p T 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

OP 23-0116 

WAYNE ANTHONY AVILES, 

Petitioner, 

v. 

CAPTAIN JASON KOWALSKI, 

Respondent. 

MAR 0 7 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 of charges from his record, 

his immediate release from prison, and a large amount of restitution. Aviles alleges illegal 

incarceration due to his "illegal sentence" because it is a five-year, unsuspended term to 

the Department of Corrections (DOC). Aviles contends that his sentence violates his right 

to be free from double jeopardy. 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-year term. The District Court later amended the sentence on the State's motion, 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 23-0116
Upon 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 of the 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 

double jeopardy. This Court has stated that "revocation of a suspended sentence based 

upon violations of probationary conditions and reinstatement of the sentence does not 

violate a person's constitutional rights against double jeopardy[.]" State v. Dewitt, 2006 

MT 302, ¶ 10, 334 Mont. 474, 149 P.3d 549. 

Aviles's other claims cannot be addressed through the remedy of habeas corpus. 

Section 46-22-101(1), MCA. His litany of claims 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 of charges, release, or restitution. Therefore, 

IT IS ORDERED that Aviles's Petition for Writ of Habeas Corpus is DENIED 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. 

DATED this 1—, day of March, 2023. 

Chief Justice 

2 
1 70 /1 4t4g

eS2-i in 411, 

Justices 

3