Montgomery v. Salmonsen

• Court: Montana Supreme Court
• Decided: November 16, 2021
• Docket: OP 21-0544
• Status: Unpublished

Opinion

OR1P AL 11/16/2021

IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 21-0544

OP 21-0544 FILED MATTHEW L. MONTGOMERY, NOV 1 6 2021 Bowen Greenwood Petitioner, Clerk of Supremp Court State of Monta na

v. ORDER JIM SALMONSEN, Warden, Montana State Prison,

Respondent.

Matthew Montgomery has filed a "Habeas Relief Petition" with the Clerk of this Court. Montgomery contends that, pursuant to State v. Hansen, his sentence is illegal because he entered a no contest plea to sexual assault in violation of § 46-12-204(4), MCA. 2017 MT 280, 389 Mont. 299, 495 P.3d 625. He requests that this Court vacate his illegal sentence and rernand for trial. Montgomery refers to Cause Nos. DC 03-98 and DC 06-83 from the Ravalli County District Court in his pleading. Montgomery is not entitled to habeas corpus relief. First, in 2016 this Court issued an Opinion and Order that required Montgomery to seek leave of court "prior to any pleading or original petition with this Court regarding his prior convictions or sentences as imposed in the Ravalli County District Court in 2004 and 2007[.]" Montgomery v. State, 2016 MT 169, ¶ 15, 384 Mont. 120, 375 P.3d 403. His Petition in this case relates to those convictions and sentences, but Montgomery did not seek or obtain leave of this Court to file it. The clerk nonetheless inadvertently filed his pleading. Be that as it rnay, this Court overruled Hansen earlier this year. Gardipee v. Salmonsen, 2021 MT 115, ¶ 10, 404 Mont. 144, 486 P.3d 689. We held that "[a] claim that a plea is invalid because § 46-12-204(4), MCA, prohibits a court from accepting a no contest plea in a case involving a sexual offense, is a claim challenging the conviction." Gardipee, ¶ 9. Such a claim is barred if, like Montgomery, the defendant did not object. Gardipee, ¶ 9. Gardipee forecloses Montgomery's claim. IT IS THEREFORE ORDERED that Montgomery's Habeas Relief Petition is DENIED and DISMISSED with prejudice. The Clerk is directed to provide a copy of this Order to counsel of record and to Matthew Montgomery personally. DATED this I-1, day of November, 2021.

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