Opinion
OP 22-0693
12-27-2022
MATTHEW M. MAYS, Petitioner, v. CAPTAIN JASON KOWALSKI, Respondent.
ORDER
Matthew Mays petitions this Court for habeas corpus relief, explaining that he wants "'to appeal [his] revocation sentence" that occurred on November 28, 2022, in the Fourth Judicial District Court, Missoula County.
Mays contends his wife was coerced "by her Probation Officer" to testify against him concerning the partner or family member assault (PFMA) charge. Mays also argues he could not be revoked because he has not yet been convicted of the new PFMA offense, and will not go to trial on that charge until February 2023. Mays asks the Court to place him in a treatment facility for thirty days and then release him to supervision.
Procedurally, Mays cannot challenge his sentence upon revocation through the remedy of habeas corpus. Section 46-22-101(2), MCA. Mays's remedy would be to file a direct appeal of his revocation sentence with this Court. Further, it does not matter that Mays has not yet been convicted of a new offense, because the State's showing of a preponderance of the evidence that a probationer engaged in new conduct that may constitute an offense is sufficient to support revocation as a non-compliance violation. See State v. Howard, 2020 MT 279, ¶ 13, 402 Mont. 54, 475 P.3d 392 (". . .conduct by the respondent that supports a new criminal charge or offense can also form the basis of the revocation petition, which must be proven by a preponderance of the evidence to establish a violation, but which may be demonstrated even if the criminal charges are dismissed. This is not the same proof necessary to obtain a conviction of the offense."). Therefore, IT IS ORDERED that the Petition for a 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 Matthew M. Mays along with a copy of this Court's Appellate Handbook.