                                                                                           03/17/2020


           IN THE SUPREME COURT OF THE STATE OF MONTANA                               Case Number: OP 20-0109



                                       OP 20-0109


TRAVIS C. LOZEAU,SR.,                                                    LEE)
            Petitioner,                                               MAR 1 7 2020
                                                                    Bowen Greenwood
                                                                  Clerk of Supreme Court
                                                                     State of Montana
      v.
                                                                  ORDER
CAPTAIN JASON KOWALSKI,
MISSOULA ASSESSMENT &
SANCTION CENTER,

            Respondent.



       Representing himself, Travis C. Lozeau Sr. has filed a petition for a writ of habeas
corpus, claiming that his sentence is illegal because it is longer than the law allows. He
requests expungement of his "Felony Records Complet[e]ly." He is currently held at the
Missoula Assessment and Sanction Center, awaiting further placement by the Department
of Corrections(DOC).
       Lozeau explains his background and includes some documents from the Lake
County District Court, which we summarize. In October 2011, Lozeau pleaded guilty to
felony theft, and in 2012, the District Court deferred his three-year sentence (hereinafter
theft conviction).
       Available electronic records indicate that Lozeau was charged and convicted for
felony criminal possession of dangerous drugs in the Lake County District Court. On
May 29, 2012, the court sentenced him to the DOC for a five-year term with no time
suspended (hereinafter 2012 DOC sentence). The court awarded him eighty-four days of
credit for time served. The court then revoked the deferred sentence for his 2011 theft
conviction and imposed a suspended five-year term to run consecutively to his 2012
DOC sentence. Lozeau would have discharged his 2012 DOC sentence sometime in
March 2017 to begin serving his suspended term for the theft conviction.
       On December 18, 2019, the District Court determined that Lozeau violated the
terms of this probation and revoked his suspended sentence. The court committed him to
the DOC for three years with no time suspended.
       Lozeau requests that this Court grant his petition and release him based upon his
arguments. Lozeau contends that he was sentenced illegally after entering his guilty plea
because the conviction should have been for a misdemeanor, not a felony. He challenges
his conviction because the amount of restitution that he paid was $1,137.63—well below
the value of $1,500. Lozeau states that he has served more than nine years on his theft
conviction.
       Lozeau does not have a sentence longer than the law allows. We point out that in
his petition, Lozeau failed to disclose any information about his drug conviction and the
concomitant 2012 DOC sentence, accounting for five years in prison. As we explained
above, he comrnitted a new felony in 2012 and was required to serve that sentence prior
to serving any time related to his theft conviction. Moreover, a district court has statutory
authority to change a sentence when revoking an original deferred imposition of
sentence. (Emphasis added.) Section 46-18-203(7)(a)(iv), MCA (2011), provides that
"the judge may[,] if the sentence was deferred, impose any sentence that might have
originally been imposed." In 2012, the court revoked Lozeau's deferred sentence and
imposed a lawful, five-year term when the maximum punishment is a ten-year prison
term. Section 45-6-301(8)(b)(i), MCA (2011).
       Lozeau brings these challenges too late. Lozeau was found guilty of this offense
in a court of record and has exhausted his appeal remedy by failing to file a thnely
appeal. Section 46-22-101(2), MCA; Lott v. State, 2006 MT 279, ¶¶ 4, 19, 334 Mont.
270, 150 P.3d 337. Lozeau did not raise these claims prior to the court's imposition of
his sentence for his theft conviction, and he is barred from raising them now. Section
46-22-101(2), MCA. We further point out that the charging documents had listed the
value of money stolen over $2,200. Section 45-6-301(1)(a), MCA (2011). This dollar
amount set the offense as a felony. Section 45-6-301(8)(b)(i), MCA (2011). Lozeau is
barred procedurally from attacking his theft conviction.

                                              2
      Lastly, Lozeau is procedurally barred from challenging his sentence upon
revocation via habeas corpus. "The relief under this chapter is not available to attack the
legality of an order revoking a suspended or deferred sentence." Section 46-22-101(2),
MCA. Lozeau is not entitled to any habeas corpus relief, record expungement, or his
release. Accordingly,
      IT IS ORDERED that Lozeau's Petition for a Writ of Habeas Corpus is DENIED.
      The Clerk is directed to provide a copy hereof to counsel of record and to Travis
C. Lozeau Sr. personally.
       DATED this (         day of March, 2020.




                                                               Chief Justice


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