                                                                                          December 2 2014


                                          DA 14-0249
                                                                                          Case Number: DA 14-0249

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2014 MT 320N



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

THOMAS NICHOLAS BOYLES,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Eleventh Judicial District,
                       In and For the County of Flathead, Cause No. DC 05-500
                       Honorable Ted O. Lympus, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Thomas Nicholas Boyles, self-represented, Deer Lodge, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General; Brenda K. Elias, Assistant
                       Attorney General, Helena, Montana

                       Edward J. Corrigan, Flathead County Attorney, Kalispell, Montana




                                                   Submitted on Briefs: November 13, 2014
                                                              Decided: December 2, 2014


Filed:

                       __________________________________________
                                         Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Thomas Boyles appeals the Eleventh Judicial District Court’s denial of his motion

for regular visiting privileges. Boyles is serving a prison term at Montana State Prison

(MSP) as the result of his 2007 conviction of three counts of felony sexual assault, all

involving minor children. On July 26, 2007, the District Court sentenced Boyles to

concurrent prison terms of forty years, with twenty years suspended on each count. The

court’s written judgment, filed September 4, 2007, set forth numerous “conditions of

parole and probation,” including standard sex offender conditions and a specific

condition that he not have contact with the victims. Boyles filed an application for

sentence review and, on February 28, 2008, the Sentence Review Division of this Court

affirmed his sentence.

¶3     On January 10, 2014, Boyles filed a motion with the sentencing court seeking to

compel MSP to allow him regular visitation privileges. Boyles alleged that MSP was

restricting the privileges of inmates convicted of sex offenses to visit with their family

members unless they had clarification from the sentencing court. He attached to his

motion proof of his successful completion of sex offender treatment, positive evaluations

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from his treatment providers, and a letter from the MSP Sexual Offender Treatment

Department advising that it “has no clinical objection” to Boyles having visitation at

MSP with minor children or while minor children are present. Boyles also attached a

July 7, 2013 letter from MSP Visiting Supervisor Lt. Harold Strey, advising him that

because of confusion arising from differing language in sex offender judgments entered

by courts around the state, “it will now be required for all sex offenders to petition their

sentencing judge and request that their case be reviewed to see if the judge feels it is

appropriate for sex offenders to visit when minors are present in a prison environment.”

Strey’s letter advised that until such documentation is received, visits for sex offenders

will be restricted to Wednesdays and Fridays. Boyles asked the District Court to enter an

order “mandating that he be allowed to have visits on all established visiting days.”

¶4      After receiving a response from the State, the District Court entered an order

denying Boyles’ request on the ground that “[t]he management of an inmate’s visitation

privileges is within the discretion and authority of the Department of Corrections.”

Boyles challenges this order on appeal, arguing that he is being treated differently from

other inmates who have not been convicted of sexual offenses and are allowed visiting

privileges on consecutive days, and from other sexual offenders, whom he claims have

received orders from their sentencing judges allowing regular visitation. Boyles points

out that, by restricting family visits to Wednesdays and Fridays, family members of

sexual offenders must stay an additional night in the community and pay for the extra

cost.   He argues that he is getting “the classic bureaucratic runaround” when the

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Department of Corrections “tells the inmates to file with their sentencing courts” and the

courts then “tell the defendant that they have no authority.”

¶5     The State agrees with Boyles that the condition included in his judgment that

restricts Boyles’ unsupervised contact or socialization with minors does not apply while

he is incarcerated but “relates solely to his term of probation[.]” It argues nonetheless

that the sentencing court lacks authority to direct MSP’s management decisions and

especially cannot do so in conjunction with Boyles’ request to clarify or correct his

sentencing order, which the court has no authority at this point to modify or change.

¶6     “[G]iven a valid conviction, the criminal defendant has been constitutionally

deprived of his liberty to the extent that the State may confine him and subject him to the

rules of its prison system so long as the conditions of confinement do not otherwise

violate the Constitution.” Quigg v. Slaughter, 2007 MT 76, ¶ 31, 336 Mont. 474, 154

P.3d 1217 (quoting Wright v. Mahoney, 2003 MT 141, ¶ 8, 316 Mont. 173, 71 P.3d

1195). Our cases long have recognized that “prison officials are accorded ‘wide ranging

deference’ in adopting and executing policies to preserve internal order and discipline

among the inmates, including ‘prophylactic and preventative measures intended to reduce

the incidence’ of breaches of prison order.” Jellison v. Mahoney, 1999 MT 217, ¶ 12,

295 Mont. 540, 986 P.2d 1089.

¶7     We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our Internal Operating Rules, which provides for noncitable memorandum opinions. The

District Court correctly ruled that the sentencing court may not direct the administration

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of the prison’s visiting rules and restrictions for a particular inmate and we affirm its

order for that reason.

¶8     Nonetheless, the State having conceded that the conditions imposed in Boyles’

judgment plainly do not apply to the terms of his incarceration, we direct counsel for the

State to provide the Department of Corrections with a copy of this opinion. Boyles’

frustration is understandable and he raises an issue that seemingly may be resolved

without further court intervention.



                                                /S/ BETH BAKER


We concur:

/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ JIM RICE




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