# 014.,liA0AL

IN THE SUPREME COURT OF THE STATE OF MONTANA OP 21-0192 

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# ILO CHAD ALLEN BERG, 

### MAY 0 4 2021

Petitioner,
v. AUSTIN CHOOKOMOOLIN,

Respondent. Bowen Greenwood Clerk of Supreme Court Str-itc. of Montana ORDER

Representing himself, Chad Allen Berg has filed a Petition for a Writ ofHabeas Corpus,indicating thathis incarceration is illegal becausehe wasnotgiven a hearing within five days following his arrest,pursuant to § 46-23-1024(2),MCA. He includes a copy of a Report ofViolation submitted by AdultProbation and Parole ofthe Montana Department ofCorrections (DOC). Berg requests that he be released and placed on parole. We reviewed the summary of Berg's Iegal history and placement included in the Report of Violation. Berg has two sentences from the Twelfth Judicial District Court, Hill County. His original sentence for a 2014 conviction of felony driving under the influence of drugs or alcohol (DUI) has been revoked twice. In December 2017, the District Court imposed a four-year sentence to the DOC with no time suspended because of new offenses, and Berg was transported to the Montana State Prison (MSP). In March 2018, the District Court sentenced Berg for the 2017 offenses of felony criminal possession with intentto distribute and felony use ofproperty subjectto criminal forfeiture. Berg received two, concurrent terms of five years to the DOC. The 2018 sentences run consecutively to his sentence upon revocation for the 2014 DUI conviction. On September 30,2019,Berg was granted parole. 05/04/2021

Case Number: OP 21-0192Berg argues that his parole revocation was improper because he "was not given a

hearing within 5daysafterbeing arrested as stated in Montana CodeAnnotated 46-23-1024 section (2)." Berg's reliance on § 46-23-1024(2), MCA,is misplaced. Berg's argument overlooks § 46-23-1024(1)(b), which provides that "[a]fter the arrest of the parolee, an initial hearing must be held unless . . . the parolee has been charged in any court with a violation of the law" (emphasis added). Berg was arrested on March 17, 2021, and on March 18, 2021 he was charged in Hill County District Court with felony criminal possession of dangerous drugs and misdemeanor criminal possession of drug paraphernalia. Berg was not entitled to an initial hearing within five days because ofthis new offense. Montana's statutory scheme outlines the process that a parolee,such as Berg,is due. "At any tirne during release on parole or conditional release, the department may issue a warrant for the arrest ofthe parolee for violation ofany ofthe conditions ofrelease . .. ." Section 46-23-1023(1), MCA. Aside from the new criminal charges, Berg was cited for several compliance violations in the Report ofViolation. Berg's due process rights have not been violated as he alleges, and he is not entitled to be released and placed on parole. "Parole . . . is a discretionary grant of freedom from incarceration." McDermott v. McDonald,2001 MT 89,¶ 24,305 Mont. 166,24 P.3d 200. Berg violated the conditions ofhis parole,jeopardizing his "grant offreedom"by the Board. He has not demonstrated illegal incarceration. Section 46-22-101(1),MCA. Accordingly, IT IS ORDERED that Berg's Petition for a Writ ofHabeas Corpus is DENIED. The Clerk is directed to provide a copy ofthis Order to counsel ofrecord and to Chad Allen Berg persori

, *. DATED this '

4 4' t---day ofMay,2021.

ChiefJusticeJustices

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