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Cox v. Fender

Supreme Court of Montana

February 6, 2018

JOHNNY RAY COX, Petitioner,
v.
DOUGLAS FENDER, Warden, Respondent.

          ORDER

         Representing himself, Johnny Ray Cox petitions this Court for habeas corpus relief, indicating that he may have an incorrect sentence calculation and that he may be due more credit for time served. In compliance with this Court's November 28, 2017 Order, the Attorney General for the State of Montana responds that this matter should be remanded to the Thirteenth Judicial District Court, Yellowstone County, with instructions to determine his credit for time served.

         The State provides much detail, which we summarize here, about Cox's 2011 and 2014 convictions arising in the Yellowstone County District Court. On December 19, 2011, the District Court committed Cox to the Department of Corrections (DOC) for two five-year terms for felony privacy in communication (Cause No. DC 11-162) and for felony violation of an order of protection concerning his girlfriend (Cause No. DC 11-370) (hereinafter 2011 cases). The terms were suspended and ran concurrently.

         Cox violated his probationary conditions twice in 2013. The State filed petitions to revoke both cases on September 20, 2013, and less than three weeks later, Cox was also charged with two felony counts of privacy in communication (Cause No. DC 13-825) (hereinafter 2013 charges). After being served a warrant, Cox remained in the Yellowstone Count Detention Facility (YCDF) until December 16, 2013. Cox posted bond on the 2011 cases and the 2013 charges. On March 28, 2014, Cox violated the terms of his conditions of release for the 2013 charges and was housed in YCDF until April 28, 2014. At that time, no warrant had been issued in his 2011 cases.

         While Cox's 2011 cases and 2013 charges were pending, his Probation and Parole Officers learned in July 2014, that Cox was harassing and threatening the former girlfriend's sister over the telephone. The court issued a probation violation warrant for Cox on August 4, 2014. Cox was arrested on August 11, 2014, on the probation hold and was detained in the YCDF. Cox was held in YCDF on pending new charges, beginning August 12, 2014. The State filed new charges of felony partner or family member assault (PFMA) and misdemeanor tampering with a communication device in late August 2014. Cox pleaded guilty to PFMA and was designated a persistent felony offender (PFO) on December 11, 2014, as stated in a plea agreement (Cause No. DC 14-0663) (hereinafter 2014 conviction). This plea agreement allowed for the dismissal of the misdemeanor charge and the 2013 charges.

         On July 28, 2015, the District Court handled the disposition of the 2011 cases and 2014 conviction. The court revoked the sentences for the 2011 cases and imposed concurrent suspended terms of more than four years[1] (hereinafter 2015 sentences upon revocation). The 2015 sentences upon revocation were to run consecutively to Cox's five-year commitment to the DOC for his 2014 conviction. The court also issued an Order which modified the plea agreement by removing the PFO designation.

         The State explains that three possible options exist for Cox's credit for time served related to his 2011 cases. The State acknowledges that Cox does not request any street time credit, only the actual time served as related to the 2011 cases. The State points out that Cox is due at least 102 days of pre-dispositional credit, pursuant to § 46-18-203(7)(b), MCA. The State lists these options as the following:

(1) The District Court's Orders for the 2015 sentences upon revocation show a credit of ninety-seven days from September 10, 2013 to December 16, 2013;
(2) Cox was also on a probation violation hold as noted in the Offender Management Information System (OMIS) and incarcerated from September 4 to 7, 2013, along with the afore-mentioned ninety-seven days, giving a total of 102 days; and
(3) Cox, according to his Location History Listing, was incarcerated from September 4, 2013 to December 16, 2013, or 103 days. Cox also was on a probation violation hold for one day (August 11 to August 12, 2014).

         The State suggests that this matter be remanded to the District Court for determination of his credit relating to his 2011 cases prior to the imposition of his 2015 sentences upon revocation.

         Addressing his other claims, the State points out where Cox is incorrect. The State first highlights that Cox's request to dismiss the 2015 sentences upon revocation are not appropriately before this Court under a petition for habeas corpus relief. Section 46-22-101(2), MCA. The State next reminds Cox that he is not due any time served related to his 2013 charges because he was never sentenced in that case due to its dismissal. Lastly, the State does not dispute that Cox is entitled to 350 days of pre-conviction credit for the 2014 conviction even though the Judgment has a scrivener's error of running the credit for time served beginning August 13, 2014, instead of August 12, 2014. The State concludes that the 350 days of credit should not be disturbed in the sentence for his 2014 conviction.

         We agree with the State that remand is appropriate here to determine the correct credit for time served. Accordingly, IT IS ORDERED that the petition for a writ of habeas corpus is GRANTED in part, and this matter is REMANDED to the Thirteenth Judicial District Court, Yellowstone County, under Cause Nos. DC 11-162 and DC 11-370, to determine the correct amount of credit for Cox's time served in 2013.

         IT IS FURTHER ORDERED that the petition for a writ of habeas corpus for all other claims is DENIED and DISMISSED.

         The Clerk of the Supreme Court is directed to provide a copy of this Order to the Hon. Michael Moses, Thirteenth Judicial District Court, Yellowstone County; to Terry Halpin, Clerk of District Court, Yellowstone ...


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