Submitted on Briefs: May 3, 2017
FROM: District Court of the Fourth Judicial District, In and
For the County of Missoula, Cause No. DC 10-232 Honorable
Robert L. Deschamps, III, Presiding Judge
Appellant: Teuray Jeri Cornell, Self-Represented, Shelby,
Appellee: Timothy C. Fox, Montana Attorney General, Micheal
S. Wellenstein, Assistant Attorney General, Helena, Montana,
Kirsten Pabst, Missoula County Attorney, Shaun Donovan,
Deputy County Attorney, Missoula, Montana
Pursuant to Section I, Paragraph 3(c), 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
Teuray Cornell appeals the Fourth Judicial District
Court's denial of his motion for clarification and
modification of the court's order granting his request
for credit for time served. We affirm.
In August 2010, the District Court sentenced Cornell to the
Department of Corrections (DOC) for ten years with eight
years suspended for conspiracy to commit theft. The court
sentenced Cornell in December 2010 to a concurrent sentence
with the DOC for twenty years with nineteen years suspended
for criminal distribution of dangerous drugs.
The District Court revoked both sentences in April 2013
because Cornell violated the terms and conditions of his
judgments multiple times. The court imposed a sentence of
eight years with three suspended on the conspiracy charge and
nineteen years with fourteen suspended on the drug charge.
The court again ordered the sentences to run concurrently.
Neither revocation judgment said anything about allowing
credit for elapsed time.
Cornell asked the District Court to grant him credit against
the new sentence in the drug case for the time he already had
served on his original sentences. In February 2016, the court
issued an order granting Cornell credit against the
fourteen-year suspended portion of his sentence in the drug
case for "one year and 28 days of time between June 1,
2011 and June 28, 2012 [that] he was serving" in the
conspiracy case. It is unclear from the record how the court
calculated Cornell's time served in the conspiracy case.
During the period of time the court identified-June 1, 2011
to June 28, 2012-Cornell spent time at Montana State Prison,
the Missoula County Detention Facility, and out on parole.
Cornell filed a motion for clarification and modification of
the District Court's order in April 2016. Cornell
requested that the court give him credit against the
incarceration portion of his sentence in the drug case rather
than against the suspended portion. The District Court denied
Appearing pro se on appeal, Cornell argues that the District
Court improperly applied § 46-18-403, MCA. He contends
that the statute requires that credit for time served must be
applied against the actual incarceration time, not the
suspended portion of a sentence. He requests that we remand
with instructions to credit his time served in the conspiracy
case against the incarceration period of his drug sentence.
We review sentences for legality. State v.
Henderson, 2008 MT 230, ¶ 8, 344 Mont. 371, 188
P.3d 1011. Although Cornell relies on § 46-18-403(1),
MCA, the controlling statute on the issue he has raised is
§ 46-18-203(7)(b), MCA. That section provides that, if a
suspended sentence is revoked, "the judge shall consider
any elapsed time and either expressly allow all or part of
the time as a credit against the sentence or reject all or
part of the time as a credit." The statute further
requires credit "for time served in a detention center
or home arrest time already served." Section
46-18-203(7)(b), MCA. A suspended sentence is a
"judicial disposition of a criminal proceeding, "
§ 46-1-202(25), MCA, and is a "sentence" that
may be imposed under § 46-18-201(2), MCA. Upon
revocation, the sentencing court may "require the
offender to serve either the sentence imposed or any sentence
that could have been imposed that does not include a longer
imprisonment or commitment term than the original
sentence." Section 46-18-203(7)(a)(iii), MCA.
The District Court revoked only the suspended portion of
Cornell's sentences; he was not entitled as a matter of
law to receive credit for the time during which he was
incarcerated on the unsuspended portion of the sentences.
Nonetheless, the court had discretion under §
46-18-203(7)(b), MCA, to grant him some credit for the time
elapsed. When the District Court revoked Cornell's
sentences, it gave him credit and applied it to the suspended
portion of his drug sentence. Cornell has not ...