                                                                                             05/06/2020


            IN THE SUPREME COURT OF THE STATE OF MONTANA                                 Case Number: OP 20-0228



                                        OP 20-0228


 KYLE BAILEY,
                                                                         FILED
                                                                          MAY 0 6 2020
               Petitioner,                                              Bowen Greenwood
                                                                      Clerk of Supreme Court
                                                                         State of Montana

       v.                                                            ORDER

 CAPTAIN JASON KOWALSKI,

               Respondent.


       Kyle Andrew Bailey has filed a petition for a writ of habeas corpus, indicating that
his sentence is illegal because it violates his right to be free from double jeopardy.
       Available electronic records indicate that the State of Montana charged Bailey with
three felonies and three misdemeanors in 2016. On July 12, 2016, the Park County
District Court convicted Bailey of felony criminal possession of dangerous drugs,
misdemeanor criminal possession of dangerous drugs, misdemeanor criminal possession
of drug paraphernalia, and misdemeanor driving while license suspended or revoked. The
court imposed a three-year deferred sentence (hereinafter 2016 sentence). The court
specifically stated: "The deferred sentence is conditioned upon defendant's compliance
with the follow[ing] conditions[1"
      Bailey includes a copy ofthe District Court's September 24,2019 Findings ofFacts
and Conclusions of Law, where the court revoked Bailey's 2016 sentence. We secured a
copy of the court's dispositional sentencing judgment.                 Bailey received a
five-year commitment to the Department ofCorrections with three years suspended for the
felony criminal possession of dangerous drugs (hereinafter 2019 sentence upon
revocation).
      In his petition, Bailey requests his immediate release from prison and that his
three-year deferred sentence be re-imposed. He states, though not articulated very clearly,
that his Probation Officer violated him for reasons including possession ofdangerous drugs
with intent to distribute and that this 2018 charge was dismissed "for reason of
double jeopardy." He reasons that based upon the dismissal ofhis newer charge, he should
be returned to serve his 2016 sentence because the Double Jeopardy Clause of the
Fifth Amendment had been violated with the overlap of similar charges.
       Bailey has not demonstrated that his right to be free from double jeopardy has been
violated. "Simply put, double jeopardy exemplifies the legal and moral concept that no
person should suffer twice for a single act." State v. Guillaume, 1999 MT 29, ¶ 17,
293 Mont. 224, 975 P.2d 312. Bailey received a new charge that was later dismissed; he
was not reconvicted of the same offense. As he acknowledges, he had multiple violations
of probation. According to the Court's Findings, Bailey's Probation Officer stated in his
Report of Violation that Bailey's "adjustment to supervision has been extremely poor[,]"
and "that [] Bailey has quit reporting and received new charges while on active
supervision."   The court also concluded that Bailey "knowingly, intelligently and
voluntarily entered his admissions to the allegations in the Petition to Revoke, after advice
of counsel,[and] was competent to do so[d" The court found that Bailey had violated the
conditions of his deferred 2016 sentence.
       Bailey's 2019 sentence upon revocation does not violate his right to be free from
double jeopardy. Bailey has not received more than one sentence for the same offense.
Pursuant to Montana's sentencing statutes, after ajudge finds that the offender has violated
his probationary conditions of a deferred sentence, a judge "may revoke the suspension of
a sentence and require the offender to serve either the sentence irnposed or any sentence
that could have been imposed . . . ." Section 46-18-203(7)(a)(iii), MCA (2015). The
District Court revoked Bailey's 2016 sentence and imposed a sentence that could have beCn
originally imposed for the felony offense. Section 45-9-102(6), MCA.
       Bailey is not entitled to his request for time served while on probation for his
2016 sentence. It is within the court's discretion to credit Bailey any time on probation,
also known as street time. Section 46-18-203(7)(b), MCA(2015); Gundrum v. Mahoney,
2001 MT 246,¶ 19, 307 Mont. 96, 36 P.3d 890. Under Montana statutes, a District Court
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does not have to credit an offender with any street time. Pursuant to § 46-18-203(7)(b),
MCA(2015),"[t]he judge shall state the reasons ofthe judge's determination [for allowing
or rejecting street time credit] in the order." Section 46-18-203(7)(b), MCA (2015). Here,
the court stated that: "The [c]ourt does not find that the defendant is eligible for any credit
for time spent supervised in the community (street time) due to the supervising officer's
recommendation and the [c]ourt's conclusion that defendant's poor record of supervision
does not support such a credit." The court rejected any time served while on probation,
and Bailey was properly denied this credit. McDermott v. Dep't ofCorr., 2001 MT 134,
¶ 45, 305 Mont. 462,29 P.3d 992.
       Bailey is procedurally barred via habeas corpus to attack his 2016 sentence upon
revocation. Section 46-22-101(2), MCA. Bailey's sentence is valid; he did not receive a
second punishment, and he has received all the credit he was due under the law. Bailey
has not demonstrated an illegal sentence, and he is not entitled to his release.
Section 46-22-101(1), MCA. Accordingly,
      IT IS ORDERED that Bailey's Petition for a Writ of Habeas Corpus is DENIED.
       The Clerk is directed to provide a copy of this Order to counsel of record and to
Kyle Andrew Bailey personally.
                    V.,
      DATED this         day of May,2020.



                                                                 Chief Justice




                                                                   Justices
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