IN THE SUPREME COURT

OF THE STATE

OF MONTANA MICHAEL DANIELS, Petitioner, v. JIM SALMONSEN,

Warden, Montana

State Prison, Respondent.

OP 21-0007

FILED JAN

1 9 2021 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.01/19/2021Case Number: OP 21-0007Morrisseyv.Brewer,408U.S.471,480,92S.Ct.2593,2599-2600(1972).Theparticularsofanarrestwarrantunder§46-6-214,MCA,donotapply.LackofService&kVrittenStaternentDaniels'sProbationandParoleOfficerissuedawarrantforhisarrest."Atanytimeduringreleaseonparoleorconditionalrelease,thedepartmentmayissueawarrantforthearrestoftheparoleeforviolationofanyoftheconditionsofreleaseoranoticetoappeartoanswertoachargeofviolation.Thenoticemustbeservedpersonallyupontheparolee."Section46-23-1023(1),MCA.(Ernphasisadded).Danielswasnotservedpersonallywithanoticebecauseawarrantwasissuedforhisarrest.Danielsreceivedacopyofawarrantasevidencedbyhisattachments.Forthesamereason,§46-23-1023(2),MCA,requiringawrittenstatement,doesnotapplytohim.("Anyprobationandparoleofficermayarresttheparoleewithoutawarrantormaydeputizeanyotherofficerwithpowertoarresttodosobygivingtheofficeroralauthorizationandwithin12hoursdeliveringtotheplaceofdetentionawrittenstatementsettingforththattheparoleehas,inthejudgmentoftheprobationandparoleofficer,violatedtheconditionsoftheparolee'srelease."Section46-23-1023(2),MCA(emphasisadded).)HeldwithoutBailTheissueofaseventy-two-hourholddoesnotapplytoDaniels,pursuantto§§46-23-1023(4)(a),(b),MCA,becauseaninitialoron-sitehearingcomrnencedtherevocationprocess,pursuantto§46-23-1023(4)(c),MCA.HisProbationandParoleOfficerissuedanAffidavitofSupportofProbableCauseHearingonParoleViolationsonDecember3,2019.Aparoleewhohasviolatedhisconditions"may,ifcircumstanceswarrant,beincarceratedintheinstitution."Section46-23-1023(3),MCA.Seealso§46-23-1024(6),MCA("TheprovisionsofTitle46,chapter9,regardingreleaseonbailofapersonchargedwithacrimearenotapplicabletoaparoleeorderedtobeheldinacountydetentioncenterorotherfacilityunderthissection.").On-SiteHearing"Thehearingmustbeconductedatorreasonablyneartheplaceoftheallegedparoleviolationorarrestandwithin5daysafterarrest.Theparoleemustbegivennoticeofthe2hearingandmustbeallowedtoappearandspeakintheparolee'sownbehalfandintroducerelevantinforrnationtothehearingsofficer."Section46-23-1024(2),MCA.DanielswasarrestedonThanksgiving,Thursday,November28,2019,andanon-sitehearingwasheldonWednesday,December4,2019,accordingtothecopyDanielsattachedtohisPetition.Thehearingoccurredwithinsixdaysandisnotviolativeofdueprocess.ThisCourtrecentlyexplainedthataone-daydelaypursuantto§46-23-1024(2),MCA,doesnotgiverisetoaclaimfordueprocessviolations.SeeBuehlv.Salmonsen,No.OP18-0495,2018Mont.LEXIS390(Nov.14,2018).ThisCourthasdeterrninedthat"Whepurposeofanon-sitehearingistodeterrninewhetherthereisprobablecauseorreasonablegroundtobelievethatthearrestedparoleehascommittedactsthatwouldconstituteaviolationofparoleconditions."Owensv.Risley,217Mont.35,37,702P.2d1,2(1985);Morrissey,408U.S.at485,92S.Ct.at2602.DanielsreceivednoticeoftheallegedparoleviolationswhenhereceivedacopyoftheDeceinber3,2019On-SiteAffidavitofProbableCause,signedbyhisProbationandParoleOfficer.TheProbationandParoleOfficerlistedatleastfiveviolationsofDaniels'sparoleconditionsduringafour-monthwindowsincehisJuly25,2019parole.IntheSummaryofOn-SiteHearing,thepresidinghearingofficerstatedthathereviewedDaniels'sdueprocessrightswithhimandthatDanielsacknowledgedthathisrightswereaffordedtohiin.Theofficerincluded:MichaelDanielsdidnothireanattorneytorepresenthim.Eachruleviolationwasread[.]Danielswasaffordedanopportunitytoaslcquestionsandgivestatementswhileenteringhisplea.P&POfficerTriciaJory[w]asalso[offered]theopportunitytopresenttestiinony.IadvisedParoleeMichaelDanielsattheconclusionofhishearing[t]hatIfoundprobablecauseregardingallviolationsand[t]hatIwasreturninghimtotheBoardofPardonsandParoleforaforinalhearing.Danielsdidstatethathis[due]processrightswereaffordedtohimattheconclusionofthehearingandthathedidwanttoappearbeforetheBoardat[his]hearing.Daniels'sdueprocessrightswerenotviolatedatthison-sitehearing."[D]ueprocesswouldseemtorequirethatsomeminimalinquirybeconductedatorreasonablyneartheplaceoftheallegedparoleviolationorarrestandaspromptlyas3convenient

after arrest while inforrnation

is fresh

and sources

are available." Morrissey,

408 U.S.

at 485,

92

S. Ct.

at 2602.

See also

§§ 46-23-1001

through 46-23-1032,

MCA (Montana statutes codifying

the process

for both probation

and parole supervision

and revocation).

At his hearing, Daniels entered pleas

of guilty

to possessing ammunition

during

a search
after

the November

28, 2019
law enforcernent

stop and

to 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. 4IT IS THEREFORE ORDERED

that Daniels's Petition

for

a Writ

of Habeas Corpus is DENIED. The Clerk

is directed

to provide

a copy

of this Order

to counsel

of record

and

to Michael Daniels personally. DATED

this

i 9
— day

of January,
2021.

Chief Justice .9.4

/4 211,__ ee

l Justices

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