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State v. Stewart

Supreme Court of Montana

March 20, 2018

STATE OF MONTANA, Plaintiff and Appellee,
v.
WALTER STEWART, JR., Defendant and Appellant.

         APPEAL FROM: District Court of the Twenty-Second Judicial District, In and For the County of Big Horn, Cause No. DC 02-05 Honorable Blair Jones, Presiding Judge

          For Appellant: Chad Wright, Appellate Defender, Danny Tenenbaum, Assistant Appellate Defender, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana Jay Harris, Big Horn County Attorney, Hardin, Montana.

          OPINION

          Laurie McKinnon Justice.

         ¶1 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 Montana Reports.

         ¶2 Walter Mitchell Stewart, Jr., appeals from an order of the Twenty-Second Judicial District Court, Big Horn County, revoking his suspended sentence and resentencing him to ten years in prison, with no time suspended. We remand for modification of Stewart's sentence but otherwise affirm the judgment.

         ¶3 In 2002, Stewart pleaded guilty to two counts of criminal endangerment. The District Court sentenced him to two ten-year prison terms, to run consecutively, with all time suspended. At the beginning of 2012, Stewart completed his first ten-year suspended sentence and it was discharged. He then began serving his second ten-year suspended sentence. Subsequently, Stewart was convicted of a separate charge in federal court. The federal court sentenced Stewart to federal custody and thereafter a period of supervised release. Stewart was already serving his second ten-year suspended sentence when the federal court sentenced Stewart; thus, it appears that the federal sentence was intended to run concurrently with Stewart's second ten-year suspended sentence.

         ¶4 In November 2015, the State filed a petition to revoke Stewart's second ten-year sentence based on Stewart's failure to comply with the conditions of its suspension. Following a hearing, the District Court revoked Stewart's suspension and imposed a ten-year prison sentence with no time suspended. The District Court further ordered the ten-year prison sentence to run consecutively to Stewart's federal sentence.

         ¶5 Stewart argues on appeal that the District Court erred in ordering his second ten-year revoked sentence to run consecutively to his federal sentence. Section 46-18-203(7)(a)(iii), MCA, provides that, after revoking a suspended sentence, the sentencing court can "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." The State concedes that the District Court did not have the authority to order the sentences to run consecutively because that was not an option when Stewart was originally sentenced for criminal endangerment.

         ¶6 In this case, it was within the purview of the federal court, not the state court, to decide whether the sentences ran concurrently or consecutively. The federal court appeared to order the sentences to run concurrently, and it was error for the District Court to later order differently when revoking Stewart's second ten-year suspended sentence. Pursuant to our authority under § 46-20-703(1), MCA, we modify the District Court's judgment and order Stewart's ten-year sentence in a prison designated by the Montana Department of Corrections to run concurrently with, not consecutively to, his sentence imposed in the U.S. District Court for the District of Montana, Cause No. CR 12-86, United States of America v. Walter Mitchell Stewart, Jr. We accordingly remand this matter to the District Court and order the court strike the language ordering the sentences to run consecutively. Stewart's sentence is to run concurrently with his federal sentence in Cause No. CR 12-86.

         ¶7 Stewart also argues on appeal that the District Court violated § 46-18-203(7)(b), MCA (2015), when it revoked his suspended sentence without considering elapsed time and without stating the reasons for its determination. Section 46-18-203(7)(b), MCA (2015), provides:

If a suspended or deferred 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 judge shall state the reasons for the judge's determination in the order. Credit must be allowed for time served in a detention center or home arrest time already served.

         The State responds, contending that Stewart waived his claim regarding elapsed time because the District Court's sentence is legal and Stewart failed to object when the District Court declined to give him credit for elapsed time.

         ¶8 Generally, this Court will not review an issue on appeal if the party raising the issue did not object in the trial court. State v. Kotwicki, 2007 MT 17, ¶ 8, 335 Mont. 344, 151 P.3d 892. There exists a Lenihan exception to the general rule, and we will review a criminal sentence that is alleged to be illegal or in excess of statutory mandates, even if the defendant did not object in the trial court. Kotwicki, ¶ 8 (citing State v. Lenihan, 184 Mont. 338, 343, 602 P.2d 997, 1000 (1979)). A trial court's "failure to abide by a statutory ...


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