Henderson v. Salmonsen ( 2023 )

OhIGINAL 11/14/2023
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 23-0627
OP 23-0627
FiLED
JERRY HENDERSON,
NOV 14 2023
Bowen Greenwood
Petitioner, Clerk cr Cnurt
State) of montana
v.
ORDER
JIM SALMONSEN, WARDEN,
Montana State Prison,
Respondent.
By way of habeas corpus, Jerry Henderson challenges his conviction and sentence,
alleging that the charging documents to commence his prosecution or "these informations,
of every kind, are confined by the Constitutional law to mere misdemeanors only[.]" Citing
to Blackstone's Commentaries and 19th century case law, Henderson claims that his
conviction is void and that "the 'King's Bench' [now] is codified Constitutional law out of
the United States Supreme Court, and in use in the Colony(s) which [later] became the
United States of America." He requests his immediate release from prison because his
incarceration is illegal on the basis that the State commenced his criminal prosecution via
an Information in the Eighteenth Judicial District Court, Gallatin County.
On January 22, 2019, we issued an Order vacating Henderson's February 24, 2016
Sentencing Order and remanding the criminal matter to the District Court either to enter a
new plea agreement or to proceed to trial. The State had filed a Notice of Concession to
Henderson's argument that "the District Court violated § 46-12-204(4), MCA, when it
accepted his no contest plea to sexual assault [] and imposed a sentence based on that plea."
State v. Henderson, No. DA 17-0593, Order remanding matter (Mont. Jan. 22, 2019).
Henderson is serving a thirty-year prison sentence with fifteen years suspended after
entering a guilty plea via Alford to felony sexual assault in July 2019.1 See North Carolina
v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970). The court awarded 2,291 days of credit for
time served previously.
Henderson cites § 1-1-105, MCA, as a basis for his arguments. That section reads:
"The organic law is the constitution of government and is altogether written. Other written
laws are denominated statutes. The written law of this state is therefore contained in its
constitution and statutes and in the constitution and statutes of the United States." Within
that same title and chapter, a statute provides that Montana law should take precedence.
"In this state there is no common law in any cae where the law is declared by statute."
Section 1-1-108, MCA. Under § 1-1-109, MCA, "[t]he common law of England . . . is the
rule of decision in all the courts of this state[,]" as long as it is not "inconsistent with" the
laws of constitution of this State.
Montana's Legislature has declared by statute that an information is one method to
charge an offender with a felony criminal' offense. Section 46-11-101(3), MCA. This
Court has held that Montana statutes offer four methods to commence a prosecution in this
state, one of which is "an information after leave of court has been granted[.]" State v.
Montgomery, 2015 MT 151, ¶ 11, 379 Mont. 353, 350 P.3d 77; § 46-11-101(3), MCA.
" [A] defendant is not entitled to any specific procedure." Montgomery, ¶ 11 (citing State
v. Haller, 2013 MT 199, ¶ 8, 371 Mont. 86, 306 P.3d 338) (internal citation omitted). If
the State commences prosecution by filing an application and an affidavit that identifies
supporting evidc,nce demonstrating probable cause, the district court has subject matter
jurisdiction to proceed "over the felonies as stated in Mont. Const. art. VII, § 4(1) and
§ 3-5-302(1)(a), MCA[.]" Montgomery, ¶ 11.
We conclude that Henderson is not entitled to a writ of habeas corpus. The State of
Montana commenced his felony prosecution according to Montana's Constitution and
' This Court denied Henderson's Petition for Out-of-Time Appeal in January 2022 because he did
not demonstrate extraordinary circumstances. We explained Henderson's history in more detail
in that Order. State v. Henderson, No. DA 22-0010, Order denying Petition (Mont. Jan. 18, 2022).
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statutes by filing an application and supporting affidavit for leave of court to charge
Henderson by information. Section 46-11-201(2), MCA (2011). See Montgomery,
¶¶ 9-11; Mont. Const. art. II, § 20(1); §§ 46-11-101(3), and 46-11-102(1), MCA. The
District Court had subject matter jurisdiction, and the Judgment is not void. Henderson has
not demonstrated illegal incarceration. Section 46-22-101(1), MCA. Accordingly,
IT IS ORDERED that Henderson's Petition for Writ of Habeas Corpus is DENIED
and DISMISSED.
IT IS FURTHER ORDERED that this case is CLOSED as of this Order's date.
The Clerk is directed to provide a copy of this Order to counsel of record and to
Jeny Henderson person,..,
DATED this I ci &y of November, 2023.
-,0i 4/7;4 1 Chief Justice
(94 Ai 411-..
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