November 26, 2013
SEAN MICHAEL KELLEDY, Petitioner,
LEROY KIRKEGARD, WARDEN OF THE MONTANA STATE PRISON, Respondent.
Sean Michael Kelledy has asked this Court to issue a writ of habeas corpus ordering his immediate release from Montana State Prison (MSP). Kelledy asserts he has been under-credited for time served. At our request, the Department of Corrections (DOC) has filed a response to the petition.
In 1998, Kelledy was sentenced to 10 years in prison, all suspended, for Deceptive Practices and Tampering with a Witness. Later that year, he was contemporaneously charged with Accountability for Forgery and Issuing Bad Checks. He was sentenced to 5 years with 2 years suspended on each of those charges, to be served concurrently. He served the nonsuspended portion of those sentences at Montana State Prison (MSP).
In 2001, Kelledy was released from prison and went to North Carolina to compete his suspended sentences. In 2003, he absconded probation, the suspended 10-year sentence was revoked, and he was sentenced to 10 years at MSP for the probation violation with credit for 1, 155 days served. At that time, Kelledy had discharged the 5-year concurrent sentences for Accountability for Forgery and Issuing Bad Checks. He contends the court failed to articulate with the required specificity what credit he would receive for time served or why he was not to receive full credit for the time he had been on suspended status on his 5-year sentences.
In response, the DOC maintains Kelledy's calculations incorrectly assume that his 10-year and 5-year 1998 sentences ran concurrently. After examining the petition and response and the documentation attached to both, we are persuaded that DOC is correct. Under § 46-18-401(1)(b), MCA, the time Kelledy served on his convictions of Accountability for Forgery and Issuing Bad Checks did not count against his sentence for Deceptive Practices and Tampering with a Witness. The reasons articulated for the credit Kelledy was allowed upon revocation of his 10-year sentence were sufficient under the controlling statute, § 46-18-201, MCA (1995). Kelledy has not clearly shown that there are any questions as to the legality of his present incarceration.
Therefore, IT IS ORDERED that the petition for writ of habeas corpus is DENIED and DISMISSED.
The Clerk is directed to provide copies of this order to all counsel of record.