State v. Allen

• Decision Date: 21 October 2014
• Docket Number: No. DA 14–0176.,DA 14–0176.
• Citation: 348 P.3d 170 (Table)
• Court: Montana Supreme Court
• Parties: STATE of Montana, Plaintiff and Appellee, v. Kenneth Anthony ALLEN, Defendant and Appellant.

348 P.3d 170 (Table)

STATE of Montana, Plaintiff and Appellee
v.
Kenneth Anthony ALLEN, Defendant and Appellant.

No. DA 14–0176.

Supreme Court of Montana.

Submitted on Briefs Oct. 1, 2014.
Decided: Oct. 21, 2014.

For Appellant: Kenneth Anthony Allen, self-represented, Deer Lodge, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana, Fred R. Van Valkenburg, Missoula County Attorney, Missoula, Montana.

Opinion

Justice PATRICIA COTTER delivered the Opinion of the Court.

¶ 1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶ 2 On September 24, 1984, in Cause No. DC 84–6774, Kenneth Anthony Allen (Allen) pled guilty to robbery, aggravated kidnapping, and sexual intercourse without consent and was subsequently sentenced to a 40–year term of incarceration in the Montana State Prison. According to the State, Allen discharged his sentence under Cause No. DC 84–6774 in March 2011; however, Allen continues to serve a 25–year consecutive sentence imposed following a conviction for mitigated deliberate homicide committed during the 1991 prison riot. Allen has been denied parole in 2004, 2009, and 2012. His discharge date is set for 2025.

¶ 3 In 2004, the Department of Corrections (DOC) performed a risk assessment of Allen, which indicated that Allen was a high risk to reoffend. Based upon this determination, the DOC designated Allen as a level 3 sexual offender.

¶ 4 On November 12, 2013, Allen filed a “Motion for Nunc Pro Tunc” with the Fourth Judicial District Court in Missoula County contending that his due process rights had been violated by the DOC's designation determination. On February 24, 2014, the District Court denied Allen's motion concluding that he had adequate opportunities to challenge his designation at his parole hearings. This appeal follows.

¶ 5 Allen, on his own behalf, argues that the District Court erred in denying his Motion for Nunc Pro Tunc (which appears to seek an order striking the DOC tier designation). Allen, allegedly unaware of his DOC designation until 2012, asserts that his right to due process was violated by the DOC...