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Montana Administrative Register Notice 20-26-51 No. 4   02/23/2012    
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BEFORE THE DEPARTMENT OF CORRECTIONS

OF THE STATE OF MONTANA

 

In the matter of the adoption of New Rules I through V pertaining to the education of exonerated persons

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NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION

TO:  All Concerned Persons

 

            1.  On March 16, 2012, at 10:00 a.m., the Department of Corrections will hold a public hearing in Room 3-65 of 5 South Last Chance Gulch, at Helena, Montana, to consider the proposed adoption of the above-stated rules.

 

2.  The Department of Corrections will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice.  If you require an accommodation, contact Department of Corrections no later than 10:00 a.m. on March 13, 2012, to advise us of the nature of the accommodation that you need.  Please contact Myrna Omholt-Mason, Department of Corrections, 5 South Last Chance Gulch, Helena, Montana, 59620; telephone (406) 444-3911; fax (406) 444-4920; or e-mail momholt-mason@mt.gov.

 

3.  The rules as proposed to be adopted provide as follows:

 

NEW RULE I  DEFINITIONS  (1)  "Department" means the Department of Corrections as authorized in 2-15-230, MCA.

(2)  "Exonerated person" means a person who was convicted of a felony offense in the state of Montana; was incarcerated in a state prison for the felony offense; and whose felony offense was overturned or later dismissed based on the results of postconviction forensic DNA testing that exonerated the person of the crime for which the person was convicted and incarcerated.

 

AUTH: 53-1-214, MCA

IMP: 53-1-214, MCA

 

STATEMENT OF REASONABLE NECESSITY: New Rule I is necessary to implement 53-1-214, MCA, that mandates the department pay educational expenses for exonerated persons.  It is necessary to define terms used in the subsequent rules in this section.

 

            NEW RULE II  PROGRAM AND ELIGIBILITY  (1)  There is a program that may pay education expenses for exonerated persons.  The department may pay educational expenses for an exonerated person as described in these rules.  Educational reimbursement is contingent upon legislative appropriation of funds for this purpose.

            (2)  To be eligible for educational reimbursement the exonerated person must have:

            (a)  been convicted of a felony criminal offense in the state of Montana;

            (b)  been imprisoned in a state prison as described in 53-30-101, MCA, or in a prison out-of-state as a result of transfer through the interstate compact as a result of the conviction;

            (c)  had the felony criminal offense for which the exonerated person was imprisoned overturned or dismissed by a court of competent jurisdiction; and

            (d)  had the conviction overturned or dismissed as a result of postconviction forensic DNA testing.

            (3)  An exonerated person is eligible to receive benefits under these rules for ten years after the exonerated person's release from incarceration.

 

AUTH: 53-1-214, MCA

IMP: 53-1-214, MCA

 

STATEMENT OF REASONABLE NECESSITY:  New Rule II is necessary to implement 53-1-214, MCA that mandates the department pay educational expenses to exonerated persons.  It is necessary to define who may be designated as an exonerated person within the parameters of the statute.  The department decided to take this approach because it is the criteria listed in the statute.

 

            NEW RULE III  APPLICATION AND DESIGNATION  (1)  For an exonerated person to receive educational aid the person must submit an application to the department's main office in Helena, Montana on a form made available at the department's main office or on the department's web site.  The main office address is: Department of Corrections, 5 South Last Chance Gulch, Helena, Montana, 59620.

            (2)  The application must be received by the department 30 days before the person incurs the expense for which the person requests reimbursement.

            (3)  The exonerated person must submit the following items along with the completed application:

            (a)  the exonerated person's judgment of imprisonment or commitment to the Department of Corrections;

            (b)  a certified copy of the document that overturned or dismissed the conviction for which the person was incarcerated; and

            (c)  documentation that the conviction was overturned as a result of postconviction forensic DNA testing.

            (4)  If the application meets the criteria listed in New Rule II(2), the department will approve the application.  After the application has been approved, the department will send the exonerated person a letter stating the exonerated person is designated as an exonerated person eligible to receive aid at the institutions and for the expenses listed in these rules.

            (5)  The designation of exonerated person entitles the exonerated person to receive benefits for up to five years from the time the exonerated person begins an educational program that is reimbursed under these rules, but in no instance will the department reimburse the exonerated person beyond the time the exonerated person attains a bachelor's or master's degree or ten years after the exonerated person was released from incarceration.

 

AUTH: 53-1-214, MCA

IMP: 53-1-214, MCA

 

STATEMENT OF REASONABLE NECESSITY: New Rule III is necessary to implement 53-1-214, MCA, that mandates the department reimburse persons who spend time in prison and who are later exonerated for the crime for which they were incarcerated.  The department fashioned New Rule III to most effectively have the exonerated person prove he or she is eligible to receive educational benefits while making the procedure as simplified as possible to effectuate the bill sponsor's request that the process be speedy and simple to access, while at the same time giving the department the necessary information to appropriately make the designation.

 

            NEW RULE IV  APPROVED EDUCATIONAL INSTITUTIONS AND EXPENSES  (1)  The department will pay an eligible exonerated person's expenses associated with the following educational institutions that are designated as approved educational institutions:

            (a)  a Montana community college;

            (b)  a unit of the Montana university system, as described in 20-25-201, MCA; or

            (c)  any accredited Montana tribally controlled community college.

            (2)  The department will pay an eligible exonerated person's expenses associated with:

            (a)  efforts to meet admission standards or requirements for admission at one of the above listed educational institutions including:

            (i)  a course of study to satisfy requirements for a certificate of equivalency of completion of secondary education (GED); and

            (ii)  assistance in completing any adult education program or courses.

            (3)  Upon proper proof and documentation as outlined in New Rule V, the department will pay the eligible exonerated person's expenses for tuition, fees, books, and room and board.

 

AUTH: 53-1-214, MCA

IMP: 53-1-214, MCA

 

STATEMENT OF REASONABLE NECESSITY: New Rule IV is necessary to implement 53-1-214, MCA, that mandates the department reimburse exonerated persons who spend time in prison and who are later exonerated for the crime for which they were incarcerated.  The department fashioned New Rule IV to reflect the institutions and expenses listed in the statute.

 

            NEW RULE V  PROCEDURE TO RECEIVE BENEFITS  (1)  To receive benefits the exonerated person, on a form provided by the department, must establish and show proof of admission to an educational institution listed in New Rule IV and current enrollment or enrollment in a program of preparation for admission to an approved educational institution.

            (2)  Upon establishment of admission or enrollment, the department will establish a reimbursement plan with the exonerated person.

            (a)  The department will pay the costs for tuition, fees, and room and board directly to the educational institution or program.

            (b)  Expenses for books will be reimbursed to the exonerated person with presentation of a proper receipt.

            (c)  If the exonerated person does not live on campus during the period of enrollment in an educational program, the department will pay the exonerated person the average amount of room and board charged at a unit of the Montana university system for the duration of active enrollment.

            (3)  The exonerated person must furnish proof of enrollment for each new educational period, the beginning of each semester, or the beginning of each educational course in preparation for college admission.

 

AUTH: 53-1-214, MCA

IMP: 53-1-214, MCA

 

STATEMENT OF REASONABLE NECESSITY: New Rule V is necessary to implement 53-1-214, MCA, that mandates the department reimburse persons who spend time in prison and who are later exonerated for the crime for which they were incarcerated.  The department fashioned New Rule V to most effectively enable the department to reimburse the exonerated person while making the procedure as simplified as possible to effectuate the bill sponsor's request that the process be speedy and simple to access.

 

            4.  Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing.  Written data, views, or arguments may also be submitted to: Myrna Omholt-Mason, Department of Corrections, 5 South Last Chance Gulch, Helena, Montana, 59620; telephone (406) 444-3911; fax (406) 444-4920; or e-mail momholt-mason@mt.gov, and must be received no later than 5:00 p.m., March 22, 2012.

 

5.  Diana Koch, Department of Corrections, has been designated to preside over and conduct this hearing.

 

6.  The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency.  Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices.  Notices will be sent by e-mail unless a mailing preference is noted in the request.  Such written request may be mailed or delivered to Myrna Omholt-Mason, 5 South Last Chance Gulch, Helena, Montana, 59620 or may be made by completing a request form at any rules hearing held by the department.

 

7.  An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register.  The Secretary of State strives to make the electronic copy of the notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered.  In addition, although the Secretary of State works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.

 

8.  The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled.  The primary bill sponsor was contacted by telephone on November 16, 2011.

 

/s/  Diana Koch                     /s/  Mike Ferriter                               

Diana Koch                           Mike Ferriter

Rule Reviewer                     Director

                                                Department of Corrections

           

Certified to the Secretary of State February 13, 2012.

 

 

 

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