A. Paige v. P. Bludworth ( 2021 )

01/26/2021
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: OP 21-0022
OP 21-0022
ANDREW DOUGLAS PAIGE,
JAN 2 6 2021
Petitioner, Bowen Greenwood
Clerk of Supreme Court
State of Montana
v.
ORDER
PETE BLUDWORTH, Warden,
Crossroads Correctional Center,
Respondent.
Representing himself, Andrew Paige puts forth that his sentence needs correction
and includes a copy of the final judgment with his recently filed Petition for a Writ of
Habeas Corpus. Paige also moves for appointment of counsel, contending that he needs
legal representation to get "a fair deal."
On October 5, 2020, the First Judicial District Court, Lewis and Clark County,
sentenced Paige for two counts of felony sexual abuse of children to the Montana State
Prison for two, concurrent 100-year terms. The District Court imposed a twenty-five-year
parole ineligibility restriction and awarded Paige 1,435 days of credit for time served. The
court ran his sentence consecutively to a prior sentence for felony theft. The District Court
designated Paige as a sexually violent predator and as a Level 3 sexual offender.
Paige claims that his sentence and incarceration are both illegal betcause: (1) the
sentence violates the Eighth Amendment prohibiting cruel and unusual punishment;(2)the
conditions are illegal; (3) the sex offender conditions are illegal; (4) his sentence was to
run concurrently; and (5) the court-imposed parole restriction is illegal. Paige alleges
claims of ineffective assistance ofcounsel stating that his counsel failed to object or failed
to follow their agreement. Paige has filed a Notice of Appeal along with his Petition.
The District Court filed Paige's Judgment and Commitment on October 7, 2020.
For this Court to obtain jurisdiction ofa criminal appeal, Paige should have filed his Notice
of Appeal on or before December 6, 2020. M. R. App. P. 4(5)(b)(i). Instead, he filed his
Notice along with his Petition on January 8, 2021. ,
Paige is not entitled to an appeal of his criminal convictions here nor is he entitled
to habeas corpus relieffor an alleged illegal sentence. Paige has not demonstrated an illegal
sentence. Section 46-22-101(1), MCA. Paige's sentence does not violate the Eighth
Amendment. The District Court had statutory authority, pursuant to § 45-5-625(1)(e),
MCA, for the convictions and § 45-5-625(4), MCA (2015), for the sentencing.' "If the
victim was 12 years of age or younger and the offender was 18 years of age or older at the
time of the offense, the offender[] shall be punished by imprisonment in a state prison for
a term of 100 years." Section 45-5-625(4)(a)(i), MCA. Next, the sentencing judge was
required under Montana law to impose a parole ineligibility restriction, pursuant to
§ 45-5-625(4)(a)(i), MCA, stating that "during the first 25 years of imprisonment, the
offender is not eligible for parole."
Neither the standard conditions nor sex offender conditions are illegal. The
sentencing judge possessed statutory authority pursuant to § 46-18-201, and § 46-18-202,
MCA. The judge designated Paige a level 3 offender, pursuant to § 46-18-207(1), MCA.
Because Paige was sentenced under § 45-5-625(4), MCA,he must"remain in an outpatient
sexual offender treatment program for the remainder ofthe person's life." Section 46-18-
207(2)(a)(iH), MCA. Section 46-18-222(6), MCA,entitles a judge to impose treatment of
an offender while incarcerated. Paige's two sentences for these sexual offenses were run
concurrently to each other. Pursuant to § 46-18-401(4), MCA,"[s]eparate sentences for
- two or more offenses must run consecutively to each other unless the court otherwise
orders." The District Court had authority to run Paige's sentence for the sexual offenses
consecutively to his prior sentence for theft.
Paige did not object to the conditions when sentenced. We point out that by entering
into a plea agreement, he has waived any challenge to his conditions. " [A] defendant
waives the right to appeal all nonjurisdictional defects upon voluntarily and knowingly
Paige committed his offenses in 2016, and the 2015 version of the Montana Code Annotated
applies.
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entering a guilty plea, including claims of constitutional violations which may have
occurred prior to the plea.'" State v. Pavey, 2010 MT 104, ¶ 11, 356 Mont. 248, 231 P.3d
1104 (quoting State v. Violette, 2009 MT 19, ¶ 16, 349 Mont. 81, 201 P.3d 804). Paige is
not entitled to these conditions being amended or stricken. Given the foregoing, Paige is
not entitled to legal representation in this original proceeding for habeas corpus relief.
Section 46-8-104, MCA.
We remind Paige that he received a fair deal. He pleaded guilty to two counts in
exchange for the State's dismissal of seven other counts of felony sexual offenses. Paige
has received the benefit of the bargain by entering into a plea agreement with the State.
We conclude that Paige has not dernonstrated illegal incarceration, and his sentence does
not need correction. Section 46-22-101(1), MCA.
The proper remedy for non-record-based claims ofineffective assistance of counsel
is postconviction relief under § 46-21-102(1), MCA,not state habeas corpus. We make no
express or implied comment here as to the procedural or substantive merit of Paige's
particular claims of ineffective assistance of counsel for purposes of postconviction relief.
Accordingly,
IT IS ORDERED that Paige's Petition for a Writ ofHabeas Corpus is DENIED and
that Paige's Motion for Appointment of Counsel is DENIED.
The Clerk ofthe Supreme Court is directed to provide a copy ofthis Order to counsel
of record and to Andrew Paige personally.
DATED this E.4„4-1):day of January, 2021.
Chief Justice
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