Arion v. Roos ( 2021 )

07/13/2021
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: OP 21-0295
OP 21-0295
RLED
RYAN ARION, JUL 1 3 2021
Bowen Greenwood
Clerk of Supreme Court
State of Montana
Petitioner,
v. ORDER
PAT ROOS,SHERIFF, Custer County.
Respondent.
Representing himself, Ryan Arion has filed a petition for a writ of habeas corpus,
arguing that his incarceration is illegal because he has been held in the Custer County Jail
on a parole violation since late last year. Arion states that he has been held without bail
for longer than 72 hours and that he has not been brought promptly before the Board of
Pardons and Parole (Board) "to answer to the parole violations." Citing
§ 46-23-1023, MCA,he points out that more than 60 days have elapsed since his arrest and
alleges that he has not been advised of the parole violations. Arion requests his release to
parole status. He provides a copy of a Warrant to Arrest Parolee, issued by the
Department of Corrections on November 4, 2020.
In 2008, the Custer County District Court imposed a three-year deferred sentence
for Arion's conviction of felony sexual intercourse without consent. That deferred
sentence was revoked three months later. Arion now is serving a 2013 sentence upon
revocation of fifteen years with five years suspended. He also has a 2008 conviction for
felony theft that he has since discharged.
At our request, the Clerk of District Court for Custer County provided an updated
register ofaction for Arion's original criminal case. The State filed a petition to revoke on
April 14, 2021, and the court issued a bench warrant the next day. No new charges were
filed in that District Court. We secured a copy of a docket from the District Court for
Lewis and Clark County, where the warrant was directed last year. The State of Montana
charged Arion in the Lewis and Clark County District Court on November 25, 2020, with
felony theft of property exceeding $5000, or common scheme, and with misdemeanor false
reports to law enforcement. Arion undoubtedly received notice of the charges from both
his counsel and his court appearances on those charges. The District Court sentenced Arion
on June 21, 2021, and it has since set a hearing for the restitution amount.
This Court reviewed the Warrant to Arrest Parolee. The listed parole violation was:
"Laws & Conduct: New Felony. Accountability to Theft." His attached copy of this
Warrant also provides notice of the parole violation as well as the reason that he is not
entitled to bail or to a prompt appearance before the Board. The revocation of parole is not
part of the criminal prosecution. Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593,
2599-2600 (1972). The arrest warrant was issued pursuant to § 46-23-1023, MCA, and
states,"OFFENDER IS NOT ENTITLED TO BOND." See also § 46-23-1024(6), MCA
("The provisions of Title 46, chapter 9, regarding release on bail of a person charged with
a crime are not applicable to a parolee ordered to be held in a county detention center or
other facility under this section."). A seventy-two-hour hold does not apply to Arion,
pursuant to §§ 46-23-1023(4)(a),(b), MCA, due to the new charges. "After the arrest of
the parolee, an initial hearing must be held unless[,] . . . the parolee has been charged in
any court with a violation ofthe law[.]" Section 46-23-1024(1)(b), MCA. Arion has been
charged and now sentenced in a District Court. Arion may be held in jail during the
pendency of his new criminal case.
"Parole . . . is a discretionary grant of freedom from incarceration."
McDermott v. McDonald, 2001 MT 89, ¶ 24, 305 Mont. 166, 24 P.3d 200. Arion is not
entitled to reinstatement of parole or to dismissal of his parole violations. He has not
demonstrated that he is illegally incarcerated. Section 46-22-101(1), MCA.
IT IS THEREFORE ORDERED that Arion's Petition for a Writ of Habeas Corpus
is DENIED and DISMISSED.
2
The Clerk is directed to provide a copy ofthis Order to the Honorable Kathy Seeley,
First Judicial District Court; to Angie Sparks, Clerk of District Court, under
Cause No. DC-2020-621; to Ann Penner, Lewis and Clark County Attorney's Office; to
Jon Moog,Defense Counsel; to SheriffPat Roos, Custer County; to counsel ofrecord; and
to Ryan Arion personally.
DATED this t),+" day of July, 2021.
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Justices
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