-23-1023(1), MCA, and

there was no written staternent within twelve hours as required by § 46-23-1023(2), MCA.

Daniels argues further that he was held longer than seventy-two hours without bail, citing

§ 46-23-1023(4), MCA. He challenges his on-site hearing because it was not held within

five days after arrest as required by § 46-23-1024(2), MCA. Daniels lastly argues that his

revocation hearing was unlawful because it was not scheduled within ninety days as

directed in Admin. R. M. 20.25.801(12) but occurred almost six rnonths after his December

4, 2019 on-site hearing. We consider his clairns in turn.

Arrest Warrant Challenge

The arrest warrant was issued pursuant to § 46-23-1023, MCA, not

§ 46-6-214, MCA. Revocation of parole is not a part of the crirninal prosecution.
arrest of the parolee for violation of any of the conditions of release or a notice to appear

to answer to a charge of violation. The notice must be served personally upon the parolee."

Section 46-23-1023(1), MCA. (Ernphasis added). Daniels was not served personally with

a notice because a warrant was issued for his arrest. Daniels received a copy of a warrant

as evidenced by his attachments. For the same reason, § 46-23-1023(2), MCA, requiring

a written statement, does not apply to him. ("Any probation and parole officer may arrest

the parolee without a warrant or may deputize any other officer with power to arrest to do

so by giving the officer oral authorization and within 12 hours delivering to the place of

detention a written statement setting forth that the parolee has, in the judgment of the

probation and parole officer, violated the conditions of the parolee's release."

Section 46-23-1023(2), MCA (emphasis added).)

Held without Bail

The issue of a seventy-two-hour hold does not apply to Daniels, pursuant to

§§ 46-23-1023(4)(a), (b), MCA, because an initial or on-site hearing comrnenced the

revocation process, pursuant to § 46-23-1023(4)(c), MCA. His Probation and Parole

Officer issued an Affidavit of Support of Probable Cause Hearing on Parole Violations on

December 3, 2019. A parolee who has violated his conditions "may, if circumstances

warrant, be incarcerated in the institution." Section 46-23-1023(3), MCA.

See also § 46-23-1024(6), MCA ("The provisions of Title 46, chapter 9, regarding release

on bail of a person charged with a crime are not applicable to a parolee ordered to be held

in a county detention center or other facility under this section.").

On-Site Hearing

"The hearing must be conducted at or reasonably near the place of the alleged parole

violation or arrest and within 5 days after arrest. The parolee must be given notice of the

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recently explained that a one-day delay pursuant to § 46-23-1024(2), MCA, does not give

rise to a claim for due process violations. See Buehl v. Salmonsen, No. OP 18-0495,

2018 Mont. LEXIS 390 (Nov. 14, 2018). This Court has deterrnined that "Whe purpose of

an on-site hearing is to deterrnine whether there is probable cause or reasonable ground to

believe that the arrested parolee has committed acts that would constitute a violation of

parole conditions." Owens v. Risley, 217 Mont. 35, 37, 702 P.2d 1, 2 (1985);

Morrissey, 408 U.S. at 485, 92 S. Ct. at 2602.

Daniels received notice of the alleged parole violations when he received a copy of

the Deceinber 3, 2019 On-Site Affidavit of Probable Cause, signed by his Probation and

Parole Officer. The Probation and Parole Officer listed at least five violations of Daniels's

parole conditions during a four-month window since his July 25, 2019 parole. In the

Summary of On-Site Hearing, the presiding hearing officer stated that he reviewed

Daniels's due process rights with him and that Daniels acknowledged that his rights were

afforded to hiin. The officer included:

Michael Daniels did not hire an attorney to represent him. Each rule violation

was read[.] Daniels was afforded an opportunity to aslc questions and give

statements while entering his plea. P&P Officer Tricia Jory [w]as also

[offered] the opportunity to present testiinony.

I advised Parolee Michael Daniels at the conclusion of his hearing [t]hat I

found probable cause regarding all violations and [t]hat I was returning him

to the Board of Pardons and Parole for a forinal hearing. Daniels did state

that his [due] process rights were afforded to him at the conclusion of the

hearing and that he did want to appear before the Board at [his] hearing.

Daniels's due process rights were not violated at this on-site hearing.

"[D]ue process would seem to require that some minimal inquiry be conducted at or

reasonably near the place of the alleged parole violation or arrest and as promptly as

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possessing illegal drugs following his vehicle's impoundment. Daniels's hearing was

conducted in a timely fashion and within a short period of arrest, providing him all the

process that he was due. Daniels had an on-site hearing as promptly as possible.

Daniels also received criminal charges in the Cascade County District Court

(Cause No. ADC-19-0866). "After the arrest of the parolee, an initial hearing rnust be held

unless[,] . . . the parolee has been charged in any court with a violation of the law[1"

Section 46-23-1024(1)(b), MCA. Though the new charges likely obviated the need for an

on-site hearing, Daniels received one. His due process rights were amply protected.

Revocation Hearing

Regarding the delay between Daniels's on-site hearing and appearance before the

Board, we conclude that his due process rights were not violated. Daniels had a pending

criminal matter in District Court. Based on the limited information presented, it is not clear

whether his pending case took priority over his appearance before the Board. The charges

were dismissed in April 2020, during a time when the novel coronavirus pandemic was

slowing activity around the State. See Disability Rights Mont. v. Mont. Judicial

Dists. 1-22, No. OP 20-0189, 2020 Mont. LEXIS 2061, at *11 (Apr. 14, 2020). The delay

did not prejudice Daniels because the revocation hearing provided him the required due

process, pursuant to § 46-23-1025, MCA, and Admin. R. M. 20.25.801(12) (2016).

"Parole . . . is a discretionary grant of freedom frorn incarceration."

McDermott v. McDonald, 2001 MT 89, ¶ 24, 305 Mont. 166, 24 P.3d 200. We note that

this is Daniels's third parole in four years. The recent revocation of his parole was

warranted. Daniels has not shown that the Board erred in revoking his parole. He is not

entitled to reinstatement of parole or dismissal of his parole violations. Daniels has not

demonstrated that he is illegally incarcerated. Section 46-22-101(1), MCA.

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Chief Justice

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Justices

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