delivered the Opinion of the Court.
¶1 Gerald Dean Jackson (Jackson) appeals the order of the Ninth Judicial District Corut, Toole County, sentencing him to six years in Montana State Prison. We reverse and remand for re-sentencing.
PROCEDURAL AND FACTUAL BACKGROUND
¶2 The State charged Jackson with seven counts of felony sexual intercourse without consent in violation of § 45-5-503, MCA. Jackson entered into a plea agreement with the State under which Jackson pled guilty to one count of sexual intercourse without consent and the State dismissed the remaining charges. The court accepted the plea agreement and sentenced Jackson to a six-year commitment to the Department of Corrections (DOC). The court also designated Jackson a Level I sex offender and required him to complete phases I and II of the sex offender treatment program at the Montana State Prison before becoming eligible for parole.
¶3 Jackson filed a motion for re-sentencing more than two years after the court issued judgment in his case. Jackson alleged that his six-year commitment to the DOC violated § 46-18-201(3)(d)(i), MCA. This statute requires “all but the first 5 years of the commitment to the department of corrections must be suspended.” The court initially dismissed Jackson’s motion without prejudice based on the fact that § 46-21-102(1), MCA, and M. R. App. P. 5(b) imposed a time bar on Jackson’s efforts to pursue post conviction relief or direct appeal.
¶4 Jackson resurrected his argument in a petition for writ of habeas corpus. The State conceded that Jackson had received an illegal sentence in regard to his six-year DOC commitment, but argued that re-sentencing Jackson rather than striking the illegal portion of Jackson’s sentence constituted the proper remedy. The court vacated Jackson’s illegal sentence and re-sentenced Jackson to six years at Montana State Prison (MSP) with credit for time served. The court imposed the condition that Jackson complete phases I and II of the sex offender treatment program before becoming eligible for parole. The court concluded that changing Jackson’s sentence from a six-year DOC commitment to a six-year MSP sentence did not constitute a more onerous sentence. Jackson appeals.
¶5 We review a criminal sentence for legality only. We review
de novo
whether the district court violated the defendant’s constitutional right to due process at sentencing.
State v. Heath,
DISCUSSION
¶6 Whether the District Court violated Jackson’s right to due process by changing his sentence from a six-year DOC commitment to six years incarceration in MSP.
¶7 Jackson argues that the court violated his constitutional due process rights under
North Carolina v. Pearce,
¶8 Before we address the merits of Jackson’s claim, we first must resolve two procedural issues raised by the State. The State first argues that the District Court improperly considered Jackson’s challenge to his illegal sentence as a petition for writ for habeas corpus. The State asserts that Jackson cannot use habeas corpus proceedings to “collaterally attack” his sentence. The State argues that Jackson’s only remedy lies with a direct appeal or a post conviction relief petition, both options that Jackson remains time-barred from pursuing. The State contends that this Court lacks jurisdiction to consider Jackson’s appeal based on Jackson’s allegedly improper petition for writ of habeas corpus.
¶9 Article II, Section 19 of the Montana Constitution guarantees that the “privilege of the writ of habeas corpus shall never be suspended.” Any person imprisoned in Montana may “prosecute a writ of habeas corpus to inquire into the cause of imprisonment or restraint and, if illegal, to be delivered from the imprisonment or restraint.” Section 46-22-101(1), MCA. The writ of habeas corpus may not be used, however, to “attack the validity of the conviction or sentence of a person who has been adjudged guilty of an offense in a court of record and has exhausted the remedy of appeal.” Section 46-22-101(2), MCA.
¶10 The restriction on habeas corpus contained in § 46-22-101(2), MCA, stands in tension with the constitutional provision in Article II, Section 19 of the Montana Constitution, that “the writ of habeas corpus shall never be suspended.” We determined in
Lott v. State,
¶11 Jackson alleged, and the State readily conceded, that Jackson’s six-year commitment to DOC exceeded the statutory parameters of § 46-18-201(3)(d)(i), MCA. The State argued that re-sentencing J ackson represented the proper remedy. The writ of habeas corpus constitutes the proper remedy for addressing Jackson’s “grievous wrong.” Lott, ¶ 22. The court re-sentenced Jackson on January 12,2006, to a six-year term of imprisonment in MSP. Jackson filed a timely appeal of his second sentence under M. R. App. P. 5(b). We conclude that Jackson’s appeal is properly before the Court.
¶12 The State next argues that Jackson waived his right to challenge his original sentence under
State v. Micklon,
¶13 The State misplaces its reliance on
Micklon
in light of the fact that the State did not object to Jackson’s challenge at the time that he filed his petition for writ of habeas corpus in the sentencing court. The State admitted to the sentencing court that Jackson had received an illegal sentence and that the proper “remedy is to re-sentence the defendant.” Judicial estoppel binds the State to its judicial admissions and prevents the State from taking a position “inconsistent with previously made declarations in a subsequent action or proceeding.”
Kauffman-Harmon v. Kauffman,
¶14 We turn then to the merits of Jackson’s appeal: whether the District Court violated Jackson’s right to due process by changing his sentence from a six-year DOC commitment to six years incarceration in MSP. Due process requires a court to base a more burdensome re-sentence on “objective information concerning identifiable conduct of the defendant after the original sentencing and the reasons for the longer sentence must affirmatively appear on the record.”
State v. Redfern,
¶15 A sentence to MSP constitutes a more burdensome sentence than a commitment of the same term to the DOC as a sentence to MSP necessarily requires incarceration in a detention facility. Tracy, ¶¶ 18-20. A change in sentence from a DOC commitment to a term of imprisonment at MSP, however, does not always constitute a more onerous sentence. We determined in Heath that a shift in sentence from a DOC commitment to a term of imprisonment at MSP is not more burdensome where the change reduced the overall amount of time served under the sentence by twelve years. Heath, ¶ 11.
¶16 Jackson’s re-sentence from a six-year DOC commitment to a six-year term of imprisonment at MSP constitutes a more burdensome sentence under Tracy and Heath. The sentence to MSP affords Jackson less flexibility than his original commitment to the DOC. Tracy, ¶ 18. The change in Jackson’s sentence from the DOC commitment to a term of imprisonment also did not reduce the overall amount of time of Jackson’s sentence. Heath, ¶ 11. The court could have imposed this heavier sentence on Jackson if it had complied with the Pearce requirements as stated in Redfern, ¶ 12. Nothing in the record indicates, however, that the court based Jackson’s more burdensome sentence on “objective information concerning identifiable conduct of the defendant after the original sentencing.” Redfern, ¶ 12. Moreover, the record is devoid of the court’s reasons for imposing the weightier sentence. Redfern, ¶ 12. We conclude that the court violated Jackson’s due process rights.
¶17 We reverse Jackson’s sentence and remand to the District Court for re-sentencing in compliance with § 46-18-20l(3)(d)(i), MCA, requiring that “all but the first 5 years of the commitment to the department of corrections must be suspended.”
¶18 As the Court explains in ¶ 15, a change in sentence from a DOC commitment to a term of imprisonment at MSP does not automatically constitute a more onerous sentence. Rather, as we did in
Heath,
the Court
¶19 Here, Jackson was originally “committed to the Department of Corrections for six (6) years,” and, in light of his offense, was ordered to be ineligible for parole until he had “successfully complete[d] the Sexual Offender Program phases I and II at the Montana State Prison (or regional prison).” The sentence imposed additional parole conditions as well. Pursuant to this original sentence, Jackson was committed to prison by the DOC. He was serving that prison sentence, had completed Phase I and was in the process of completing Phase II of the Sexual Offender Program when he initiated this litigation to challenge his sentence, leading to his resentencing. The District Court then sentenced Jackson to six years in MSP, with credit for time served, and imposed the same conditions as the original sentence, including that he complete Phases I and II of the Sexual Offender Program before he would become eligible for parole, and would be subject to the same list of other parole conditions as ordered under the original sentence.
¶20 Under these circumstances, Jackson’s new sentence was not more onerous. His original sentence, though a DOC commitment, contained provisions making it as onerous as his second sentence. Though not a direct commitment to MSP, his original sentence required imprisonment by virtue of its conditions, making Jackson ineligible for parole until he had completed Phases I and II of the Sexual Offender Program within prison. Upon resentencing, the District Court simply re-imposed the sentencing outcome of Jackson’s first sentence, placing him at MSP with credit for time already served there, and again requiring that he complete the offender program before becoming eligible for release. As a practical matter, the new sentence was not less flexible than the original.
¶21 Thus, given these circumstances, I would affirm the District Court’s resentencing order.