W. Aviles v. Capt. Kowalski

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03/07/2023
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: OP 23-0116
OP 23-0116
WAYNE ANTHONY AVILES, MAR 0 7 2923
Bow- -n
Clerk of Supreme Court
Petitioner, State of montane
v. ORDER
CAPTAIN JASON KOWALSKI,
Respondent.
Self-represented Petitioner Wayne Anthony Aviles has filed a Petition for Writ of
Habeas Corpus, requesting full exoneration and expungement of charges from his record,
his immediate release from prison, and a large amount of restitution. Aviles alleges illegal
incarceration due to his "illegal sentence" because it is a five-year, unsuspended term to
the Department of Corrections (DOC). Aviles contends that his sentence violates his right
to be free from double jeopardy. He also lists at least fifteen claims, such as conflict of
interest, ineffective assistance of counsel, and violations of other constitutional rights.
Aviles includes 192 pages of attachments. He is currently placed at the Missoula
Assessment Sanction Center (MASC).
On October 10, 2017, the Tenth Judicial District Court, Fergus County, sentenced
Aviles for felony sexual intercourse without consent to the DOC for an unsuspended
ten-year term. The District Court later amended the sentence on the State's motion, holding
a hearing on January 4, 2018, and imposing a ten-year DOC term with five years
suspended. Aviles did not appeal.
In open court on May 24, 2022, the District Court revoked Aviles's suspended
sentence because of violations. The court imposed a five-year, unsuspended term and
awarded credit for time served as well as street time. Aviles did not appeal his sentence
upon revocation.
Upon review, Aviles's five-year unsuspended sentence is lawful and valid because
it is a sentence upon revocation. Pursuant to § 46-18-203(7)(a)(iii), MCA, a sentencing
court may revoke the suspension of the sentence and impose any term that is not longer
than the original sentence. Upon revocation, Aviles received a five-year sentence, which
is not longer than his original ten-year sentence with five years suspended. Section
46-18-203(7)(a)(iii), MCA. Aviles's sentence does not violate the right to be free from
double jeopardy. This Court has stated that "revocation of a suspended sentence based
upon violations of probationary conditions and reinstatement of the sentence does not
violate a person's constitutional rights against double jeopardy[.]" State v. Dewitt, 2006
MT 302, ¶ 10, 334 Mont. 474, 149 P.3d 549.
Aviles's other claims cannot be addressed through the remedy of habeas corpus.
Section 46-22-101(1), MCA. His litany of claims would be more appropriately raised in
direct appeal, and at this point, he is time-barred to challenge his conviction and sentence
through an appeal. Section 46-22-101(2), MCA.
Aviles retains the remedy of filing a petition for postconviction relief with the
District Court. He may raise the claims concerning his counsel's representation through
such a petition. See §§ 46-21-101 through 46-21-105, MCA. Under Montana law, Aviles
is procedurally barred to challenge his sentence upon revocation through the remedy of
habeas corpus. Section 46-22-101(2), MCA. Aviles is not entitled to his requests of
exoneration, dismissal of charges, release, or restitution. Therefore,
IT IS ORDERED that Aviles's Petition for Writ of Habeas Corpus is DENIED and
DISMISSED.
The Clerk of the Supreme Court is directed to provide a copy of this Order to:
Captain Kowalski, couQ.Wf record, and Wayne Anthony Aviles personally.
DATED this 1—, day of March, 2023.
Chief Justice
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Justices
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