E. Linwood, Jr. v. J. Salmonsen

07/27/2021

IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 21-0287

OP 21-0287 FILED EUGENE ALLEN LINWOOD,JR., JUL 27 2021 Bowen Greenwood Clerk of Supreme Court Petitioner, State of Montana.

v. ORDER JIM SALMONSEN, Warden Montana State Prison, and ED FOLEY,

Respondents.

Eugene Allen Linwood, Jr., argues that his sentence is illegal in his Petition for Writ ofHabeas Corpus because it was imposed after the repeal ofthe persistent felony offender (PFO)statute, § 46-18-501, MCA. In compliance with this Court's June 11, 2021 Order, the Attorney General for the State of Montana responds that Linwood's Petition should be denied. Linwood is serving a twenty-year sentence with fifteen years suspended after being convicted in four criminal cases in the Thirteenth Judicial District Court, Yellowstone County. Linwo6d entered pleas ofguilty in exchange for dismissal ofthe PFO designation in two cases. He pleaded guilty to felony theft in Cause No. DC 17-1266, the sentence at issue, and he received a ten-year term with five years suspended along with the PFO designation. His other convictions include two counts of felony criminal possession of dangerous drugs and felony thrgery (common scheme). Linwood challenges his PFO designation along with the requirement to register as a violent offender. Linwood states that on May 31, 2018, the District Court "sentenced him as a PFO for a bank robbery conviction." He further states that "Mhe sentence and written judgment of May 31, 2018[,] is clearly after the repealed statute in [his mentioned] cases ... using the repealed Mont. Code Ann. § 46-18-501, MCA." Citing to State v. Scott, Linwood adds that he sought redress in the District Court explaining that the PFO statute

was repealed in 2017, yet it was applied to his sentence for felony theft. 2020 IVIT 178, 400 Mont. 394,467 P.3d 595. The State points out that the 2017 version of Montana's statutes does not apply to Linwood because the 2015 version does. See State v. Thomas,2019 MT 155, itri 4, 11, 396 Mont. 284,445 P.3d 777(the District Court sentenced Thomas as a PFO under § 6-18-501, MCA (2015), because he committed the offense of theft on July 23, 2016). See also § 46-18-202(18), MCA (2015). The State explains that defendant Thomas committed his offense prior to July 1, 2017, and that similarly, Petitioner Linwood committed his felony offense of theft prior to July 1, 2017, or the effective date of the amended § 46-18-501, MCA, The State provides that Linwood has a pending motion challenging his requirement to register as a violerit offender in the District Court. The State concludes that Linwood's Petition should be denied for two reasons: (1) the 2015 PFO statutes apply to him, and (2)the District Court is the appropriate place to consider his objection about registration, not through a petition for habeas corpus relief. See § 46-23-506, MCA, and Graves v. Kirkegard, No. OP 13-0778, 2014 Mont. LEXIS 208 Order (Jan. 28, 2014)(citing State v. Mount,2003 MT 275, 1] 89, 317 Mont. 481,78 P.3d 829("The Sexual or Violent Offender Registration Act is a non-punitive civil regulation.")). We find the State's arguments persuasive. "In 2017, the Legislature repealed § 46-18-501, MCA, and revised the other definition of PFO found in § 46-1-202(18), MCA." Scott, ¶ 7. As we explained, however, in Thomas, "Section 44 [Applicability] provides that the Act,in its entirety, will apply "to offenses committed after June 30,2017." Thomas, ¶ 9 (quoting 2017 Mont. Laws, ch. 321, § 44 (emphasis added)). Linwood committed the offense offelony theft on April 22,2017,in Yellowstone County. We point out that he does not have a conviction for bank robbery. The 2015 version of the PFO statutes applies to him because the offense occurred before the Act's effective date and the sentencing date is not relevant. Thomas, ¶ 14. Linwood has not demonstiated an illegal sentence or illegal incarceration. Miller v. Eleventh Judicial Dist Ct., 2007 MT 58, ¶ 14, 336 Mont. 207, 154 P.3d 1186.

IT IS ORDERED that Linwood'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 Eugene Allen Linwood, Jr., personally. DATED this day ofJuly, 2021.

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