Wombolt v. Salmonsen

ORIGINA1 07/26/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 22-0359
OP 22-0359
SCOTT WOMBOLT,
JUL 2 6 2022
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Petitioner, CI- .
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ORDER
JAMES SALMONSEN, Warden,
Montana State Prison,
Respondent.
Scott Wombolt petitions this Court for habeas corpus relief, contending that the
Board of Pardons and Parole (Board) has violated Montana statutes in revoking his parole
without applying the Montana Incentives and Interventions Grid (MIIG) as well as
imposing the 120-day requirement of clear conduct before parole.
Wombolt puts forth that his incarceration is illegal. He explains that the Justice
Court of Butte-Silver Bow County dismissed his charge of criminal possession of
dangerous drugs and that he was sent to prison. He states that the Board revoked his parole
"because of a few traffic tickets." He adds that, according to the Board, he must stay in
prison for 120 days, which he contends violates § 46-23-1025, MCA. Wombolt argues
that the Board should have applied the MIIG, pursuant to § 46-23-1028, MCA, to him
instead of revoking his parole. He requests his immediate release from prison.
Available electronic records indicate that Wombolt was under supervision when he
was charged with the offense on January 6, 2022, and then held in the Butte-Silver Bow
County Detention Center. Wombolt also had a hold placed on him. Wombolt was
transported to prison on April 6, 2022, prior to his revocation hearing in May.
As Wombolt correctly references, the Montana parole revocation process is
governed by statutes and administrative rules. Sections 46-23-1021, 46-23-1023,
46-23-1024, and 46-23-1025, MCA; Admin R. M. 20.25.801 (2012). Wombolt's
confiision concerns his parole revocation even though his offense was dismissed. The State
charged Wombolt with felony criminal possession of dangerous drugs, in violation of the
condition to comply with laws and conduct. Even though the Justice Court dismissed
Wombolt's criminal charge on the State's motion in March 2022, the Board may consider
Wombolt's conduct related to the charged offense. Wombolt's conduct related to the
charged new criminal offense could be considered non-compliance. "' Compliance
violation' means a violation of the conditions of supervision that is not[,]" for Wombolt's
circumstances, "a new criminal offense[.]" Section 46-23-1001(3)(a), MCA. While the
Justice Court did not convict him for the offense, the Board may consider the offense and
evidence of it under its broad authority. McDermott v. McDonald, 2001 MT 89, ¶ 20, 305
Mont. 166, 24 P.3d 200. The Board "may consider evidence of offenses which were
charged in dismissed counts." McDermott, ¶ 20 (citations omitted).
Section 46-23-1028, MCA, only applies to compliance violations. Because
Wombolt had been charged with committing a felony offense in January 2022, his Parole
Officer did not apply the MIIG to him. Section 46-23-1001(3)(a), MCA. His Parole
Officer was then required by statute to report this violation to the Board. Section 46-23-
1025(1), MCA. The Board considered the Report of Violation, which listed Wombolt's
new offense as a non-compliance violation, and once advised of the conduct constituting
commission of the offense—even though the offense was later dismissed—properly
revoked Wombolt's parole.
Lastly, the Board must impose 120 days of clear conduct. According to its rules,
"an offender in a secure facility must have 120 days free of major disciplinary violations."
Admin. R. M. 20.25.305(5) (2012). Wombolt must have 120 days of clear conduct before
he can be considered for parole.
Wombolt is not entitled to his immediate release. The Board has correctly complied
with Montana statutes and rules. We have stated many times that the Board has broad
discretion in parole decisions. McDermott, ¶ 20. Wombolt violated his parole condition
concerning laws and conduct, and the Board had reason to revoke his grant of parole.
Admin. R. M. 20.25.801(16)(e) (2012).
2
"Parole . . . is a discretionary grant of freedom from incarceration." McDermott,
¶ 24. Wombolt violated his parole condition by committing a new offense, and thereby
jeopardizing his "grant of freedom" by the Board. He has not demonstrated illegal
incarceration. Section 46-22-101(1), MCA. Accordingly,
IT IS ORDERED that Wombolt's Petition for Writ of Habeas Corpus is DENIED.
The Clerk is directed to provide a copy of this Order to counsel of record and to
Scott Wombolt personally.
DATED this Z.4, day of July, 2022.
Chief Justice
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Justices