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Burkhart v. Dayton

Supreme Court of Montana

August 22, 2017

RICHARD EARL BURKHART, Petitioner,
v.
THIRD JUDICIAL DISTRICT COURT, HON. RAY DAYTON, presiding Judge, and MICHAEL FLETCHER, WARDEN, Respondents.

          ORDER

         Petitioner Richard Earl Burkhart was convicted of deliberate homicide under the felony-murder rule in 2002, and was sentenced to life imprisonment. See State v. Burkhart, 2004 MT 372, 325 Mont. 27, 103 P.3d 1037. In October 2006, while imprisoned at Montana State Prison, Burkhart and several other inmates participated in a prison riot. On November 27, 2007, in Powell County Cause No. DC-07-13L Burkhart was charged with multiple offense related to the riot. Pursuant to plea negotiations, Burkhart pled guilty to riot and criminal mischief On September 16, 2008, Burkhart was sentenced in that action to ten- and five-year concurrent prison terms, to be served consecutively to his life sentence. Then, in November 2016, the Cascade County District Court vacated Burkhart's 2002 homicide conviction based on a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963).

         Shortly thereafter, in December 2016, Burkhart filed a motion to amend the judgment in his 2008 criminal mischief and riot convictions or, in the alternative, a petition for writ of habeas corpus on grounds that the 2016 vacatur of his homicide conviction rendered his 2008 convictions subject to amendment or, alternatively, created an illegal detention. Burkhart argued he was entitled to receive credit for time served from October 27, 2006-the date of the acts resulting in the criminal mischief and riot charges-or, alternatively, from the date he was charged with criminal mischief and riot. The District Court denied Burkhart's motion and petition. It stated Burkhart's 2008 sentence would be discharged on September 14, 2018-apparently giving him credit for time served since his 2008 sentencing.

         With twenty days remaining before the deadline to appeal the District Court's decision, Burkhart filed the present petition in this Court. He asks this Court to exercise supervisory control over the Third Judicial District Court in his criminal mischief and riot convictions or, alternatively, to grant him a writ of certiorari. Specifically, Burkhart asks us to reverse the District Court's implicit ruling that he is not entitled to credit for time he served after the commission of the criminal mischief/riot offenses but before he was sentenced for those offenses. Additionally, Burkhart asks us to hold that, when a defendant incarcerated under an unrelated conviction is convicted of an offense during that incarceration and the unrelated conviction is later overturned, he or she is entitled to credit for time served starting on the day of the conduct constituting the new offense.

         The State of Montana has filed a response objecting to Burkhart's petition. The State asserts that, because Burkhart had twenty days remaining on his time to appeal the District Court's denial of his motion to amend/for writ of habeas corpus when he filed his petition with this Court, neither supervisory control nor certiorari is available to him. It asks us to convert the petition to one for a writ of habeas corpus. The State maintains that Burkhart's criminal mischief/riot sentence did not begin to run until his deliberate homicide conviction was overturned. Therefore, it asks us to clarify that Burkhart's criminal mischief/riot sentences started running on November 29, 2016-the date he was no longer serving time on his homicide conviction.

         DISCUSSION

         A writ of certiorari may properly issue only if the lower court lacked jurisdiction or exceeded its jurisdiction, there is no right to appeal from the disputed order, and there is no other plain, speedy, and adequate remedy. Valley Unit Corp. v. City of Bozeman, 232 Mont. 52, 54, 754 P.2d 822, 823 (1988). Supervisory control also is an extraordinary remedy, and is only justified if urgency or emergency factors make the normal appeal process inadequate, the case involves purely legal questions, and the other court is proceeding under a mistake of law and is causing a gross injustice or constitutional issues of state-wide importance are involved. M. R. App. P. 14(3).

         We agree with the State that this matter is appropriate for neither supervisory control nor certiorari because, at the time Burkhart filed his petition with this Court, he had a remedy of appeal from the denial of his motion to amend. He chose not to pursue that remedy.

         As stated above, Burkhart alternatively asked the District Court for a writ of habeas corpus. He had no right to appeal from the denial of his request for a writ of habeas corpus. See Thomas v. Doe, 2011 MT 283, ¶ 3, 362 Mont. 454, 266 P.3d 1255. However, he retained the right to file an original petition for writ of habeas corpus with this Court under § 46-22-101(1), MCA. The State suggests we consider Burkhart's petition to this Court as a request for a writ of habeas corpus.

         As Burkhart points out, however, the doctrine of res judicata may bar relitigation of issues in multiple petitions for writ of habeas corpus. Res judicata applies if three criteria are met: (1) the ground presented in the subsequent application was determined adversely to the applicant on the prior application; (2) the prior determination was on the merits; and (3) the ends of justice would not be served by reaching the merits of the subsequent application. Montgomery v. State, 2016 MT 169, ¶ 12, 384 Mont. 120, 375 P.3d 403, citing Kills on Top v. Slate, 279 Mont. 384, 399, 928 P.2d 182, 192 (1996). Here, Burkhart presents the same arguments he raised in his request to the District Court for a writ of habeas corpus. However, under the procedural history presented here, and in a case involving an issue of first impression in this State, we conclude the ends of justice will be served by reaching the merits of what we now deem to be Burkhart s application for a writ of habeas corpus.

         In his reply brief filed with this Court, Burkhart points to authority from eight other states and three federal circuit courts of appeal which have held that a person is entitled to time served from the date of the imposition of the sentence set to run consecutively to a sentence that has since been invalidated.[1] The District Court followed that rule.

         In arguing that he is entitled to credit for the time he served between the commission of the criminal mischief and rioting offenses and the date on which he was sentenced for those offenses, Burkhart relies on § 46-18-403(1), MCA. That statute states that a person incarcerated on a bailable offense and against whom a judgment of imprisonment is rendered must be granted credit for incarceration "prior to or after conviction." In response, the State cites our interpretation of that statute that "[a] defendant is not entitled to receive credit for preconviction time served on an offense if he is not incarcerated for that particular offense." State v. Henderson, 2008 MT 230, ¶ 9, 344 Mont. 371, 188 P.3d 1011.

         We first held that § 46-18-403(1), MCA, entitles a defendant to credit for time he or she was incarcerated only if that incarceration was directly related to the offense for which the sentence is imposed in State v, Kime, 2002 MT 38, ¶ 16, 308 Mont. 341, 43 P.3d 290, overruled on other grounds, State v. Herman, 2008 MT 187, 343 Mont. 494, 188 P.3d 978. Burkhart points out that his case can be distinguished from Kime and the cases that apply Kime-including Henderson-because, in Burkhart's case, the prior felony conviction was vacated. We find Kime instructive, however, as to the interpretation of § 46-18-403(1), MCA, because up until Burkhart's homicide conviction was vacated, his sentence on that conviction was still a legal sentence. We conclude that the statute does not entitle Burkhart to receive credit for time served prior to the entry of judgment against him for his criminal mischief/riot convictions.

         Under the procedural posture of this case, we decline to adopt the State's argument that the District Court's decision should be "clarified" in that Burkhart should not receive credit for time he served between his conviction on the criminal mischief/riot conviction and the vacating of his deliberate homicide conviction.

         Therefore, IT IS ORDERED that the Burkhart's petition, which we deem a petition for writ of habeas ...


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