G. Wells v. Salmonsen ( 2023 )

03/14/2023
iA
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 23-0104
OP 23-0104
FILED
GEORGE C. WELLS,
MAR 1 4 2023
Bowen Greenwood
Petitioner, Clerk of Supreme Court
Siete of Montana
v.
ORDER
JAMES SALMONSEN, Warden,
Montana State Prison,
Respondent.
George C. Wells has filed a petition entitled "Art. II § 19 Petition for Relief," which
seeks habeas corpus relief from his current sentence. He contends the sentence was
imposed without lawful authority, but provides no legal precedent or authority
demonstrating his sentence was illegally imposed. To the contrary, we have repeatedly
explained and held that his current sentence is lawful.
In 1982, Wells was convicted of aggravated assault, aggravated burglary, and
attempted sexual intercourse without consent in the Eighth Judicial District Court, Cascade
County, and appealed. We affirmed. State v. Wells, 202 Mont. 337, 357, 658 P.2d 381,
391 (1983). Wells received a 150-year prison sentence. In September 2015, this Court
granted Wells partial habeas corpus relief and remanded his case for resentencing because
the 2010 change in Montana law concerning persistent felony offender (PFO) designations
affected Wells's sentence. See Wells v. Kirkegard, No. OP 15-0466, Order, at 2-3 (Mont.
Sept. 29, 2015) (quoting State v. Gunderson, 2010 MT 166, ¶ 49, 357 Mont. 142, 237 P.3d
74 (Gunderson II)) (Wells 1). We explained about Wells's sentence:
In its Judgment of Conviction, Sentence and Order, the Cascade County
District Court designated Wells a persistent felony offender (PFO) under
§ 46-18-501, MCA. Wells received a twenty-year sentence for aggravated
assault, a forty-year sentence for attempted sexual intercourse without
consent, a forty-year sentence for aggravated burglary, and a fifty-year
sentence for a persistent felony offender under § 46-18-502, MCA. All
sentences were to run consecutively.
Wells I, at 1. Wells argued in Wells I that his PFO sentence, imposed along with his other
sentences, was illegal under Gunderson, and the State conceded that resentencing was
required.
Pursuant to our Order, on April 20, 2016, the Cascade County District Court
resentenced Wells for his felony convictions, and the court "did not sentence him as a
PFO," but, rather, imposed a 100-year sentence for Wells' convictions. Wells v. Fletcher,
No. OP 17-0224, Order, at 1 (Mont. May 9, 2017) (Wells II). Wells petitioned for habeas
corpus relief, but this Court denied the petition, stating Wells "has not demonstrated that
his [2016] sentence is facially illegal." Wells II, at 2.
Wells petitioned again in 2021, arguing that he should have been sentenced as a
PFO because it was mandatory. This Court denied his petition, explaining that he was
precluded from relief because he did not appeal his 2016 sentence, pursuant to
§ 46-22-101(2), MCA ("The writ of habeas corpus is not available to attack the validity of
a conviction or sentence of a person who has been adjudged guilty of an offense in a court
of record and has exhausted the remedy of appeal"), and that, in any event, his legal
arguments were incorrect "because the law goveming PFO sentencing has changed since
2009." Wells v. Salmonsen, No. OP 21-0526, Order, at 1-2 (Mont. Nov. 9, 2021) (Wells
III).
Thereafter, Wells again sought relief from this Court regarding his sentence, which
we addressed in 2022. He requested reinstatement of his original fifty-year PFO sentence
instead of what he described as the "100-year PFO sentence" he received following this
Court's remand of this case for re-sentencing in [Wells .1]." Wells v. Salmonsen, No.
OP 22-0013, Order, at 1 (Mont. Jan. 25, 2022) (Wells IV). As explained above, Wells had
received no such sentence in his resentencing. We reiterated that Wells was precluded
from habeas corpus relief, and warned him that he should not seek fiirther relief with this
Court concerning this sentence, stating "[w]e caution Wells to refrain from his repeated
filings collaterally attacking his sentence." Wells IV, at 2.
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That brings us to Wells' current petition again challenging his sentence. Wells
attempts to preempt this Court's caution by now arguing that "this Court's threat to suspend
George C. Wells' right to file under Art II § 19 is unconstitutional," because "the writ of
habeas corpus shall never be suspend[ed]."
The writ of habeas corpus shall not be suspended under Montana's Constitution, but
that does not mean this Court is powerless to address abuse of the right. Wells's instant
Petition, filed despite this Court's caution, again lacks merit, for he cannot demonstrate a
facially invalid sentence. Section 46-22-101(1), MCA. Wells has confused and misapplied
Montana law. He is not entitled to the original fifly-year sentence as a PFO when that
sentence was deerned illegal by this Court. We have explained this to Wells several times
since 2017. Accordingly,
IT IS ORDERED that Wells's Petition for Habeas Relief is DENIED and
DISMISSED.
IT IS FURTHER ORDERED that henceforth, prior to filing any original petition
with this Court regarding his 2016 sentence imposed on rernand, Wells is directed to file a
motion for leave to file the petition. The motion must be sworn under oath before a notary
public, not exceed three pages in length, and make a preliminary showing that the motion
has merit and meets the criteria to state a prima facie case under M. R. App. P. 14(5). Only
when this Court has reviewed the motion and issued an order granting leave to file may the
Clerk of the Suprerne Court file the petition. The Clerk shall reject any other original
petition that Wells seeks to file and shall inforrn Wells accordingly.
The Clerk is directed to provide a copy of this Order to counsel of record and to
George C. Wells, along with a copy of M. R. App. P. 14(5), for his reference.
The Clerk is also directed to CLOSE this matter as of this Order's date.
DATED this I LI —day of March, 2023.
Chief Justice
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