No. 79-18 INTHE SUPREME COURT OF THE STATE OF MONTANA 1979

INTHE MATTER OF THE PETITION OF JAMES E. GRAY

ORIGINAL PROCEEDING:

Counselof Record:
For Petitioner: Jackson and Kelley, Helena, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana TedL. Mizner, CountyAttorney, Deer Lodge, Montana

Submitted: November 7, 1979

t,I-: -*- Filed: 

# ;to~ 14 .-i;Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Thisproceeding is a petition for a writ of habeas corpus seeking release of petitioner James E. Gray on bail pending determination of his petition for habeas corpus in the District Court of PowellCounty. In 1977petitioner was convicted of the crime of forgery following his plea of guilty in the District Court of Cascade County. He filed a petition for a writ of habeas corpus in Powell County District Court in May, 1978. Thatpetition attacks alleged improper and incorrect items in the presentence report which was prepared for the Cascade County District Court following his plea of guilty to the forgery charge. The relief he seeks in that petition is that his sentencebe vacated and that he be returned to the Cascade County District Court for resentencing. No attack is made on petitioner's guilty plea or convictionof forgery. After the filing of the petition for habeas corpus in the Powell County District Court,petitioner was released on bail by Judge Robert Boyd. Petitioner remained free on bail for 15months during which time he obtained numerous continuancesof the hearing date on his petition and lost and regained the services of his present counsel. On September 6, 1979 when the PowellCounty petition finally came up for hearing, Judge John B. McClernan revoked petitioner's bail and remanded him to the State Prison where petitioner ispresently incarcerated. On October 10, 1979,petitioner filed an original proceeding in this Court seeking a writ of habeas corpus. He contends he is entitled to release on bail pending finaldetermination of proceedings attacking the sentence imposed on his forgeryconviction by the District Court of Cascade County. On October 12we orderedpetitioner to file a legalmemorandum supporting his petition and directed the Attorney Generalto file a written response to the petition with supporting legal memorandum thereafter. These have now been filed and thematter submitted to us for decision. Petitioner's claim that he is entitled to release on bail is grounded on two arguments. First,he claims that Judge Boyd's order in 1978 releasing him on bail established the "lawof the case" entitling him to remain free on bail. Secondly,petitioner contends that procedural prerequisites in section 46-9-311,MCA, mandate granting the writ of habeas corpus. The "law of the case" principle was discussed by this Court in a 1976 decision: "Under the 'law of the case' principle, judges of coordinate jurisdictions sitting in the same court and in the same casemay not ordinarily overrule the decisions of each other. It is simply a rule of practice that articulates the sound policy thatwhen an issue is once judicially determined, that should be the end of the matter as far as judges and courts of coordinate jurisdiction are concerned. The law of the case is not an imperative;doesnot go to the power of the court; and does not mean that a court does not have discretion to reconsider a ruling made by another judge in the same case." State v. Carden (1976), 170 Mont, 437, 555 P.2d 738. (Citationsomitted.) JudgeMcClernan thus had discretion to reconsider the ruling of JudgeBoyd. Petitionerhad remained free for 15 months due in large part to changes in counsel and continuances resulting therefrom. No progress was being made to resolve his petition for habeas corpus in the District Court of Powell County. Where only the sentencebut not the conviction is being attacked in the collateral proceeding,petitioner if successful is not entitled to be released but only to be resentenced. In re Lewis

(1916), 51Mont. 539, 154 P. 713. In accord: Petition of Cheadle (1964),143Mont. 327, 389 P.2d 579; City of Billings

### v. Trenka (1970), 155Mont. 27, 465 P.2d 838. Additionally,bail may be increased, reduced, substituted,revoked or the conditions of bail changed. Section 46-9-311,MCAThe contention of petitioner that section 46-9-311,MCA, mandates granting his petition lacksmerit. There is no prohibition in this statute or elsewhere preventing a court from acting on its ownmotion to revokebail. The concurrentnotice and revocation given by the District Court in this casewas reasonableunder the circumstances as petitioner had left the state and did not return until the time of hearing. The petition for writ of habeas corpus is denied.

Chief Justice

Justices 

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Mr. Justice Daniel J. Shea dissents and will file a dissenting opinion later.DISSENT
JUSTICE DANIEL J. SHEA

No. S.C. 79-18
IN THE MATTER OF THE PETITION OF JAMES E. GRAYMr. Justice Daniel J. Shea dissenting:
I would permit the defendant toremain on bail pending
a trialcourt ruling on his request tohave the sentence vacated. The majority grounds its decision on the wording of section 46-9-311, MCA, which permits a trialcourt toincrease, reduce or substitute bail, ortorevoke bail. Because a DistrictCourt has statutory authority torevoke bail, the majority has concluded that the DistrictCourt must have been correct in sodoing. What I disagree with, however, isnot the statute, which clearly sets forththe options available tothe trial court; but rather, I object tothe arbitrary decision of the trial court inrevoking the bail, without any explanation whatsoever injustification of its action. This Court should not givemuch deference toa decision of any trialcourt if it has failed to articulate thereason for the action taken. Too often this Court must review the actionsof a trial court in situatingwhere there is absolutely no explanation inthe record forthe action taken. It is exalting form over substance in such cases toresort tothe time-worth rule that the action of a trialcourt ispresumed tobe correct. What this Court stated inBallant$ne v. Anaconda Co. (1978), Mont. 

### , 574 P.2d 582, 35 St.Rep. 171, concerning reasons fordecisions, applies equally to a decision by a trialcourt revoking a defendant's bail. Here, we have a situationwhere one trialcourt granted bail toa defendant and a decision from which the Statedid not object; that is, once thedecision was made,the Statedid not attempt tooverturn the decision. But then a different judge iscalled intothe case, and without any explanationwhatsoever he revokes defendant's bail bond. In defending the trial court's action,the Statemerely cites the statutewhich authorizes the revocation of a bail bond. The State then presumes to provide a possible explanation for the trial judge's decision by suggesting that defendant was taking advantage of his bail status and was not truly interested in having a day of reckoning to determine the propriety of sentence. It is possible that this is so,but the State does
no service to the law of this State when it seeks to provide a reason for the action of a trial judgewhere there is absolutely
no reason stated in the record for the action taken. By approving of the action of the trial courts in situations such as this, this Court is only encouraging the trial courts to be as fuzzy as possible in arriving at their decisions, knowing that their so-called discretionary acts will be protected from the light of day by the invocation of the rule that their actions are presumed to be correct. The presumption of correctness should evaporate at the moment the trial courthas failed to disclose for the record the reasons for its decision. Neither the parties nor this Court should be required to guess as to why the trial court revoked the petitioner's bail in this case.