                                                                                          03/18/2020


            IN THE SUPREME COURT OF-THE STATE OF MONTANA
                                                                                      Case Number: OP 19-0358


                                       OP 19-0358

                                                                        F[ED
 CHESTER R. BAUER,
                                                                         MAR 1 7 2020
               Petitioner,                                             Bowen Greenviood
                                                                     Clerk of Supreme Court
       v.                                                               State of Montana

                                                                    ORDER
 LYNN GUYER, Warden,
 Montana State Prison,

               Respondent.


      In a July 2,2019 Order,this Court denied in part Chester R. Bauer's claims attacking
his conviction in his Petition for a Writ of Habeas Corpus, providing the reasons and
discussion therein. However, we kept the Petition pending to allow the State to file a
response addressing whether Bauer has a facially invalid sentence under law, including
State v. Gunderson, 2010 MT 166, 357 Mont. 142, 237 P.3d 74(Gunderson I1). We have
received the Attorney General's response.
       We briefly sunimarize Bauer's history. In January 2001,the Anaconda-Deer Lodge
County District Court sentenced Bauer to life in prison following his conviction by a jury
of incest. The court also imposed "an additional twenty (20) years in accord with the
Persistent Felony Offender notice[] filed in this case, and pursuant to § 46-18-501 and
502." These two sentences were to run consecutively. Bauer appealed his conviction but
did not challenge his sentences,and we affirmed. State v. Bauer,2002 MT 7,308 Mont. 99,
39 P.3d 689.
      In its response, the State concedes that Bauer's case should be remanded to the
District Court for resentencing under either § 45-5-507, MCA(1999)or § 46-18-502, MCA
(1999),1 because, as imposed, his persistent felony offender (PFO) sentence is facially
invalid. The State points out that, in Gunderson H,this Court clarified the law concerning
the irnposition of sentences for a PFO and determined that the PFO sentence replaces the

1 We point out that §.46-18-502(4), MCA,would not apply in light of Gunderson IL
sentence for the underlying felony. Gunderson II,111 49-54. The State points to an earlier
Order where this Court confronted this issue squarely in a habeas corpus proceeding.
Larsen v. State, No. OP 11-0246, 362 Mont. 543, 272 P.3d 124 (Aug. 9, 2011).
Accordingly, we have determined that as a facially invalid sentence, Bauer's sentence
"presents the rare and exceptional situation where the procedural bar ofres judicata should
not apply because justice demands that we not permit a facially illegal sentence to stand."
State v. Southwick, 2007 MT 257,¶ 19, 339 Mont. 281, 169 P.3d 698.
       In State v. Heafner,2010 MT 87,¶ 11,356 Mont. 128,231 P.3d 1087, we concluded
that "when a portion of a sentence is illegal, the better practice is to remand to the
District Court to correct" the sentence unless it cannot be corrected. We conclude
resentencing is the proper remedy. Therefore,
       IT IS ORDERED that the Petition for a Writ of Habeas Corpus is GRANTED IN
PART. This matter is remanded to the Third Judicial District Court, Anaconda-Deer Lodge
County, for resentencing in accordance with Gunderson II.
       The Clerk of the Supreme Court is directed to provide a copy of this Order to the
Honorable Ray J. Dayton, Third Judicial District Court; to Susie Krueger, Clerk of Court,
Anaconda-Deer Lodge County, along with a copy ofthis Court's July 2, 2019 Order, to be
filed under Cause No. DC-00-25; to counsel ofrecord; and to Chester R.Bauer personally.
       DATED this j 1- day of March, 2020.



                                                               Chief Justice
    Justices




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