R. Rose v. Salmonsen ( 2023 )

03/21/2023
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: OP 23-0095
OP 23-0095
FILED
ROBERT L. ROSE,
MAR 2 1 2023
Bowen GreenwoO0
Petitioner, Clerk of Supreme Cour,
State of mr,,,ta
v.
ORDER
JAMES SALMONSEN, Warden,
Montana State Prison,
Respondent.
In a February 16, 2023 Order, this Court directed the Attorney General or counsel
for the Department of Corrections to file a response to self-represented Petitioner Robert
L. Rose's Petition for Writ of Habeas Corpus, alleging that his 2004 consecutive sentence
as a Persistent Felony Offender is illegal under State v. Gunderson, 2010 MT 166, 357
Mont. 142, 237 P.3d 74 (Gunderson 11). The State has filed its response, conceding that
Rose's sentence should be remanded for resentencing.
Both Rose and the State provide details about Rose's criminal history, as well as his
prior appeals and proceedings in state and federal court. In 2004, the Ravalli County
District Court issued its Judgment and Commitment, sentencing Rose for three felonies: a
fifty-year prison terrn with twenty years suspended for aggravated kidnapping; a
consecutive twenty-year term for assault with a weapon, and a consecutive, twenty-year
term for assault on a peace officer. The District Court also imposed a twenty-year term for
the persistent felony offender designation (PFO), to run consecutively.
The State concedes that Rose's additional sentence as a PFO is illegal, pursuant to
this Court's 2010 change in sentencing law. See Gunderson 11, ¶ 54 (a PFO sentence
replaces the sentence for the underlying felony). Although the number of years the court
imposed was within the statutory maximum, the State agrees that it could not treat Rose's
PFO designation as a separate sentencing enhancement. It suggests remand to the District
Court due to the illegal portion of Rose's sentence. State v. Heafner, 2010 MT 87, 4. 11,
356 Mont. 128, 231 P.3d 1087.
Given the foregoing, we find the State's concession dispositive.
IT IS THEREFORE ORDERED that:
1. Rose's Petition for Writ of Habeas Corpus is GRANTED in part. Rose's
underlying criminal matter, Cause No. DC-02-02, is REMANDED to the
Twenty-tirst Judicial District Court, Ravalli County, to resentence Rose;
2. Rose's other requests for relief, including a hearing before this Court and his
release from prison, are DENIED and DISMISSED. Rose shall remain
incarcerated pending his resentencing; and
3. this matter is CLOSED as of this Order's date.
The Clerk of the Supreme Court is directed to provide a copy of this Order to: the
Honorable Howard F. Recht, District Court Judge; Paige Trautwein, Clerk of District
Court, under Cause No. DC-02-02; counsel of record, and Robert L. Rose personally.
=14-
DATED this Z I 'day of March, 2023.
Justices