                                        No. 05-617

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                       2006 MT 279
                                     ______________

JASON LEE LOTT,                                         )
                                                        )
              Petitioner,                               )
                                                        )            OPINION
       v.                                               )               and
                                                        )             ORDER
STATE OF MONTANA,                                       )
                                                        )
              Respondent.                               )
                                     ______________


¶1     On June 2, 1992, the Montana Eighteenth Judicial District Court, Gallatin County,

sentenced Jason Lee Lott to fifty years in Montana State Prison on four separate counts:

Count I, ten years for aggravated kidnapping, with a ten-year sentence enhancement for

use of a dangerous weapon, a hunting knife, to run consecutively with the aggravated

kidnapping sentence, for a total of twenty years; Count II, twenty years for sexual

intercourse without consent, with a ten-year sentence enhancement for use of a dangerous

weapon, a hunting knife, to run consecutively with the sexual intercourse without consent

sentence, for a total of thirty years; Count III, ten years for aggravated burglary, with a

ten-year sentencing enhancement for use of a dangerous weapon, a hunting knife, to run

consecutively for a total of twenty years; and Count IV, ten years for felony assault, with

a ten-year enhancement for use of a dangerous weapon, a hunting knife, to run

consecutively with the felony assault sentence, for a total of twenty years. The court

ordered Counts I and II to run concurrently and Counts III and IV to run concurrently.


                                         1
¶2     In the time since the court sentenced Lott, we ruled in State v. Guillaume, 1999

MT 29, ¶ 16, 293 Mont. 224, ¶ 16, 975 P.2d 312, ¶ 16, that application of the weapons

enhancement to a felony offense that itself requires proving the use of a weapon violates

Montana’s constitutional protection against double jeopardy. We reasoned that Article II,

Section 25 of the Montana Constitution offers protection against “multiple prosecutions

for offenses arising out of the same transaction, and multiple punishments imposed at a

single prosecution . . . .” Guillaume, ¶ 8. A few years later, in State v. Whitehorn, 2002

MT 54, ¶ 45, 309 Mont. 63, ¶ 45, 50 P.3d 121, ¶ 45, we held that Guillaume applies

retroactively and clarified that felony assault with a weapon and aggravated burglary

(since the offenses themselves require use of a weapon) are the only offenses that may

not be enhanced under § 46-18-221, MCA. Whitehorn, ¶ 45.

¶3     Pursuant to Guillaume and Whitehorn, Lott now argues that the District Court

unconstitutionally enhanced his sentence in violation of the prohibition against double

jeopardy. 1 In response, the State contends that Lott is prohibited from making such an

argument at this juncture. Characterizing Lott’s petition as a writ of habeas corpus, the

State asserts that under § 46-22-101(2), MCA, the writ of habeas corpus “is not available

to attack the validity of the conviction or sentence of a person who has been adjudged

guilty of an offense in a court of record and has exhausted the remedy of appeal.” The

State further notes that although Lott could have raised any constitutional arguments on

       1
        Although Lott asserts three separate grounds for relief [(1) his sentence violates
his right against double jeopardy; (2) he did not receive a jury trial pursuant to the Sixth
Amendment; and (3) he did not knowingly plead guilty to the sentence enhancement
provisions in violation of the Fourteenth Amendment], for purposes of this Opinion, we
need only address the double jeopardy argument.

                                         2
direct appeal or in a petition for postconviction relief, he did not, and he is time-barred

from relief under the postconviction statute, § 46-21-102, MCA, which during the time

period relevant to Lott’s 1992 conviction required a petitioner to file within five years of

sentencing.2

¶4      In light of Guilluame and Whitehorn, it is apparent that the District Court

unconstitutionally enhanced Lott’s sentence with regard to the aggravated burglary and

felony assault convictions.     However, under the current statutory scheme, relief is

unavailable to Lott, as he is time-barred from filing either a direct appeal or a petition for

postconviction relief, and the habeas corpus statute prohibits Lott, who pled guilty and

failed to appeal (thereby exhausting his remedy of appeal), from challenging his sentence.

See § 46-21-102, MCA, and § 46-22-101(2), MCA. Given Montana’s constitutional right

to habeas corpus provided for in Article II, Section 19, the issue we address today is

whether the procedural bar established in the current habeas corpus statutory scheme is

unconstitutional as applied to a facially invalid sentence. We hold that, as applied to

Lott, it is.

                    The Writ of Habeas Corpus: A Brief Overview

¶5      In 1807, Chief Justice Marshall referred to the writ of habeas corpus as a “great

constitutional privilege.” Ex Parte Bollman and Ex Parte Swartwout, 4 Cranch 75, 95, 2


        2
        The present one-year filing requirement for postconviction relief went into effect
on April 24, 1997, and applies to all persons convicted on or after April 24, 1996. State
v. Wright, 2001 MT 247, ¶ 9, 307 Mont. 100, ¶ 9, 38 P.3d 772, ¶ 9. Individuals convicted
prior to that date are subject to the previous five-year filing deadline. Hawkins v.
Mahoney, 1999 MT 82, ¶ 9, 294 Mont. 124, ¶ 9, 979 P.2d 697, ¶ 9. Since Lott was
convicted in 1992, the five-year time period applies.

                                          3
L.Ed 554, 561 (1807). Literally meaning “you have the body,” habeas corpus ensures the

integrity of the legal process resulting in imprisonment. Originating in the English

common law, habeas corpus is a form of collateral attack that functions as an independent

proceeding “to determine whether a defendant is being unlawfully deprived of his or her

liberty.” Black’s Law Dictionary 709 (6th ed., West 1990). “Its root principle is that in a

civilized society, government must always be accountable to the judiciary for a man’s

imprisonment: if the imprisonment cannot be shown to conform with the fundamental

requirements of law, the individual is entitled to immediate release.” Fay v. Noia, 372

U.S. 391, 402, 83 S. Ct. 822, 829 (1963) (overturned in part on other grounds).

¶6    The so-called “Great Writ of Liberty” existed long before the founders of this

nation provided for its protection in Article I, Section 9, Clause 2, of the United States

Constitution. “[A] writ antecedent to statute [with] roots deep into the genius of our

common law,” Fay, 372 U.S. at 400, 83 S. Ct. at 828, English judges and legal authorities

described habeas corpus as “the birthright of the people,” and “one of the most important

safeguards of the liberty of the subject.” Donald E. Wilkes, Jr., Federal and State

Postconviction Remedies and Relief 41 (Harrison 1992). The first known habeas corpus

proceeding in the American colonies took place in Virginia in 1682. By the time the

founding fathers ensured for its protection in the federal constitution, habeas corpus had

already become an established right in the United States.             Wilkes, hereinafter

Postconviction Remedies at 76, 78.

¶7    “Although in form the Great Writ is simply a mode of procedure, its history is

inextricably intertwined with the growth of fundamental rights of personal liberty.” Fay,


                                         4
372 U.S. at 401, 83 S. Ct. at 828-29. The original common-law interpretation of habeas

corpus only applied relief to defendants challenging the trial court’s jurisdiction. With

time, however, habeas corpus became a collateral remedy for constitutional error. Ira P.

Robbins, Habeas Corpus Checklists 141 (Thomson/West 2006). At the federal level,

habeas corpus relief was codified by Congress in Chapter 153 of Title 28 of the United

States Code, specifically 28 U.S.C. §§ 2241 through 2255.           Wilkes, Postconviction

Remedies at 196. In addressing Congress’s authority to define and condition the writ, the

United States Supreme Court has recognized that “the power to award the writ by any of

the courts of the United States, must be given by written law,” and also that “judgments

about the proper scope of the writ are ‘normally for Congress to make.’” Felker v.

Turpin, 518 U.S. 651, 664, 116 S. Ct. 2333, 2340 (1996) (citing Ex parte Bollman, 4

Cranch 75, 94 (1807) and Lonchar v. Thomas, 517 U.S. 314, 323, 116 S. Ct. 1293, 1298

(1996)). The Supreme Court concluded that, in regards to statutory restrictions placed on

second habeas petitions, such Congressional restrictions “do not amount to a ‘suspension’

of the writ contrary to Article I, § 9” of the United States Constitution. Felker, 518 U.S.

at 664, 116 S. Ct. at 2340. In contrast to the United States Supreme Court’s deference to

Congress’s judgment about the proper scope of the federal writ, we conclude that

Montana’s guarantee of the privilege of habeas corpus embodies a fundamental, intrinsic

principle: the right to challenge the cause of one’s imprisonment. In Montana, therefore,

there are inherent limits on the Legislature’s ability to define or restrict the scope of the

writ because the fundamental principle of the writ cannot be “suspended” under Article

II, Section 19 of the Montana Constitution.


                                          5
¶8     Until the mid-1930s, postconviction habeas corpus relief for state prisoners in state

court was narrowly available and generally not applied to defendants imprisoned

pursuant to a criminal conviction unless the conviction or sentence was void for lack of

jurisdiction.   Wilkes, Postconviction Relief at 107.       State courts, however, often

recognized as a ground for habeas corpus relief a claim that the statute or ordinance

defining the offense for which the defendant had been convicted was unconstitutional, or

that the sentence was in excess of the statutory maximum, or otherwise unauthorized.

Wilkes, Postconviction Remedies at 107. After 1935, the states began the process of

expanding and modernizing their postconviction remedies and by 1970, nearly three-

quarters of the states had in some form or another expanded the availability of

postconviction relief by a process of liberal interpretation of the writ of habeas corpus

and/or the writ of error coram nobis.        Wilkes, Postconviction Remedies at 112-13.

Today, all states have a modern postconviction remedy authorized by case law, statutory

enactment, or promulgation of a rule of court. Wilkes, Postconviction Remedies at 546.

                 Habeas Corpus and Postconviction Relief in Montana

¶9     In Montana, the writ of habeas corpus was first provided for in Article III, Section

21, of the 1889 Constitution. A few decades later, in 1927, this Court explained,

       The purpose of a writ of habeas corpus is to determine the legality or
       illegality of the restraint alleged to be exercised. It is available only to
       those persons, or on behalf of those persons, unlawfully imprisoned or
       restrained of their liberty, and is independent of the legal proceeding under
       which the detention is sought to be justified.

August v. Burns, 79 Mont. 198, 213, 255 P. 737, 741 (1927) (citations omitted).




                                         6
¶10   Initially, habeas corpus relief in Montana not only provided for cases where

individuals were jailed without charge, but also served as the principal postconviction

remedy, used to attack convictions and sentences where judgment of the convicting court

was void for lack of jurisdiction. The writ was also available to raise certain claims

unrelated to the validity of the conviction or sentence. Donald E. Wilkes, Jr., State

Postconviction Remedies and Relief vol. 2, 311 (Harrison 2001).

¶11   In 1967, the legislature enacted the Montana Post-Conviction Hearing Act

(MPCHA) to explain the parameters of habeas corpus petitions, which included

postconviction claims. The MPCHA, an amalgam of the 1955 Uniform Post-Conviction

Procedure Act (UPCPA) and the Illinois Post-Conviction Hearing Act, was designed to

combat shortcomings in postconviction procedures.          Generally, until MPCHA’s

enactment, both pre-charge and postconviction claims alleging an illegal constraint were

referred to as petitions for “writs of habeas corpus.” 3 The MPCHA essentially divided

pre-charge claims from postconviction claims by creating two separate chapters: “Post-

Conviction Hearing” and “Habeas Corpus.” The legislation established jurisdiction in the

district courts, provided filing requirements and procedures for hearing postconviction

petitions, and limited successive petitions. Jeffrey T. Renz, Post-Conviction Relief, 55

Mont.L.Rev. 331, 334-36 (1994). In accordance with this statutory mandate, since 1967,


      3
        See Bubnash v. State, 139 Mont. 639, 366 P.2d 867 (1961) (this Court addressed
a petition for habeas corpus alleging that the trial court denied effective assistance of
counsel and abused its discretion in refusing to fix bail); In re Alden’s Petition, 143
Mont. 457, 391 P.2d 701 (1964) (petition of habeas corpus alleging due process and
equal protection violations); In re Davis’ Petition, 141 Mont. 565, 380 P.2d 880 (1963)
(petition for habeas corpus alleging ten postconviction issues).

                                        7
this Court has generally characterized most postconviction motions as petitions for “post-

conviction relief,” rather than “writs of habeas corpus.” Renz, 55 Mont.L.Rev. at 336.

¶12       In 1972, with ratification of Article II, Section 19, of the new constitution,

Montana again provided for constitutional protection of the right to habeas corpus,

providing that “[t]he privilege of the writ of habeas corpus shall never be suspended.”

Over the years, since the enactment of the MPCHA and the 1972 Constitution, the

legislature has amended the habeas corpus and postconviction statutes in an effort to limit

access to the postconviction remedy. The original 1967 MPCHA habeas corpus chapter

stated:

                  95-2701. Who may prosecute writ. Every person imprisoned or
          otherwise restrained of his liberty, within this state, may prosecute a writ of
          habeas corpus to inquire into the cause of such imprisonment or restraint,
          and if illegal to be delivered therefrom.

¶13       The postconviction chapter, on the other hand, provided parameters for when a

petitioner could challenge an imposed sentence, specifying that such relief is interrelated

to habeas corpus:

                 95-2601. Petition in the trial court. Any person adjudged guilty of
          an offense in a court of record who has no adequate remedy of appeal and
          who claims sentence was imposed in violation of the constitution or the
          laws of this state or the Constitution of the United States, or that the court
          was without jurisdiction to impose such sentence, or that sentence was in
          excess of the maximum authorized by law, or is otherwise subject to
          collateral attack, upon any ground of alleged error available under writ of
          habeas corpus, writ of coram nobis, or other common law or statutory
          remedy may move the court which imposed the sentence or the supreme
          court or any justice of the supreme court to vacate, set aside, or correct the
          sentence. [Emphasis added.]




                                             8
¶14    In 1981, the legislature implemented its first amendments to the habeas corpus

chapter, specifying that any claims challenging the validity of a sentence should be filed

pursuant to the postconviction statutes:

               46-22-101. Who may prosecute writ. (1) Except as provided in
       subsection (2), every person imprisoned or otherwise restrained of his
       liberty, within this state may prosecute a writ of habeas corpus to inquire
       into the cause of such imprisonment or restraint, and if illegal, to be
       delivered therefrom.

              (2) Relief under this chapter is not available to attack the validity of
       the conviction of a person who has been adjudged guilty of an offense in a
       court of record and has exhausted his remedy of appeal. Relief for such
       purposes is limited to the provisions of Title 46, chapter 21 [defining
       postconviction hearings]. [Emphasis added.]

¶15    Only four years later, in 1985, the legislature again amended the statute to provide

in subsection (2):

              Relief under this chapter is not available to attack the validity of the
       conviction or sentence of a person who has been adjudged guilty of an
       offense in a court of record and has exhausted his remedy of appeal; nor is
       relief under this chapter available to attack the legality of an order
       revoking a suspended or deferred sentence. Relief for such purposes is
       limited to the provisions of Title 46, chapter 21. [Emphasis added.]

¶16    When the legislature initially adopted the MPCHA, the specific postconviction

relief was available “at any time after conviction.” Section 95-2604, RCM (1967). In

1991, the lawmakers imposed a time period, limiting postconviction filings to “any time

within 5 years of the date of conviction.” Section 46-21-102, MCA (1991). Six years

later, the statute was again amended, this time imposing a one-year time limitation,

unless the claim alleges the discovery of new evidence. Section 46-21-102(2), MCA

(1997). The one-year time limitation for postconviction relief remains the law today.



                                           9
¶17    Thus, over the years, the writ of habeas corpus has become largely supplanted by

postconviction statutes which, in turn, have become increasingly restrictive. Today, an

individual incarcerated pursuant to an illegal sentence has one year from the date that his

or her conviction becomes final to file for postconviction relief. Section 46-21-102,

MCA. If an unconstitutionally incarcerated individual misses the time for appeal and the

one-year deadline, he or she is barred from legal recourse.

                                       Lott’s Petition

¶18    Turning to the case at hand, Lott contends that pursuant to Guillaume and

Whitehorn, the District Court unconstitutionally enhanced his sentence in violation of the

prohibition against double jeopardy. In response, the State asserts that habeas corpus

relief is inappropriate because Lott was adjudged guilty and could have raised these

constitutional issues on direct appeal or in a petition for postconviction relief; that, having

failed to raise the issue on appeal, he is now procedurally barred from raising it by way of

habeas corpus, § 46-22-101(2), MCA, and is time-barred from filing a petition for

postconviction relief. See § 46-21-102(1), MCA.

¶19    As mentioned at the outset, we recognize that the current habeas corpus statute

bars an individual such as Lott, who has been adjudged guilty of an offense and has failed

to appeal or has exhausted his remedy of appeal, to attack the validity of his sentence.

We also agree with the State that the direct appeal and postconviction remedies are no

longer available to Lott because the statutory time periods have passed. It is imperative

to note, however, that had Lott filed a timely direct appeal or petition for postconviction

relief, his double jeopardy argument would have been unavailing since the decisions on


                                          10
which he relies (Guillaume and Whitehorn) were not issued until well after both filing

dates had expired.

¶20   The procedural bar blocking Lott from seeking habeas corpus relief on his double

jeopardy claim is troubling to this Court given that Lott’s sentence was clearly enhanced

beyond constitutional limitations. The central function of the courts is the pursuit of

justice. Like all human endeavors, this pursuit is occasionally flawed. The writ of habeas

corpus is designed to correct such flaws and to remedy “extreme malfunctions in the state

criminal justice systems.” Jackson v. Virginia, 443 U.S. 307, 332 n.5, 99 S. Ct. 2781,

2796 n.5 (1979) (Stevens, J., concurring). Habeas corpus affords relief to those in society

who have been “grievously wronged.” Brecht v. Abrahamson, 507 U.S. 619, 637, 113

S. Ct. 1710, 1721 (1993). “From the time of the Magna Charta, the Great Writ of Habeas

Corpus has been liberally employed as a means of guaranteeing that [justice] be

accomplished and that a miscarriage of justice will be remedied. For at its heart, the writ

represents an acknowledgment of the principle that the rights of freedom of the individual

are worthy of protection.” State v. Perry, 232 Mont. 455, 462-63, 758 P.2d 268, 273

(1988) (citations omitted), overruled on other grounds State v. Clark, 2005 MT 330, ¶ 32,

330 Mont. 8, ¶ 32, 125 P.3d 1099, ¶ 32.

¶21    The Montana Constitution provides in Article II, Section 19, that “[t]he privilege

of the writ of habeas corpus shall never be suspended.” We can only assume that when

the delegates to the 1972 Constitutional Convention enacted this provision, they intended

to enshrine habeas corpus as recognized and applied in Montana as of 1972. As noted

above, in the decades leading up to the 1972 Constitution, the writ of habeas corpus had


                                          11
been applied to both pre-charge and postconviction claims.            While the MPCHA

statutorily defined postconviction relief in a chapter separate from habeas corpus,

enactment of the 1967 legislation was designed to provide more postconviction relief

than habeas corpus, not less. In the years since MPCHA’s enactment, however, the

legislature has slowly but progressively narrowed the scope and availability of

postconviction relief.

¶22    In light of the writ’s history and purpose, as well as Montana’s constitutional

guarantee in Article II, Section 19, that the writ of habeas corpus shall never be

suspended, we conclude that, as applied to a facially invalid sentence—a sentence which,

as a matter of law, the court had no authority to impose—the procedural bar created by

§ 46-22-101(2), MCA, unconstitutionally suspends the writ. We hold that incarceration

of an individual pursuant to a facially invalid sentence represents a “grievous wrong,”

Brecht, 507 U.S. at 637,113 S. Ct. at 1721, and a “miscarriage of justice,” Perry, 232

Mont. at 462, 758 P.2d at 273, warranting habeas corpus relief. When the delegates

ratified the 1972 Constitution, they intended, at a minimum, that an individual

incarcerated pursuant to a facially invalid sentence—for example, a sentence which either

exceeds the statutory maximum for the crime charged or which violates the constitutional

right to be free from double jeopardy—have the ability to challenge its legality.

¶23    The petition for writ of habeas corpus is hereby granted.           Since Lott has

challenged his sentence and not the underlying conviction, he “is not entitled to be

released but only to be resentenced.” Petition of Gray, 184 Mont. 363, 365, 603 P.2d

230, 231 (1979). Resentencing is also consistent with our holding in Guillaume, ¶ 25, the


                                         12
decision upon which Lott relies. This matter is remanded to the District Court for

resentencing on Counts 3 and 4.

      DATED this 27th day of October, 2006.



                                              /S/ W. WILLIAM LEAPHART



We concur:

/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ BRIAN MORRIS
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ JIM RICE




                                     13
