R. Gillingham v. Salmonsen

04/13/2021
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 21-0151
OP 21-0151
RICHARD WAYNE GILLINGHAM,
Petitioner,
v.
ORDER
JAMES SALMONSEN, APR 1 3 2021
Warden, Montana State Prison,
Bowen GreenwooO
Clerk of Supreme Cour
State of Montana
Respondent.
Richard Wayne Gillingham has filed a Petition for Writ of Habeas Corpus,
indicating that his sentence violates his right to be free from double jeopardy and that his
incarceration is illegal. He contends that Montana lacks jurisdiction over him. Gillingham
states that he was falsely charged and accused of violating a Montana "Probation Order
that never has been nor ever can be presented into evidence because no such document
exists." He further states that he was "kidnapper from British Columbia, Canada, to
Montana, and that while he served three months in British Columbia, he served forty-five
years for the same violation in Montana.
This Court is familiar with Gillingham's history. In 2006, Gillingham appealed
"from a judgment in the Fourth Judicial District [Court], Missoula County, revoking his
suspended sentence and sentencing him to serve forty-five years at Montana State Prison."
State v. Gillingham, 2008 MT 38, ¶ 1, 341 Mont. 325, 176 P.3d 1075 (Gillingham /V On
appeal, this Court addressed two issues, whether: (1)"the District Court err[ed] in revoking
Gillingham's suspended sentences because he refused to sign a document in which he
waived extradition from Canada, when the judgment suspending his sentence did not
contain such a requirementM" and (2)"the State present[ed] significant evidence at the
hearing to revoke Gillingham's suspended sentences[.]"
'The District Court sentenced Gillingham in open court in August 2005,and the written judgment
was filed in January 2006.
By way of background, in October of 1992, the State charged Gillingham with nine
counts of sexual assault on minors and one count of assault on a minor, to have occurred
in 1991 and 1992. Gillingham I, ¶ 5. On April 7, 1993, Gillingham pleaded guilty to four
counts of sexual assault and one count of assault. Gillingham I, ¶ 6. The District Court
sentenced Gillingham to five, ten-year suspended sentences to run consecutively.
Gillingham I, ¶ 6. "Gillingham, a Canadian citizen, was deported to Canada, where he
faced separate charges." Gillingham I, ¶ 6. Gillingham, however, was deported before
signing his conditions of probation, one of which contained a waiver of extradition.
Thereafter, Gillingham challenged his extradition for more than seven years, and in late
2004, Gillingham "was delivered into the custody of the Missoula County Sheriff"
Gillingham I, ¶ 12. The court revoked Gillingham's revocation and Gillingham appealed
his revocation.
In 2006, during the pendency of Gillingham's appeal, Gillingham sought habeas
corpus relief with this Court. Gillingham v. Mahoney, No. OP 06-0268, Order
(Mont. May 10, 2006) (Gillingham II). Gillingham asserted then "that as a Canadian
citizen who was deported and banished from the United States in August of 1993, he was
wrongfully extradited to face charges here, and is now wrongfully held on a revocation of
a 1993 suspended sentence." Gillingham II, at 1. After receiving a response from
then-Warden Mahoney, this Court denied his petition because the response provided legal
authority and supporting docurnentation to refute Gillingham's unsupported claims.
Gillingham II, at 2.
In 2008, this Court affirmed the District Court's revocation of Gillingham's
suspended sentences. Gillingham I, ¶ 30. The had State had conceded the requirement that
Gillingham waive extradition frorn Canada was not a condition included in the written
judgment. Gillingham I,¶ 20.2 However,the Court concluded that, while the District Court
2 This Court noted the legislative change to a probationary supervision statute in 2001.
See Gillingham I, ¶ 20 n.1 ("The authority to require that a probationer waive extradition for his
return to Montana was added to § 46-23-1011(2), MCA,by the Fifty-Seventh Legislature in 2001.
2001 Mont. Laws 2436-37.")
2
had no authority to revoke Gillingham's suspended sentences because of his failure to sign
the conditions of probation either in Montana or British Columbia, this error was not fatal
to the revocation. Gillingham I, Irg 18-20. Because the court found that Gillingham had
violated the court's written condition in its original judgment—"that the Defendant shall
not have unsupervised contact with any children under the age of 16 years of age"—the
revocation of his sentences was proper. "A single violation of the conditions of a
suspended sentence is sufficient to support a district court's revocation of that sentence."
Gillingham I, ¶ 28 (citing State v. Rudolph, 2005 MT 41, ¶ 13, 326 Mont. 132,
107 P.3d 496). Accordingly, the District Court's revocation of Gillingham's consecutive,
suspended sentences, and iinposition of a forty-five-year prison term with a parole
eligibility restriction was upheld.3 Gillingham I, ¶ 16.
In 2011, Gillingham filed his second petition for habeas corpus relief, asserting that
Montana lacks jurisdiction over him. Gillingham v. Frink, No. OP 11-0485, Order
(Mont. Sept. 27, 2011) (Gillingham III). We noted our decision in his appeal.
Gillingham I, ¶¶ 20, 28. We stated that Gillingham could not "attack the validity of a
conviction when the petitioner has been adjudged guilty of an offense in a court of record
and exhausted his remedy of appeal. Section 46-22-101(2), MCA." Gillingham III, at 2.
We further stated: "Gillingham was lawfully extradited to Montana prior to the revocation
of his suspended sentence, rendering moot, any issue related to his deportation in 1993.
Cook v. McClammy, 2009 MT 115, ¶ 8, 350 Mont. 159, 206 P.3d 906[.]" Gillingham III,
at 2-3.
Gillingham sought relief again the next year. "By way of habeas corpus,
[Gillingham] seeks deportation back to Canada, or alternatively, that he be put to death."
Gillingham v. Kirkegard, No. OP 12-0584, Order (Mont. Oct. 16, 2012)(Gillingham IV).
He argued then that he was never convicted or sentenced, but that he voluntarily agreed to
3 In 1993, the District Court imposed five, ten-year consecutive terms for the offenses. For the
2005 sentence upon revocation, the court corrected the terms because the maximum punishment
for assault on a minor was a five-year term. Section 45-5-201(3), MCA (1991).
3
leave the United States. We concluded that Gillingham was not incarcerated illegally based
on his insufficient, unsubstantiated claims. As before, we stated that "Gillingham was
adjudged guilty in a district court and exhausted his remedy of appeal. Gillingham's
exercise of his full due process rights supports his present incarceration.
Section 46-22-101(2), MCA." Gillingham IV, at 2.
In 2016, Gillingham asserted in a petition for a writ of habeas corpus his revocation
was improper because the court lacked jurisdiction and his sentence constituted double
jeopardy. Gillingham v. 0'Fallon, No. OP 16-0461, Order (Aug. 17, 2016)
(Gillingham V). We outlined his history and noted Gillingham had been under the court's
jurisdiction since 1993.
As part of the original 1993 judgment, the court suspended his sentences on
various terms and conditions, including the first condition that "ifihe [c]ourt
retains jurisdiction and the right to impose additional conditionsH"
Gillingham is also mistaken that he was "freed" in 1993. Although he
received suspended sentences, "Nile District Court's judgment placed
Gillingham under the supervision of the Department of Corrections."
Gillingham [I], ¶ 7. Gillingham, therefore, has been under Montana's
authority since 1993.•
Gillingham V, at 2-3. We stated that with the revocation of his suspended sentence,
"Gillingham has not been placed in double jeopardy. See § 46-18-203(7)(d), MCA
(1991)." Gillingham V, at 3. This Court denied his petition for habeas corpus relief.
Gillingham petitioned this Court for an out-ot-time appeal in 2018. We denied his
petition seeking to appeal his sentence upon revocation, pursuant to M.R. App. P. 4(6).
Gillingham's novel argument that he lacked knowledge of an appeal taken,
considered, and decided well over a decade ago is not a reason for a second
appeal. Since 2006, Gillingham has sought reliefvia habeas corpus for issues
similar to those he wishes to raise in his requested out-of-time appeal. We
have considered his claims and found them without merit.
State v. Gillingham, No. DA 18-0207, Order, at 1-2 (Mont. May 1, 2018)(Gillingham
VI).
4
Accordingly, the allegations in the instant petition Gillingham have previously
been addressed numerous times by this Court. Gillingham VI. Montana has jurisdiction
over Gillingham. Gillingham I, ¶ 28; Gillingham 11; Gillingham III; and Gillingham V.
He was not falsely charged, accused, or kidnapped. Gillingham I, ¶¶ 7, 12, 16, 20, 23;
Gillingham 11; Gillingham III, and Gillingham IV. The issue about his failure to sign
conditions of probation is moot because the revocation of his suspended sentences was
also based on another violation of the court's written condition in the judgment.
Gillingham I, In 20, 28. No due process violation exists. Gillingham I, ¶ 29;
Gillingham IV. His sentence upon revocation does not violate double jeopardy.
Gillingham V. Gillingham is not entitled to habeas corpus relief. Section 46-22-101(2),
MCA. Therefore,
IT IS ORDERED that Gillingham's Petition for Writ of Habeas Corpus is DENIED
and DISMISSED.
IT IS FURTHER ORDERED that henceforth, prior to filing any original petition or
other pleading concerning his 1993 conviction and 2005 sentence upon revocation with
this Court, Gillingham is directed to file a motion for leave to file the petition. The motion
for leave must be sworn under oath, not exceed three pages in length, and make a
preliminary showing that the petition has merit and meets the criteria to state a prima facie
case under M. R. App. P. 14(5). Only when this Court has reviewed the motion and issued
an order granting leave to file may the Clerk of this Court file the petition. Any original
petition or other pleading Gillingharn seeks to file shall be rejected and the Clerk shall
inform Gillingham accordingly.
The Clerk is directed to provide a copy of this Order to counsel of record and to
Richard Wayne Gillingham along with a copy of M. R. App. P. 14(5) for his reference.
DATED this L N day of April, 2021.
5
cia45
/9-1 /4 All,.
Justices
6