G. Wallace v. J. Kowalski

09/16/2020
IN THE SUPREME COU OF TFT, E OF MONTANA Case Number: OP 20-0438
, 4%. , 8
OP 20-0438
GREGORY L. WALLACE,
Petitioner,
FILED
v.
Win
CAPTAIN JASON KOWALSKI,DEPARTMENT
OF CORRECTIONS, MISSOULA ASSESSMENT
AND SANCTION CENTER,
Respondent.
Self-represented Petitioner Gregory L. Wallace has returned to this Court with a
verified Petition for a Writ of Habeas Corpus, challenging his sentence and conviction for
felony escape and requesting credit for time served while on probation ("street time").
Wallace has two criminal cases pertinent here. On June 4, 2012, Wallace entered a
plea of no contest in the Yellowstone County District Court to felony driving under the
influence. The District Court sentenced Wallace to a ten-year term as a persistent felony
offender and suspended two years. On October 9, 2015, the Butte-Silver Bow County
District Court accepted Wallace's no contest plea to felony escape in exchange for a
suspended two-year sentence to the Department of Corrections. The District Court ordered
this suspended sentence to run consecutively to his Yellowstone County sentence.'
Wallace did not timely appeal either sentence.'
Since then, the Yellowstone County District Court revoked Wallace's suspended sentence in
2020 and sentenced him to a two-year term.
2 Wallace petitioned this Court for out-of-time appeals ofthe convictions from
both District Courts.
We denied his first petition because he sought an appeal rnore than two and a half years after the
June 2012 Judgment. State v. Wallace, No. DA 15-0101, Order (Mont. Feb. 25, 2015). He
attempted to appeal the October 2015 Judgment on the issue ofjurisdiction after he had entered a
guilty plea to escape. Wallace v. State, No. DA 19-0129, Order(Mont. Mar. 19, 2019).
Wallace includes several exhibits, including a docket sheet from the Powell County
District Court for the felony offense of escape as well as a copy of a petition for a writ of
habeas corpus for federal court. Citing to many legal authorities, he refers to
State v. Lenihan, 184 Mont. 338, 602 P.2d 997 (1979), as the authority for this Court to
review his illegal sentence for escape and the lack of credit for street time. He argues that
he could not be convicted ofescape because he was on probation at the time he absconded.
Wallace does not suggest how much credit he is due for "the probation time already
served." He contends that this Court is incorrect that a revocation ofa suspended sentence
does not violate double jeopardy. See State v. Dewitt, 2006 MT 302, ¶ 10, 334 Mont. 474,
149 P.3d 549.
We secured copies ofrelevant documents to inform our review of Wallace's claims.
Wallace was charged in 2014 with escape in Powell County District Court, and venue was
changed by agreement ofthe parties to the Butte-Silver Bow County District Court under
Cause No. DC-15-58. Wallace is correct that he cannot be charged with escape while on
probation, pursuant to § 45-7-306(1)(b), MCA (2013). In the filed Information, however,
the State of Montana specifically stated that Wallace was "an inmate subject to official
detention with the Montana Department of Corrections, temporarily assigned to the Butte
Pre-Release Center, [and that he] purposely or knowingly failed to return to official
detention following temporary leave granted for a specific purpose . . . ."
See § 45-7-306(2), MCA,(2013). Because Wallace was placed in official detention at the
time, the charge was proper. Wallace has not demonstrated an illegal sentence for escape.
Nor is Wallace due any credit for time served on probation. Several years later, it
is not clear whether he seeks credit for street time in 2014 or 2020. Wallace does not
provide any argument or supporting documentation for why he should receive any credit.
Section 46-22-101(1), MCA. Wallace admitted that he ahsconded from probation and that
a report of violation was filed. For either year, Wallace is not due credit for street time
when he violated the terms and conditions of the sentence he was serving.
Section 46-18-203(7)(a),(7)(b), and (12), MCA (2019). Wallace's statement concerning
double jeopardy lacks merit. See § 46-18-203(7)(a)(iii), MCA.
2
We conclude that Wallace has not demonstrated an illegal sentence or illegal
incarceration. Section 46-22-101(1), MCA. He received a valid sentence for escape from
the Butte-Silver Bow County District Court. He has not given any reason he should be
granted credit for time while on probation when he violated its terms and conditions.
Wallace is procedurally barred via habeas corpus from challenging his sentence upon
revocation from the Yellowstone County District Court. Section 46-22-101(2), MCA.
IT IS THEREFORE ORDERED that Wallace's Petition for a Writ of
Habeas Corpus is DENIED and DISMISSED.
The Clerk ofthe Supreme Court is directed to provide a copy ofthis Order to counsel
of record and to Gregory L. Wallace personally.
, rL•
DATED this 4:2. day of September, 2020.
Chief Justice