B. Nicolai v. Bell ( 2023 )

(D ORIGINAL 01/31/2023
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 23-0038
OP 23-0038
FILED
BOWDREA NICOLAI,
JAN 3 1 2'23
Bowen Gi .....,:rivvood
Petitioner, C. of Supreme Court
. .iate of mr“-,tana
v.
ORDER
DON BELL, Lake County Sheriff,
and BRENDON McQUILLAN,
Respondents.
Bowdrea Nicolai has filed a Petition for Writ of Habeas Corpus, requesting his
release on his own recognizance because the bail of $50,000 is excessive. Nicolai also
contends that law enforcement personnel conducted an illegal search and that it was not his
"stuff' in the car. He adds that law enforcement personnel forcibly interrogated him while
he was detained.
Habeas corpus affords an applicant an opportunity to challenge collaterally the
legality of his present incarceration. Section 46-22-101(1), MCA. Section 46-22-103,
MCA, provides that a petitioner may raise the issue of want of bail in a habeas corpus
proceeding. We point out that Nicolai has not provided any more information about his
underlying case in the Lake County District Court. His other claims concerning the stop,
search, and interrogation are not remedied by habeas corpus. Gates v. Missoula Cnty.
Comm'rs, 235 Mont. 261, 262, 766 P.2d 884, 884-85 (1988).
We securcd a copy of the register of actions from the District Court. The District
Court received the Justice Court record on November 15, 2022, and the State moved for
leave to file its charging documents, charging Nicolai with felony criminal possession of
dangerous drugs with intent to distribute. The District Court granted leave and later held
an arraignment hearing on December 1, 2022. The last entry, on December 12, 2022,
reveals that a second order for a jury trial was issued after substitution of the first judge.
Nicolai has a bail amount imposed. Nicolai has not demonstrated want of bail,
pursuant to § 46-22-103, MCA. A district court has the discretion to grant or deny release
and bail as well to set conditions. Graff? v. Mont. Fourth Judicial Dist. Ct., 2021 MT 201,
11, 405 Mont. 192, 492 P.3d 1213. Nicolai has counsel to represent him, and his counsel
may move for bail modification. The cause of his incarceration is his pending criminal
case in District Court. Nicolai has not demonstrated that he is illegally incarcerated or
detained. Section 46-22-101(1), MCA. He is not entitled to release.
Nicolai should refrain from filing pleadings on his own behalf with this Court when
he is represented by counsel. M. R. App. P. 10(1)(c); State v. Samples, 2005 MT 210, ¶ 5,
328 Mont. 242, 119 P.3d 1191. He has the remedy of appealing any conviction and
sentence to this Court after the District Court issues a final judgment.
IT IS ORDERED that Nicolai'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: the
Honorable Molly Owen, District Court Judge; Lyn Fricker, Clerk of District Court, Lake
County, under Cause No. DC 22-354; Don Bell, Sheriff; Brendan McQuillan, Deputy
County Attorney; Sterling Laudon, Defense Counsel; counsel of record, and Bowdrea
Nicolai personally.
DATED this 3eday ofJanuary, 2023.
Chief Justice
(12rtz---
A24 ,f 41/,
Justices
3