Lowry v. Capt. Bragg ( 2022 )

03/08/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 22-0095
OP 22-0095
BOBBY FRANCIS LOWRY V,
Petitioner, NIAR 0 8 2022
Gre.cEanwood
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v. fi iionta
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CAPTAIN BRADLEY BRAGG, LEWIS
AND CLARK COUNTY JAIL,
Respondent.
Bobby Francis Lowry petitions this Court for habeas corpus relief, clairning that the
Department of Corrections (DOC) has incorrectly calculated his sentence, thereby illegally
extending his parole eligibility and discharge dates. Lowry further argues that he is being
held in jail and that his bail is excessive. Since the filing of his Petition, Lowry has rnoved
this Court to attach a document to his pleading. We grant the filing of these attachments
as exhibits to his Petition.
This Court is familiar with Lowry, having entertained fourteen matters in less than
six years. Lowry has three criminal convictions from two cases in the Gallatin County
District Court. In May 2017, the District Court committed Lowry to the DOC for felony
theft by embezzlement to a ten-year term with five years suspended (hereinafter first
sentence). Lowry appealed on the issue of restitution. State v. Lowry, 2019 MT 191,
397 Mont. 11, 446 P.3d 1148. In August 2017, the District Court sentenced Lowry to the
Montana State Prison (MSP) for two concurrent five-year terms for felony promoting
prostitution of his wife and for felony partner or family member assault (hereinafter second
sentence). The court ran the second sentence consecutively to his first sentence. He did
not appeal.'
'In 2019, this Court denied his petition for an out-of-time appeal. State v. Lowry, No. DA 19-0190,
Order (Mont. Apr. 9, 2019).
In 2018, Lowry sought habeas corpus relief with this Court concerning a timely
appearance before the Board of Pardons and Parole (Board). See Lowry v. Guyer,
No. OP 18-0610, Order (Mont. Jan. 22, 2019) (consolidated with No. OP 18-0663). In
response, the DOC provided calculations for his sentences frorn Gallatin County.
Lowry now raises several issues along with an alleged sentence rniscalculation and
excessive bail. He contends that he did not violate a condition or term of his probation
because he "discharged his five-year DOC sentence." He notes that a petition to revoke
was filed in Gallatin County for his first sentence—that he deems controlling—due to new
offenses for which he was arrested in Lewis and Clark County in March 2021. Lastly,
Lowry argues that his bail of $100,000 is excessive in Lewis and Clark County because in
2015, his total bail was $50,000 for both cases in Gallatin County.
We point out that Lowry has provided no supporting documents or sentence
calculations. We have relied in part on materials this Court has obtained in connection
with his numerous other petitions. Lowry confuses his first and second sentences. His
second sentence is the controlling sentence because it "requires the longest period of time
served to parole eligibility." Admin. R. M. 20.25.202(3) (2016). The DOC sentence
calculation on file here shows that his second sentence would not commence until February
11, 2020; however, he was parole eligible on both sentences in 2017—June 4 and October
16, respectively. His second sentence has the later date for parole eligibility. Lowry had
to serve the unsuspended, or custodial, portion of his sentences. The first sentence
commenced on March 5, 2016, because of credit for time served, and the prison portion
discharged on March 4, 2021. Lowry states that he discharged his sentence on
March 4, 2020, but he is incorrect because he was granted parole. Lowry is being held on
a DOC hold in jail, and according to his attachments, he violated parole. He still has almost
five years of a suspended sentence on his first sentence to serve with a discharge date of
February 8, 2030.2
2This discharge date could change depending upon the Gallatin County District Court's actions
upon the filed State's Petition to Revoke.
2
His arguments about his sentence calculations lack merit. Under Montana law, any
suspended sentence, such as with his first sentence, inay be revoked due to new offenses.
Section 46-18-203(1), MCA. The Board also inay revoke parole, pursuant to
§ 46-23-1025, MCA. Lowry has not demonstrated that the DOC has incorrectly calculated
his sentences. He has provided no supporting documentation to reach this conclusion, and
he is not entitled to habeas corpus relief. Miller v. Eleventh Judicial District Court,
2007 MT 58, ¶ 11, 336 Mont. 207, 154 P.3d 1186.
Turning to Lowry's last argument about excessive bail, he states that he is in custody
and that he has served half of his sentence. These factors are not deterrninative of a bail
amount. "Bail is a matter within the discretion of the trial court." Grafi? v.
Mont. Fourth Judicial Dist. Court, 2021 MT 201, ¶ 11, 405 Mont. 192, 197, 492 P.3d 1213(citing State v. London, 131 Mont. 410, 425, 310 P.2d 571, 580 (1957)). Lowry has three
criininal cases for five offenses pending in the Lewis and Clark County District Court. The
judge iinposed a bail amount after considering at least twelve factors listed in statute.
Section 46-9-301, MCA. We further point out that Lowry has counsel to represent him in
his underlying proceedings. Lowry should refrain from seeking habeas corpus relief on his
own behalf with this Court while he is represented by counsel in the District Court. State v.
Samples, 2005 MT 210, ¶ 15, 328 Mont. 242, 119 P.3d 1191; M. R. App. P. 10(1)(c).
IT IS THEREFORE ORDERED that Lowry's Petition for Writ of Habeas Corpus
is DENIED and DISMISSED.
The Clerk of the Supreine Court is directed to provide a copy of this Order to counsel
of record; to Leo Gallagher, County Attorney; to Katie Jerstad, Deputy County Attorney;
to Christine Zadra, Defense Counsel; to Victor Bunitsky, Defense Counsel; and to
Bobby Francis Lowry pqs27o:,nally.
DATED this r day of March, 2022.
Chief Justice
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