Lott v. State

No. 05-617
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 279______________
JASON LEE LOTT, )
)
Petitioner, )
) OPINION
v. ) and
) ORDER
STATE OF MONTANA, )
)
Respondent. )
______________
¶1 On June 2, 1992, the Montana Eighteenth Judicial District Court, Gallatin County,
sentenced Jason Lee Lott to fifty years in Montana State Prison on four separate counts:
Count I, ten years for aggravated kidnapping, with a ten-year sentence enhancement for
use of a dangerous weapon, a hunting knife, to run consecutively with the aggravated
kidnapping sentence, for a total of twenty years; Count II, twenty years for sexual
intercourse without consent, with a ten-year sentence enhancement for use of a dangerous
weapon, a hunting knife, to run consecutively with the sexual intercourse without consent
sentence, for a total of thirty years; Count III, ten years for aggravated burglary, with a
ten-year sentencing enhancement for use of a dangerous weapon, a hunting knife, to run
consecutively for a total of twenty years; and Count IV, ten years for felony assault, with
a ten-year enhancement for use of a dangerous weapon, a hunting knife, to run
consecutively with the felony assault sentence, for a total of twenty years. The court
ordered Counts I and II to run concurrently and Counts III and IV to run concurrently.
1
¶2 In the time since the court sentenced Lott, we ruled in State v. Guillaume, 1999
MT 29, ¶ 16, 293 Mont. 224, ¶ 16, 975 P.2d 312, ¶ 16, that application of the weapons
enhancement to a felony offense that itself requires proving the use of a weapon violates
Montana’s constitutional protection against double jeopardy. We reasoned that Article II,
Section 25 of the Montana Constitution offers protection against “multiple prosecutions
for offenses arising out of the same transaction, and multiple punishments imposed at a
single prosecution . . . .” Guillaume, ¶ 8. A few years later, in State v. Whitehorn, 2002
MT 54, ¶ 45, 309 Mont. 63, ¶ 45, 50 P.3d 121, ¶ 45, we held that Guillaume applies
retroactively and clarified that felony assault with a weapon and aggravated burglary
(since the offenses themselves require use of a weapon) are the only offenses that may
not be enhanced under § 46-18-221, MCA. Whitehorn, ¶ 45.
¶3 Pursuant to Guillaume and Whitehorn, Lott now argues that the District Court
unconstitutionally enhanced his sentence in violation of the prohibition against double
jeopardy. 1 In response, the State contends that Lott is prohibited from making such an
argument at this juncture. Characterizing Lott’s petition as a writ of habeas corpus, the
State asserts that under § 46-22-101(2), MCA, the writ of habeas corpus “is not available
to attack the validity of the conviction or sentence of a person who has been adjudged
guilty of an offense in a court of record and has exhausted the remedy of appeal.” The
State further notes that although Lott could have raised any constitutional arguments on
1
Although Lott asserts three separate grounds for relief [(1) his sentence violates
his right against double jeopardy; (2) he did not receive a jury trial pursuant to the Sixth
Amendment; and (3) he did not knowingly plead guilty to the sentence enhancement
provisions in violation of the Fourteenth Amendment], for purposes of this Opinion, we
need only address the double jeopardy argument.
2
direct appeal or in a petition for postconviction relief, he did not, and he is time-barred
from relief under the postconviction statute, § 46-21-102, MCA, which during the time
period relevant to Lott’s 1992 conviction required a petitioner to file within five years of
sentencing.2
¶4 In light of Guilluame and Whitehorn, it is apparent that the District Court
unconstitutionally enhanced Lott’s sentence with regard to the aggravated burglary and
felony assault convictions. However, under the current statutory scheme, relief is
unavailable to Lott, as he is time-barred from filing either a direct appeal or a petition for
postconviction relief, and the habeas corpus statute prohibits Lott, who pled guilty and
failed to appeal (thereby exhausting his remedy of appeal), from challenging his sentence.
See § 46-21-102, MCA, and § 46-22-101(2), MCA. Given Montana’s constitutional right
to habeas corpus provided for in Article II, Section 19, the issue we address today is
whether the procedural bar established in the current habeas corpus statutory scheme is
unconstitutional as applied to a facially invalid sentence. We hold that, as applied to
Lott, it is.
The Writ of Habeas Corpus: A Brief Overview
¶5 In 1807, Chief Justice Marshall referred to the writ of habeas corpus as a “great
constitutional privilege.” Ex Parte Bollman and Ex Parte Swartwout, 4 Cranch 75, 95, 2
2
The present one-year filing requirement for postconviction relief went into effect
on April 24, 1997, and applies to all persons convicted on or after April 24, 1996. State
v. Wright, 2001 MT 247, ¶ 9, 307 Mont. 100, ¶ 9, 38 P.3d 772, ¶ 9. Individuals convicted
prior to that date are subject to the previous five-year filing deadline. Hawkins v.
Mahoney, 1999 MT 82, ¶ 9, 294 Mont. 124, ¶ 9, 979 P.2d 697, ¶ 9. Since Lott was
convicted in 1992, the five-year time period applies.
3
L.Ed 554, 561 (1807). Literally meaning “you have the body,” habeas corpus ensures the
integrity of the legal process resulting in imprisonment. Originating in the English
common law, habeas corpus is a form of collateral attack that functions as an independent
proceeding “to determine whether a defendant is being unlawfully deprived of his or her
liberty.” Black’s Law Dictionary 709 (6th ed., West 1990). “Its root principle is that in a
civilized society, government must always be accountable to the judiciary for a man’s
imprisonment: if the imprisonment cannot be shown to conform with the fundamental
requirements of law, the individual is entitled to immediate release.” Fay v. Noia, 372
U.S. 391, 402, 83 S. Ct. 822, 829 (1963) (overturned in part on other grounds).
¶6 The so-called “Great Writ of Liberty” existed long before the founders of this
nation provided for its protection in Article I, Section 9, Clause 2, of the United States
Constitution. “[A] writ antecedent to statute [with] roots deep into the genius of our
common law,” Fay, 372 U.S. at 400, 83 S. Ct. at 828, English judges and legal authorities
described habeas corpus as “the birthright of the people,” and “one of the most important
safeguards of the liberty of the subject.” Donald E. Wilkes, Jr., Federal and State
Postconviction Remedies and Relief 41 (Harrison 1992). The first known habeas corpus
proceeding in the American colonies took place in Virginia in 1682. By the time the
founding fathers ensured for its protection in the federal constitution, habeas corpus had
already become an established right in the United States. Wilkes, hereinafter
Postconviction Remedies at 76, 78.
¶7 “Although in form the Great Writ is simply a mode of procedure, its history is
inextricably intertwined with the growth of fundamental rights of personal liberty.” Fay,
4
372 U.S. at 401, 83 S. Ct. at 828-29. The original common-law interpretation of habeas
corpus only applied relief to defendants challenging the trial court’s jurisdiction. With
time, however, habeas corpus became a collateral remedy for constitutional error. Ira P.
Robbins, Habeas Corpus Checklists 141 (Thomson/West 2006). At the federal level,
habeas corpus relief was codified by Congress in Chapter 153 of Title 28 of the United
States Code, specifically 28 U.S.C. §§ 2241 through 2255. Wilkes, Postconviction
Remedies at 196. In addressing Congress’s authority to define and condition the writ, the
United States Supreme Court has recognized that “the power to award the writ by any of
the courts of the United States, must be given by written law,” and also that “judgments
about the proper scope of the writ are ‘normally for Congress to make.’” Felker v.
Turpin, 518 U.S. 651, 664, 116 S. Ct. 2333, 2340 (1996) (citing Ex parte Bollman, 4
Cranch 75, 94 (1807) and Lonchar v. Thomas, 517 U.S. 314, 323, 116 S. Ct. 1293, 1298
(1996)). The Supreme Court concluded that, in regards to statutory restrictions placed on
second habeas petitions, such Congressional restrictions “do not amount to a ‘suspension’
of the writ contrary to Article I, § 9” of the United States Constitution. Felker, 518 U.S.
at 664, 116 S. Ct. at 2340. In contrast to the United States Supreme Court’s deference to
Congress’s judgment about the proper scope of the federal writ, we conclude that
Montana’s guarantee of the privilege of habeas corpus embodies a fundamental, intrinsic
principle: the right to challenge the cause of one’s imprisonment. In Montana, therefore,
there are inherent limits on the Legislature’s ability to define or restrict the scope of the
writ because the fundamental principle of the writ cannot be “suspended” under Article
II, Section 19 of the Montana Constitution.
5
¶8 Until the mid-1930s, postconviction habeas corpus relief for state prisoners in state
court was narrowly available and generally not applied to defendants imprisoned
pursuant to a criminal conviction unless the conviction or sentence was void for lack of
jurisdiction. Wilkes, Postconviction Relief at 107. State courts, however, often
recognized as a ground for habeas corpus relief a claim that the statute or ordinance
defining the offense for which the defendant had been convicted was unconstitutional, or
that the sentence was in excess of the statutory maximum, or otherwise unauthorized.
Wilkes, Postconviction Remedies at 107. After 1935, the states began the process of
expanding and modernizing their postconviction remedies and by 1970, nearly three-
quarters of the states had in some form or another expanded the availability of
postconviction relief by a process of liberal interpretation of the writ of habeas corpus
and/or the writ of error coram nobis. Wilkes, Postconviction Remedies at 112-13.
Today, all states have a modern postconviction remedy authorized by case law, statutory
enactment, or promulgation of a rule of court. Wilkes, Postconviction Remedies at 546.
Habeas Corpus and Postconviction Relief in Montana
¶9 In Montana, the writ of habeas corpus was first provided for in Article III, Section
21, of the 1889 Constitution. A few decades later, in 1927, this Court explained,
The purpose of a writ of habeas corpus is to determine the legality or
illegality of the restraint alleged to be exercised. It is available only to
those persons, or on behalf of those persons, unlawfully imprisoned or
restrained of their liberty, and is independent of the legal proceeding under
which the detention is sought to be justified.
August v. Burns, 79 Mont. 198, 213, 255 P. 737, 741 (1927) (citations omitted).
6
¶10 Initially, habeas corpus relief in Montana not only provided for cases where
individuals were jailed without charge, but also served as the principal postconviction
remedy, used to attack convictions and sentences where judgment of the convicting court
was void for lack of jurisdiction. The writ was also available to raise certain claims
unrelated to the validity of the conviction or sentence. Donald E. Wilkes, Jr., State
Postconviction Remedies and Relief vol. 2, 311 (Harrison 2001).
¶11 In 1967, the legislature enacted the Montana Post-Conviction Hearing Act
(MPCHA) to explain the parameters of habeas corpus petitions, which included
postconviction claims. The MPCHA, an amalgam of the 1955 Uniform Post-Conviction
Procedure Act (UPCPA) and the Illinois Post-Conviction Hearing Act, was designed to
combat shortcomings in postconviction procedures. Generally, until MPCHA’s
enactment, both pre-charge and postconviction claims alleging an illegal constraint were
referred to as petitions for “writs of habeas corpus.” 3 The MPCHA essentially divided
pre-charge claims from postconviction claims by creating two separate chapters: “Post-
Conviction Hearing” and “Habeas Corpus.” The legislation established jurisdiction in the
district courts, provided filing requirements and procedures for hearing postconviction
petitions, and limited successive petitions. Jeffrey T. Renz, Post-Conviction Relief, 55
Mont.L.Rev. 331, 334-36 (1994). In accordance with this statutory mandate, since 1967,
3
See Bubnash v. State, 139 Mont. 639, 366 P.2d 867 (1961) (this Court addressed
a petition for habeas corpus alleging that the trial court denied effective assistance of
counsel and abused its discretion in refusing to fix bail); In re Alden’s Petition, 143
Mont. 457, 391 P.2d 701 (1964) (petition of habeas corpus alleging due process and
equal protection violations); In re Davis’ Petition, 141 Mont. 565, 380 P.2d 880 (1963)
(petition for habeas corpus alleging ten postconviction issues).
7
this Court has generally characterized most postconviction motions as petitions for “post-
conviction relief,” rather than “writs of habeas corpus.” Renz, 55 Mont.L.Rev. at 336.
¶12 In 1972, with ratification of Article II, Section 19, of the new constitution,
Montana again provided for constitutional protection of the right to habeas corpus,
providing that “[t]he privilege of the writ of habeas corpus shall never be suspended.”
Over the years, since the enactment of the MPCHA and the 1972 Constitution, the
legislature has amended the habeas corpus and postconviction statutes in an effort to limit
access to the postconviction remedy. The original 1967 MPCHA habeas corpus chapter
stated:
95-2701. Who may prosecute writ. Every person imprisoned or
otherwise restrained of his liberty, within this state, may prosecute a writ of
habeas corpus to inquire into the cause of such imprisonment or restraint,
and if illegal to be delivered therefrom.
¶13 The postconviction chapter, on the other hand, provided parameters for when a
petitioner could challenge an imposed sentence, specifying that such relief is interrelated
to habeas corpus:
95-2601. Petition in the trial court. Any person adjudged guilty of
an offense in a court of record who has no adequate remedy of appeal and
who claims sentence was imposed in violation of the constitution or the
laws of this state or the Constitution of the United States, or that the court
was without jurisdiction to impose such sentence, or that sentence was in
excess of the maximum authorized by law, or is otherwise subject to
collateral attack, upon any ground of alleged error available under writ of
habeas corpus, writ of coram nobis, or other common law or statutory
remedy may move the court which imposed the sentence or the supreme
court or any justice of the supreme court to vacate, set aside, or correct the
sentence. [Emphasis added.]
8
¶14 In 1981, the legislature implemented its first amendments to the habeas corpus
chapter, specifying that any claims challenging the validity of a sentence should be filed
pursuant to the postconviction statutes:
46-22-101. Who may prosecute writ. (1) Except as provided in
subsection (2), every person imprisoned or otherwise restrained of his
liberty, within this state may prosecute a writ of habeas corpus to inquire
into the cause of such imprisonment or restraint, and if illegal, to be
delivered therefrom.
(2) Relief under this chapter is not available to attack the validity of
the conviction of a person who has been adjudged guilty of an offense in a
court of record and has exhausted his remedy of appeal. Relief for such
purposes is limited to the provisions of Title 46, chapter 21 [defining
postconviction hearings]. [Emphasis added.]
¶15 Only four years later, in 1985, the legislature again amended the statute to provide
in subsection (2):
Relief under this chapter is not available to attack the validity of the
conviction or sentence of a person who has been adjudged guilty of an
offense in a court of record and has exhausted his remedy of appeal; nor is
relief under this chapter available to attack the legality of an order
revoking a suspended or deferred sentence. Relief for such purposes is
limited to the provisions of Title 46, chapter 21. [Emphasis added.]
¶16 When the legislature initially adopted the MPCHA, the specific postconviction
relief was available “at any time after conviction.” Section 95-2604, RCM (1967). In
1991, the lawmakers imposed a time period, limiting postconviction filings to “any time
within 5 years of the date of conviction.” Section 46-21-102, MCA (1991). Six years
later, the statute was again amended, this time imposing a one-year time limitation,
unless the claim alleges the discovery of new evidence. Section 46-21-102(2), MCA
(1997). The one-year time limitation for postconviction relief remains the law today.
9
¶17 Thus, over the years, the writ of habeas corpus has become largely supplanted by
postconviction statutes which, in turn, have become increasingly restrictive. Today, an
individual incarcerated pursuant to an illegal sentence has one year from the date that his
or her conviction becomes final to file for postconviction relief. Section 46-21-102,
MCA. If an unconstitutionally incarcerated individual misses the time for appeal and the
one-year deadline, he or she is barred from legal recourse.
Lott’s Petition
¶18 Turning to the case at hand, Lott contends that pursuant to Guillaume and
Whitehorn, the District Court unconstitutionally enhanced his sentence in violation of the
prohibition against double jeopardy. In response, the State asserts that habeas corpus
relief is inappropriate because Lott was adjudged guilty and could have raised these
constitutional issues on direct appeal or in a petition for postconviction relief; that, having
failed to raise the issue on appeal, he is now procedurally barred from raising it by way of
habeas corpus, § 46-22-101(2), MCA, and is time-barred from filing a petition for
postconviction relief. See § 46-21-102(1), MCA.
¶19 As mentioned at the outset, we recognize that the current habeas corpus statute
bars an individual such as Lott, who has been adjudged guilty of an offense and has failed
to appeal or has exhausted his remedy of appeal, to attack the validity of his sentence.
We also agree with the State that the direct appeal and postconviction remedies are no
longer available to Lott because the statutory time periods have passed. It is imperative
to note, however, that had Lott filed a timely direct appeal or petition for postconviction
relief, his double jeopardy argument would have been unavailing since the decisions on
10
which he relies (Guillaume and Whitehorn) were not issued until well after both filing
dates had expired.
¶20 The procedural bar blocking Lott from seeking habeas corpus relief on his double
jeopardy claim is troubling to this Court given that Lott’s sentence was clearly enhanced
beyond constitutional limitations. The central function of the courts is the pursuit of
justice. Like all human endeavors, this pursuit is occasionally flawed. The writ of habeas
corpus is designed to correct such flaws and to remedy “extreme malfunctions in the state
criminal justice systems.” Jackson v. Virginia, 443 U.S. 307, 332 n.5, 99 S. Ct. 2781,
2796 n.5 (1979) (Stevens, J., concurring). Habeas corpus affords relief to those in society
who have been “grievously wronged.” Brecht v. Abrahamson, 507 U.S. 619, 637, 113
S. Ct. 1710, 1721 (1993). “From the time of the Magna Charta, the Great Writ of Habeas
Corpus has been liberally employed as a means of guaranteeing that [justice] be
accomplished and that a miscarriage of justice will be remedied. For at its heart, the writ
represents an acknowledgment of the principle that the rights of freedom of the individual
are worthy of protection.” State v. Perry, 232 Mont. 455, 462-63, 758 P.2d 268, 273
(1988) (citations omitted), overruled on other grounds State v. Clark, 2005 MT 330, ¶ 32,
330 Mont. 8, ¶ 32, 125 P.3d 1099, ¶ 32.
¶21 The Montana Constitution provides in Article II, Section 19, that “[t]he privilege
of the writ of habeas corpus shall never be suspended.” We can only assume that when
the delegates to the 1972 Constitutional Convention enacted this provision, they intended
to enshrine habeas corpus as recognized and applied in Montana as of 1972. As noted
above, in the decades leading up to the 1972 Constitution, the writ of habeas corpus had
11
been applied to both pre-charge and postconviction claims. While the MPCHA
statutorily defined postconviction relief in a chapter separate from habeas corpus,
enactment of the 1967 legislation was designed to provide more postconviction relief
than habeas corpus, not less. In the years since MPCHA’s enactment, however, the
legislature has slowly but progressively narrowed the scope and availability of
postconviction relief.
¶22 In light of the writ’s history and purpose, as well as Montana’s constitutional
guarantee in Article II, Section 19, that the writ of habeas corpus shall never be
suspended, we conclude that, as applied to a facially invalid sentence—a sentence which,
as a matter of law, the court had no authority to impose—the procedural bar created by
§ 46-22-101(2), MCA, unconstitutionally suspends the writ. We hold that incarceration
of an individual pursuant to a facially invalid sentence represents a “grievous wrong,”
Brecht, 507 U.S. at 637,113 S. Ct. at 1721, and a “miscarriage of justice,” Perry, 232
Mont. at 462, 758 P.2d at 273, warranting habeas corpus relief. When the delegates
ratified the 1972 Constitution, they intended, at a minimum, that an individual
incarcerated pursuant to a facially invalid sentence—for example, a sentence which either
exceeds the statutory maximum for the crime charged or which violates the constitutional
right to be free from double jeopardy—have the ability to challenge its legality.
¶23 The petition for writ of habeas corpus is hereby granted. Since Lott has
challenged his sentence and not the underlying conviction, he “is not entitled to be
released but only to be resentenced.” Petition of Gray, 184 Mont. 363, 365, 603 P.2d
230, 231 (1979). Resentencing is also consistent with our holding in Guillaume, ¶ 25, the
12
decision upon which Lott relies. This matter is remanded to the District Court for
resentencing on Counts 3 and 4.
DATED this 27th day of October, 2006.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ BRIAN MORRIS
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ JIM RICE
13