                                                                                              06/02/2020


            IN THE SUPREME COURT OF THE STATE OF MONTANA                                  Case Number: OP 20-0144


                                         OP 20-0144
                                                                            FILE!
                                                                                ,
 ROGER LUKE BELL,                                                           JUN 0 2 2020
                                                                          Bowen C3reenw000
              Petitioner,                                               Clerk of Suprerne Court
                                                                           State of Montana


       v.
                                                                       ORDER
 1 YNN GUYER, Warden
 Montana State Prison,

              Respondent.


       Representing himself, Roger Luke Bell (Roger) has filed a petition for a writ of
habeas corpus, claiming that the Board of Pardons and Parole(Board)has violated his due
process rights by denying him a parole. In compliance with a March 24, 2020 Order, the
Special Assistant Attorneys General for the Department of Corrections (the Department)
respond that Roger's petition should be denied.
       On May 24, 1985, the Yellowstone County District Court sentenced Roger for two
counts of deliberate homicide and two counts for the use of a weapon, imposing a total
sentence of220 years. The District Court designated Roger a dangerous offender, pursuant
to § 46-18-404, MCA. State v. Bell, 225 Mont. 83, 95, 731 P.2d 336, 343 (1987). Roger
became parole eligible on December 22, 2001.
       Roger states that he appeared before the Board on February 20,2019. Roger argues
that the Board's three-member panel included a former police officer, Darrell Bell,' who
was part of the criminal investigation leading to his arrest in 1984. Roger provides a copy
of the subpoena and adds that this officer testified against him during his trial. Roger
contends that this Board member should not have been allowed to sit on the hearing panel
and that this member has a conflict ofinterest, resulting in an unfair and prejudicial hearing.
Roger notes that he has worked very hard in the last nineteen years to walk "straight and


 Both parties point out that there is no relationship of consanguinity or affinity between Roger
Luke Bell and Board member Darrell Bell.
narrow ..." completing several treatment and educational programs. He requests that this
Court "order the Board ... to reconsider [his] case with an unbiased mind."
       The Department reframes Roger's issues as follows:(1)whether Roger's procedural
due process rights were violated by Board member Darrell Bell's participation in Roger's
February 20, 2019 administrative review hearing; and (2) whether Darrell Bell had a
conflict of interest that warranted his recusal from this hearing. The Department provides
that because Roger committed his offenses before 1989, he has a liberty interest in parole.
McDermott v. McDonald, 2001 MT 89,               ¶   8, 305 Mont. 166, 24 P.3d 200
(citing Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7,
99 S. Ct. 2100,2103-04(1979)). Pursuant to precedent,the Department acknowledges that
Roger's liberty interest in parole is protected by the due process clause of the federal
constitution. McDermott, ¶ 8 (citing Board ofPardons v. Allen, 482 U.S. 369, 377,
107 S. Ct. 2415, 2420 (1987)). The Department points out, however, that pursuant to a
Montana statute, parole eligibility hinges on the Board's opinion that "there is a reasonable
probability that the prisoner can be released without detriment to the prisoner or to the
community[.]" Section 46-23-208(1)(a), MCA. See also McDermott,¶ 8.
      The Department next explains that Roger appeared before the Board on
February 20,2019, for an oral administrative review based on the record, under
Admin. R. M.20.25.402(1)(a)(2012), and that this administrative review is not a formal
hearing. The Department states that after receiving a report ofthe offender's progress and
conduct from its staff, the Board holds the oral administrative review where an inmate, like
Roger,has the right to be present and to provide a statement on his behalf. The Department
includes a copy of the administrative review's transcript. The Department further points
out that the Board may not grant parole to a violent offender, such as Roger, upon an
administrative review. Admin. R. M. 20.25.402(5)(2012). The Department posits that
Roger's argument about the denial of parole therefore is without merit; however, the
Department adds that while the administrative review does not rise to the level ofa formal
hearing, Roger's due process rights remain intact. As the Department highlights and this

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Court has long adhered to,"the United States Supreme Court has held that due process is
satisfied when the prisoner seeking parole is, at a minimum, provided with an opportunity
to be heard and a written statement explaining why he was denied parole."
McDermott, ¶ 11 (citing Greenholtz, 442 U.S. at 16, 99 S. Ct. at 2108; Sage v. Gamble,
279 Mont.459,465,929 P.2d 822,825 (1996)). The Department concludes that the Board
did not violate his due process rights because Roger was given the opportunity to be heard
and a written copy of the Board's case disposition. Roger also acknowledged this in his
petition.
       Next, the Department provides that Board member Darrell Bell's presence at this
administrative review was not a conflict of interest. The Department points out that
Dan•ell Bell as a former police officer did not participate personally and substantially in
the investigation, prosecution, or sentencing ofRoger, and supplies an affidavit in support
from Board member Darrell Bell. The Department explains, and the affidavit supports,
that Darrell Bell was a Sergeant with the Billings Police Department at the time of the
murders in 1984, and that his main responsibility was to supervise patrol officers under his
command. Then-Sergeant Bell appeared on scene to assist two patrol officers who had
arrived earlier in securing the crime scene for detectives. Once secured, Darrell Bell
instructed his officers to remain on scene and following his return to the police station,
Darrell Bell wrote a report about his limited involvement in the homicide investigation.
The Department states that Darrell Bell had no further involvement in the case.
Moreover,the Department provides that when then-Sergeant Darrell Bell was initially
dispatched to the crime scene, Roger had not yet been identified as a potential suspect in
the murders. The Department adds that Darrell Bell only remembered Roger's identity
after the filing ofthis instant petition. The Department addresses the subpoena attached to
Roger's habeas corpus petition and states that Darrell Bell did not testify or otherwise
participate in the criminal trial. The Department concludes that Board member Darrell Bell
did   not need     to   recuse   himself because      no   conflict   of interest    exists.
Admin. R. M.20.25.101(2)(2016). The Department notes that the Board has since

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ordered another administrative review for Roger in August 2020 because of an unrelated
anomaly. Admin. R. M.20.25.402(1)(b)(2012).
       We find the Departrnent's arguments persuasive and conclude that Roger's due
process rights have not been violated. His administrative review was just that—a review
where parole could not be granted. We also conclude that no conflict ofinterest was known
or even identified before or during this adrninistrative review to warrant Board member
Darrell Bell's recusal.
      "Parole . . . is a discretionary grant of freedorn from incarceration."
McDermott,¶ 24. We commend Roger for completing all of his treatment and educational
programs over the years. Parole considerations are within the Board's broad discretion and
not with this Court. McDermott,in 24-25. The release also must be in the best interests
ofthe society. Section 46-23-208(1)(b), MCA. In its case disposition, the Board wrote as
its reason for denial that "Parole release at this tirne would diminish the severity of the
offenses[1" Section 46-23-208(4)(q), MCA. No indicated needs were marked. Roger has
another administrative review in August of this year. He is not entitled to habeas corpus
relief. Section 46-22-101(1), MCA. Accordingly,
       IT IS ORDERED that Roger's Petition for a Writ ofHabeas Corpus is DENIED.
       The Clerk is directed to provide a copy of this Order to counsel of record and to
Roger Luke Bell personally.
                          tiv4
       DATED this Z7-- day of June, 2020.


                                                           1,
                                                           , ,AV?e)f
                                                              Chief Justice




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