Pulst v. State of Montana ( 2023 )

ORIGINAL 10/31/2023
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 23-0603
OP 23-0603
DONALD W. PULST,
Petitioner,
v. ORDER
STATE OF MONTANA, FILE
Respondent. OCT 31 2023
Bowen Greenwood
Clerk of Supreme Court
State of Montana
Representing himself, Daniel Wayne Pulst has filed a Petition for Writ of Habeas
Corpus, indicating that he is entitled to good time that has not been credited against his
sentence and that his incarceration is illegal. He states that he "compteted SOP-1 and
SOP-2 and [he's] threatened with re-Incarceration if [he does] not complete it again."' He
writes that none of the MSOTA counselors in the Great Falls area have Openings in their
calendars to take him.2 Pulst requests a court order allowing hirn "to use the services of
any licensed provider if required by [his] parole officer."
Some background is necessary here. Available electronic records indicate that, in
2013, a jury found Pulst guilty of sexual intercourse without consent, two counts of sexual
assault, and misdemeanor indecent exposure. The Hill County District Court sentenced
Pulst to concurrent prison terms: thirty years with twenty years suspended for the sexual
intercourse without consent conviction and twenty years with ten years suspended for each
sexual assault conviction. He also received a six-month jail term for the misdemeanor.
Pulst appealed. This Court affirmed in part, reversing the written judgment to correct three
conditions. State v. Pulst, 2015 MT 134, 379 Mont. 494, 351 P.3d 687 (Pulst I).
I SOP is sex offender treatment prograrn, also offered at the Montana State Prison.
2 MSOTA stands for Montana Sexual Offender Treatment Association.
In 2017, the State sought to revoke the sentences for the sexual offense convictions.
The District Court held a hearing on the violations of his conditions and revoked his
sentence. On March 29, 2018, the District Court sentenced him to twenty years at the
Montana State Prison (MSP) with fourteen years suspended for the first felony, and the
court imposed suspended, ten-years terms for the two sexual assault convictions. Pulst did
not appeal.
In January 2021, the State sought another revocation of Pulses sentence. The
District Court resentenced Pulst. Through counsel, Pulst appealed. We reversed the
revocation of Pulse s 2018 sentence and vacated the sentence imposed on February 5, 2021.
State v. Pulst, 2023 MT 162, ¶¶ 3, 14, 413 Mont. 197, 534 P.3d 128 (Pulst II). We stated
that "[Ole District Court, in essence, found an anticipatory probation violation" when Pulst
did not obtain a MSOTA clinical member prior to his release into the community when the
correlating condition did not require that. Pulst II, ¶ 6. We pointed out:
Pursuant to § 46-18-203(7), MCA, the District Court was required to
find Pulst violated condition 10. dd. as a predicate to exercising its authority
to impose a new sentence. Here, like Beam, the timeline for completing sex
offender treatment by the condition's plain language is inconsistent with the
State's position and the District Court's conclusion that Pulst violated
condition 10. dd. The plain language of condition 10. dd. contained in the
2018 Order and Sentence requires Pulst enter and complete sex offender
' treatment within 3 years of release into the community, not that he have
treatment lined up before his release. The District Court had no authority to
revoke Pulst's sentence and impose a new sentence on the basis that Pulst
did not have MSOTA sex offender treatment arranged prior to release to the
suspended portion of his sentence as no such requirement was contained in
condition 10. dd. of the 2018 Order and Sentence on Petition to Revoke.
Pulst II, ¶ 13. (Emphasis in original.) This Court re-imposed his sentence from March 29,
2018.
Here, instead of an anticipatory probation violation, we have anticipatory
incarceration by Pulst. This Court observes that Pulst is not incarcerated. Since
September 7, 2023, Pulst has been under the supervision of the Probation and Parole Office
in Great Falls. The habeas corpus "statute allows a prisoner to challenge the legal
sufficiency of the cause for incarceration." Gates v. Missoula County Comm 'rs, 235 Mont.
2261, 262, 766 P.2d 884, 884 (1988). Pulst has not alleged that the cause of his incarceration
is unlawful. We remind Pulst that he must enter and complete sex offender treatment in
the community within three years, according to the March 29, 2018 Order and Sentence.
Pulst's remedy is not with this Court. Pulst is not entitled to good time credit
because he committed his offenses well after 1995. His attached sentence calculation
reflects that the MSP Records Department updated his sentences on September 7, 2023.
Pulst is under the supervision of the Department of Corrections (DOC), whether he is on
probation or parole. Sections 46-23-1 0I1 and -1021, MCA. His remedy lies with the DOC.
He may work with his supervising officer and place his request in writing to the DOC
concerning the lack of available treatment providers where he has been placed.
Accordingly,
IT IS ORDERED that Pulst's Petition for Writ of Habeas Corpus is DENIED and
DISMISSED.
The Clerk is also directed to provide a copy to counsel of record and to Daniel
Wayne Pulst personally.
DATED this I( day of October, 2023.
Chief Justice
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