                                                                                         December 16 2014


                                          DA 14-0287
                                                                                         Case Number: DA 14-0287

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2014 MT 331N



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

ERIC LAT BAILEY,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Second Judicial District,
                       In and For the County of Butte/Silver Bow, Cause No. DC-09-117
                       Honorable Kurt Krueger, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Eric Lat Bailey, self-represented, Deer Lodge, Montana

                For Appellee:

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

                       Eileen Joyce, Butte-Silver Bow County Attorney, Butte, Montana



                                                    Submitted on Briefs: December 3, 2014
                                                               Decided: December 16, 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     Eric Lat Bailey appeals the Second Judicial District Court’s denial of his Motion

to Modify Court Orders with respect to his visiting privileges with his minor children at

Montana State Prison (MSP). Bailey was sentenced in July 2010 on his plea of guilty to

the offense of Sexual Intercourse Without Consent. All but thirty days of his eight-year

sentence were suspended. The sentencing court imposed numerous conditions on the

suspended term, including standard sex offender conditions prohibiting unsupervised

contact with children. Bailey’s suspended sentence was revoked in 2012 and he was

sentenced to a term of eight years in prison, with credit for time served. The court’s

March 30, 2012 Judgment included the following language:

       IT IS ALSO THE RECOMMENDATION OF THIS COURT that should
       the Department grant the Defendant parole or early release that they
       consider the previous conditions of supervision set forth by this Court in its
       original Judgment of July 6, 2010.

¶3     Bailey filed a motion with the sentencing court on February 10, 2014, requesting

the court to modify its judgment “so he can visit his biological children in the well

supervised visiting room, by trained staff here at the Montana State Prison.” The Court

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denied the motion on April 4, 2014, stating its position “that the original judgment stands

as written, and it is up to the Department of Corrections to implement this Court’s orders

as it interprets the terms and conditions stated therein.” Bailey appeals.

¶4     The State agrees with Bailey that the condition included in his judgment that

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

he is incarcerated but “relates solely to his term of probation[.]” The court’s denial of

Bailey’s motion, the State suggests, “underscores the argument that the probationary

condition should not affect the conditions of his confinement at MSP.”           It argues

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

decisions and especially cannot do so in conjunction with Bailey’s request to modify his

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

¶5     “[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.
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¶6    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 denied Bailey’s motion, because the sentencing court may not

direct the administration of the prison’s visiting rules and restrictions for a particular

inmate. Nonetheless, the State having conceded that the conditions imposed in Bailey’s

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.

¶7    Affirmed.



                                                /S/ BETH BAKER

We concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA




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