Blackcrow v. Salmonsen ( 2022 )

ORIGINAL 06/21/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 22-0291
OP 22-0291
ALOYSIUS DENNIS BLACKCROW,
JUN 2 1 2022
Greenwood
Petitioner, BOVVerl
Clerk of
Supreme Cowl
Montana
State of
v.
ORDER
JAMES SALMONSEN, Warden,
Montana State Prison,
Respondent.
Aloysius Dennis Blackcrow petitions this Court for habeas corpus relief and
includes several attachrnents. He asserts that an irnproper parole revocation occurred,
"without strict adherence to outlined Montana statutes." He has since filed a supporting
affidavit.
Blackcrow explains that on June 18, 2021, his parole officer issued an arrest
warrant, following Blackcrow's involvement in a single vehicle accident where alcohol
and illegal drugs were found in the vehicle. Blackcrow states that he was arrested on July
7, 2021, for felony criminal possession of dangerous drugs and felony theft. Blackcrow
states that bail was set at $25,000 and that he had a preliminary hearing set for July 19,
2021. Blackcrow provides that on February 17, 2022, the Lake County District Court held
a hearing on his counsel's motion to dismiss, alleging a violation of § 46-10-105, MCA.
Blackcrow includes a copy of the court's order, dismissing his underlying criminal case
because no preliminary hearing was held.
Blackcrow now requests reinstatement of his parole. Blackcrow contends that his
parole was improperly revoked because "the Lake County Probation and Parole Office did
not adhere to the strict outlined Montana statutes." Blackcrow points out that he was held
on two arrest warrants without any probable cause determination. He argues that he was
in the Lake County Jail for eight months and at no tirne did he have an initial hearing
concerning his parole status or alleged violations. Blackcrow states that it was not until
February 22, 2022, after his charges were disrnissed, that he had the on-site hearing to
determine probable cause. He argues that this flies in the face of the required 72 hours,
pursuant to § 46-23-1023(4), MCA. He contends that his parole officer and the Lake
County Attorney lied under oath during his court proceeding. He also puts forth that his
violations were "exaggerated" or "inflated" as an act of reprisal.
Blackcrow tries to argue that dismissal of his underlying criminal case and the
failure to have a timely initial hearing concerning his alleged parole violations have
prejudiced him. Under Montana law, when a parolee commits a new offense, the parolee
is not entitled to an initial hearing within 72 hours or five days of arrest.
See §§ 46-23-1023(4), MCA, -1024(2), MCA. Section 46-23-1023(3), MCA, concerning
arrest of an alleged parole violator, provides that "[p]ending a hearing, as provided in
46-23-1024 and 46-23-1025, upon any charge of violation the parolee may, if
circumstances warrant, be incarcerated in the institution." (Emphasis in original). Pursuant
to Montana statutes, while not in prison, Blackcrow was held or detained in jail "upon any
charge of violation . . . ." Section 46-23-1023(4), MCA. Blackcrow has not advanced any
law to support a claim of prejudice.
Blackcrow has not dernonstrated illegal incarceration necessaiy for the remedy of
habeas corpus relief. Section 46-22-101(1), MCA. In 2021, as a parolee, new criminal
charges were filed against him. Blackcrow was not entitled to an on-site, initial hearing to
determine probable cause, pursuant to § 46-23-1024(1)(b), MCA, as the District Court
correctly pointed out in its dismissal order. While Blackcrow's hearing was delayed by his
criminal case, he has not shown any prejudice because Blackcrow received relief in the
District Court. Even though the court dismissed the criminal case, reasons existed for the
Board to revoke parole.
Blackcrow's attached Report of Violation speaks for itself. Blackcrow was paroled
on June 23, 2020, and he was cornplying until October 2020. In October 2020, Blackcrow
tested positive for methamphetamine, and his parole officer increased reporting
requirements as well as increased urine analysis tests for alcohol and drugs. The Report
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outlines his increased drug and alcohol use as well as his inability to abide by parole
conditions. The Report contains five violations, including the two dismissed felonies, and
recommends parole revocation because he "is a danger to the community, and unable to
abide by the laws, he creates more victims, and is not appropriate for community
supervision."
Blackcrow attaches copies of his grievances to the Board of Pardons and Parole
(Board) concerning an appeal or reconsideration of his parole revocation. We have stated
before that the Board has broad statutory authority to consider even dismissed criminal
counts along with other evidence. McDermott v. McDonald, 2001 MT 89, ¶¶ 20-21, 305
Mont. 166, 24 P.3d 200. The Board denied his request for reconsideration twice,
explaining that evidence is required for reconsideration. The Board also stated that:
Blackcrow has "not shown the [Board] relied on false information to revoke [his] parole."
The Board's written responses support this conclusion of parole revocation.
Blackcrow is not entitled to reinstatement of parole. Accordingly,
IT IS ORDERED that Blackcrow's Petition for a Writ of Habeas Corpus is DENIED
and DISMISSED.
The Clerk is directed to provide a copy of this Order to counsel of record and to
Aloysius D. Blackcrow personally.
DATED this E L day of June, 2022.
Chief Justice
e C11 'frn 4 4,
Justices
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