IN THE SUPREME COURT OF THE STATE OF MONTANA OP 23-0323 TRAVIS LEE OWENS,

Petitioner,
v. CAPTAIN JASON KOWALSKI,

Respondent. 

### FL I L.f,D JUN 2 7 2023 Bowen Grr,

..enwood Clerk cf Su7rerne Court State of Montana ORDER

Travis Lee Owens petitions this Court for habeas corpus relief, contending that his sentence is longer than the law allows, making his incarceration illegal. Owens requests a reduction ofhis sentence or a rernand ofhis underlying proceeding to the District Court. Owens includes a copy of the January 11, 2023 minute entry, which states that the Lewis and Clark County District Court sentenced Owens to theDOC for six and ahalfyears. Owens states that his "6.5 year commitment to [the DOC] violates [§] 46-18-201(3)(a)(iv)(A)[, MCA]" because the first five years of a commitment to the Department ofCorrections (DOC) "must be suspended." He adds that his "original sentence was 6.5 years" to the Montana State Prison (MSP). We secured copies ofthe relevant sentencingjudgments. OnMarch 23,2022, Owens appeared with counsel for a change ofplea hearing. Owens pleaded guilty to the amended charge offelony criminal endangerment, pursuant to a plea agreement, and waived his right to a pre-sentence investigation report. The District Court sentenced Owens to MSP for a term ofsix and a halfyears, with all time suspended and credit for tirne served of259 days. OnAugust 31, 2022, Owens appearedwith counsel to answer tothe alleged violations in the Report ofViolation concerninghis probationary term. The District Court revoked his suspended sentence. The court held a sentencing hearing on January 11, 2023, and cornrnitted Owens to the DOC for a term of six and a halfyears with none suspended, as 06/27/2023

Case Number: OP 23-0323

### reflected in the minute entry. The District Court awarded credit for 259 days oftime served

as well as 30 days ofelapsed time. Owens is mistaken in his argument because the District Court sentenced him upon revocation, pursuant to § 46-18-203, MCA, not under § 46-18-201, MCA. Section 46-18-203(7)(a)(iii), MCA,providesthatwhen "thejudge fmdsthat theoffenderhasviolated the terms and conditions ofthe suspended
. . . sentence and the violation is not a compliance violation, thejudge may[] . . . revoke the suspension ofsentence and require the offender to serve eitherthe sentence imposed or any sentencethat could havebeen imposed that doesnot include a longer imprisonment or commitment term than the original sentence[1" Here, the District Court revoked Owens's prison term ofa suspended sixand ahalfyears and imposed a DOC term ofan unsuspended six and a halfyears. The sentence upon revocation does not impose a longer term and is valid under Montana law. Owens has not demonstrated illegal incarceration. Section 46-22-101(1), MCA. Owens is not entitled to a reduction ofhis sentence or a remand. Owens is precluded under Montana law from challenging his sentence upon revocation through this remedy. Section 46-22-101(2), MCA. IT ISTHEREFORE ORDERED that Owens's Petition for Writ ofHabeas Corpus is DENIED and DISMISSED. The Clerk is directed to provide a copy of this Order to counsel of record and to Travis Lee Owens personally. DATED this Z--9

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— lay ofJune, 2023.

ChiefJustice

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