Supreme Court rejects appeal by former Billings school bus driver

2013-02-18T16:19:00Z 2014-08-25T07:48:13Z Supreme Court rejects appeal by former Billings school bus driverBy GREG TUTTLE gtuttle@billingsgazette.com The Billings Gazette

The Montana Supreme Court has rejected an appeal by a former Billings school bus driver who said he was illegally sentenced for hitting a student while driving drunk.

Timothy Joseph Whalen failed to properly submit his arguments on appeal or preserve his complaints about his case before asking the Supreme Court to intervene, according to an opinion issued earlier this month.

A panel of five justices also said Whalen cannot argue that a state sentence review process is unconstitutional because he has not gone through the process.

Whalen, a former state lawmaker and semi-retired attorney, is serving a sentence of six years with the state Department of Corrections, with 18 months suspended, for negligent vehicular assault and criminal endangerment.

Whalen, 55, was driving a First Student school bus on Sept. 25, 2009, with a blood-alcohol level greater than 0.118 percent when he hit a 15-year-old girl in a crosswalk.

The girl suffered a broken leg. Whalen briefly checked on the girl before leaving and continuing his route.

Whalen later pleaded guilty to the two felony charges in exchange for the dismissal of other charges. He was recently paroled from Montana State Prison.

While still imprisoned, Whalen filed an appeal to the state's high court, arguing that his rights were violated and his case should be sent back to Yellowstone County District Court.

Whalen represented himself in the appeal. He raised five issues in his appeal, including an assertion that District Judge Ingrid Gustafson imposed an illegal sentence, and that the sentence he received was cruel and unusual punishment.

Whalen also said that terms of his probation were unconstitutional, that Gustafson had illegally obtained his guilty pleas and that the state's Sentence Review Division uses an unconstitutional process to determine whether a defendant received a fair sentence.

In an opinion written by Justice Michael Wheat, the Supreme Court found that Whalen had failed to properly submit his arguments.

In one claim, the justices said, Whalen "sets forth no argument or authority in the body of his brief" and failed to follow proper court procedures.

In two of Whalen's complaints, the justices said, Whalen failed to properly preserve the issues for appeal by raising an objection at the time of his sentencing.

Copyright 2014 The Billings Gazette. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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