Opinion
OP 23-0435
08-29-2023
EDWARD S KLEINSASSER. Petitioner, v. JIM SALMONSEN, Respondent.
ORDER
Self-represented Petitioner Edward S Kleinsasser has filed a petition for a writ of habeas corpus, indicating that he has an illegal sentence and is incarcerated illegally. He states that he is entitled to his claim of ineffective assistance of counsel because his counsel never provided him the copy of the affidavit for the second sexual assault offense, only the first. He further states that he never received ''[his] discovery for the first and second accusation for sexual assault, [or the] one accusation of sexual intercourse." Kleinsasser contends that his due process rights have been violated because of these alleged errors and because at sentencing, the Rape Shield law was violated with the hearsay "of 10 other Alleged victims." He challenges his sentence as harsh.
We secured a copy of Kleinsasser s Judgment and Sentencing Order, issued in the Ninth Judicial District Court, Pondera County. On December 19, 2022, the District Court accepted Kleinsasser's open pleas to two counts of sexual assault of the Second Amended Information, listed as an alternative to the first count of sexual intercourse without consent. On March 23, 2023, the court imposed concurrent, prison sentences of sixty years with thirty-five years suspended for the two convictions. The court also imposed completion of Phases One and Two of the sexual offender program treatment. Kleinsasser did not appeal.
Kleinsasser brings his claims through the wrong remedy of habeas corpus to this Court. By not appealing his convictions and sentence, he is barred from raising his issues concerning the commencement of prosecution and his convictions. Section 46-22-101(2), MCA. :
We remind Kleinsasser that he entered guilty pleas in the District Court to the two sexual assault offenses. Kleinsasser appeared in court with counsel to answer to the charges. The District Court advised Kleinsasser of his constitutional rights during the December 19,2022 status hearing. The court stated in its Judgment and Sentencing Order:
The Defendant indicated that he understood his rights, and the rights he would be waiving as a result of the plea. The Defendant further indicated that he believed this plea was in his best interest and he was doing so of his own free will. The Defendant entered a plea of guilty to the charges and provided the [c]ourt with a factual basis to support his guilty plea. '
Judgment and Sentencing Order, at 1-2 (Mont. Ninth Judicial Dist. Ct. Apr. 7, 2023). The District Court did not violate Kleinsasser's due process rights. Neither did his counsel.
By entering guilty pleas, Kleinsasser has waived all issues with the charging documents, affidavits, or discovery. "We have said that 'a defendant waives the right to appeal all nonjurisdictional defects upon voluntarily and knowingly entering a guilty plea, including claims of constitutional violations which may have occurred prior to the plea.'" State v. Pavey, 2010 MT 104, ¶ 11, 356 Mont. 248, 231 P.3d 1104 (quoting State v. Violette, 2009 MT 19, ¶ 16, 349 Mont. 81, 201 P.3d 804). Consequently, after the plea, the defendant may attack only the voluntary and intelligent character of the plea, any jurisdictional defects, and any specified adverse pretrial rulings he has reserved the right to appeal.[]"' State v. Pavey, 2010 MT 104, ¶ 11, 356 Mont. 248, 231 P.3d 1104 (citing Violette, ¶ 16). Here, Kleinsasser is precluded from challenging his convictions in his writ of habeas corpus.
Kleinsasser is incarcerated on a facially valid sentence. His claims concerning his March 2023 sentencing hearing lack merit because the rules of evidence do not apply. This Court has explained before "'the rules of evidence are not applicable or controlling in sentencing hearings.'" State v. J. C., 2004 MT 75, ¶ 31, 320 Mont. 411, 87 P.3d 501 (quoting State v. Race, 285 Mont. 177, 180, 946 P.2d 641, 643 (1997) (citation omitted)). We further explained that a sentencing court is allowed "'to have the fullest information possible concerning the defendant's life and characteristics, so that the court is able to individualize punishment.'" J.C., ¶ 31 (citing Race. 285 Mont, at 180, 946 P.2d at 643).
The District Court did individualize Kleinsasser's punishment. Pursuant to § 45-5-502(3), MCA (2019), where the victim is less than sixteen years old and the offender is three or more years older than the victim, the court may impose a punishment of life in prison and not less than four years. The court stated as reasons: "The [c]ourt notes that the offense mandates a substantial prison sentence and is consistent with the Defendant's crimes." The court imposed a twenty-five-year term in custody, followed by a thirty-five-year probationary term.
Kleinsasser has not demonstrated an illegal sentence or illegal incarceration. Section 46-22-101(1), MCA. Kleinsasser has a remedy. He may bring any claims about ineffective assistance of counsel in a petition for postconviction relief with the sentencing court. Sections 46-21-101 to 46-21-104, MCA. Kleinsasser has less than a year to file such a pleading there. See § 46-21-102(1)(a), MCA. Accordingly, IT IS ORDERED that Kleinsasser's Petition for Writ of Habeas Corpus is DENIED and DISMISSED.
The Clerk of the Supreme Court is directed to provide a copy of this Order to counsel of record and to Edward S Kleinsasser personally.