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INTHE SUPREME COURT OF THE STATE OF MONTANA OP 23-0116
WAYNE ANTHONY AVILES,

Petitioner,

v. CAPTAIN JASON KOWALSKI,

Respondent. 

### MAR 07 2923 Bow- -n Clerk of Supreme Court State of montane ORDER

Self-represented Petitioner Wayne Anthony Aviles has filed a Petition for Writ of Habeas Corpus, requesting full exoneration and expungement ofcharges from his record, his immediate release from prison, and a large amount ofrestitution. Avilesallegesillegal incarceration due to his "illegal sentence" because it is a five-year, unsuspended term to the Department ofCorrections (DOC). Aviles contendsthat his sentence violates his right to be free from doublejeopardy. He also lists at least fifteen claims, such as conflict of interest, ineffective assistance of counsel, and violations of other constitutional rights. Aviles includes 192 pages of attachments. He is currently placed at the Missoula Assessment Sanction Center (MASC). On October 10, 2017, the Tenth Judicial District Court, Fergus County, sentenced Aviles for felony sexual intercourse without consent to the DOC for an unsuspended ten-yearterm. TheDistrictCourtlateramendedthesentenceontheState'smotion,holding
a hearing on January 4, 2018, and imposing a ten-year DOC term with five years suspended. Aviles did not appeal. In open court on May 24, 2022, the District Court revoked Aviles's suspended sentence because of violations. The court imposed a five-year, unsuspended term and awarded credit for time served as well as street time. Aviles did not appeal his sentence upon revocation. 03/07/2023

Case Number: OP 23-0116Upon review, Aviles's five-year unsuspended sentence is lawful and valid because

it is a sentence upon revocation. Pursuant to § 46-18-203(7)(a)(iii), MCA, a sentencing court may revoke the suspension ofthe sentence and impose any term that is not longer than the original sentence. Upon revocation, Aviles received a five-year sentence, which is not longer than his original ten-year sentence with five years suspended. Section 46-18-203(7)(a)(iii), MCA. Aviles's sentence does not violate the right to be free from doublejeopardy. This Court has stated that "revocation of a suspended sentence based upon violations ofprobationary conditions and reinstatement ofthe sentence does not violate a person's constitutional rights against doublejeopardy[.]" State v. Dewitt, 2006 MT 302,¶ 10, 334 Mont.474, 149 P.3d 549. Aviles's other claims cannot be addressed through the remedy ofhabeas corpus. Section 46-22-101(1), MCA. His litany ofclaims would be more appropriately raised in direct appeal, and at this point, he is time-barred to challenge his conviction and sentence through an appeal. Section 46-22-101(2), MCA. Aviles retains the remedy of filing a petition for postconviction relief with the District Court. He may raise the claims concerning his counsel's representation through such a petition. See §§46-21-101 through 46-21-105,MCA. Under Montana law, Aviles is procedurally barred to challenge his sentence upon revocation through the remedy of habeas corpus. Section 46-22-101(2), MCA. Aviles is not entitled to his requests of exoneration, dismissal ofcharges, release, or restitution. Therefore, ITISORDERED that Aviles's Petition for Writ ofHabeasCorpus isDENIED and DISMISSED. The Clerk of the Supreme Court is directed to provide a copy of this Order to: Captain Kowalski, couQ.

Wf record, and Wayne Anthony Aviles personally. DATEDthis1—, day ofMarch, 2023.

ChiefJustice
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Justices

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