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Walker v. Guyer

Supreme Court of Montana

November 27, 2018

BRYCE J. WALKER, Petitioner,
v.
LYNN GUYER, Respondent.

          ORDER

         Bryce J. Walker has filed a petition for a writ of habeas corpus, asserting that he is due "full credit for time served during [his] probation between August 2012 through September 2015 ... ." He bases this assertion on the 2017 Senate Bill 63, which amended § 46-18-203, MCA. He further contends that these statutory changes are retroactive. He includes some supporting documents. We amend the caption to indicate the name of the current Warden. Section 46-22-201 (1)(c), MCA.

         Available electronic records indicate that Walker is currently serving a sentence upon revocation. In 2012, Walker pleaded guilty to felony sexual abuse of children in the Twenty-First Judicial District Court, Ravalli County. Ori September 20, 2012, the District Court imposed a ten-year suspended sentence and 180 days in the Ravalli County Jail with a credit of 180 days served. The State of Montana filed a petition to revoke Walker's suspended sentence on September 15, 2015. Walker appeared with counsel on October 29, 2015, and admitted the allegations in the petition. The District Court revoked his sentence and imposed a ten-year commitment to the Department of Corrections (DOC) with five years suspended. The court gave Walker credit for street time from September 20, 2012 to May 20, 2013.

         Walker argues that § 46-18-203(12), MCA, applies "to his current situation .. ." in seeking more credit for time while on probation, also known as street time. He restates the statute:

The provisions of this section apply to any offender whose suspended or deferred sentence is subject to revocation regardless of the date of the offender's conviction and regardless of the terms and conditions of the offender's original sentence.

         Section 46-18-203(12), MCA (2017). He asks "for day-for-day credit" of time served on probation of more than three years. He lastly indicates that we either remand his illegal sentence to the District Court for correction or direct the DOC to recalculate it.

         The 2017 Montana Legislature amended many parts of § 46-18-203, MCA. The specific subsection that Walker references existed in prior versions of Montana's Code. See § 46-18-203(9), MCA (2011); § 46-18-203(9), MCA (2013), and § 46-23-203(9), MCA, (2015). The statutory language's intent is not retroactive; it gives a District Court the authority to revoke a suspended sentence and impose a new sentence pursuant to § 46-18-203, MCA. This subsection (12) of § 46-18-203, MCA (2017), does not apply to Walker for his 2015 sentence upon revocation, and it does not affect any credit for probationary time.

         Walker points to the wrong statutory subsection for credit while on probation. Pursuant to § 46-18-203(7)(b), MCA (2015), when a judge revokes a suspended sentence, "the judge shall consider any elapsed time and either expressly allow all or part of the time as credit against the sentence or reject all or part of the time as a credit." Furthermore, "[t]he judge shall state the reasons for the judge's determination in the order." Section 46-18-203(7)(b), MCA (2015). The District Court gave Walker partial credit and then listed the reasons why he was not due any more credit after May 20, 2013. In the Judgment on Revocation of Suspended Sentence, the court expressly stated twelve violations, beginning in November 2013, and occurring during 2014 and 2015, and pointed out that "Defendant's ongoing behaviors are unsuitable to remaining in a community setting."

         Regardless of the statutory theory Walker advances, he is not entitled to his request for credit. Under Montana statutes, a District Court does not have to credit an offender with any time on probation. Here, the court gave Walker street time prior to the time of his probationary violations. It is within the court's discretion to credit Walker any street time. Section 46-18-203(7)(b), MCA (2015); Gundrum v. Mahoney, 2001 MT 246, ¶ 19, 307 Mont. 96, 36 P.3d 890. Walker was properly denied this credit. McDermott v. Dep 't of Corr., 2001 MT 134, ¶ 45, 305 Mont. 462, 29 P.3d 992.

         Walker is procedurally barred via habeas corpus to attack his 2015 sentence upon revocation. Pursuant to Montana's statute, he cannot challenge a sentence upon revocation under habeas corpus. Section 46-22-101(2), MCA. Walker's sentence is valid, and he has received all the credit he was due under the law. His sentence does not need recalculation. He has not demonstrated an illegal sentence or restraint. Section 46-22-101(1), MCA; Miller v. Eleventh Judicial Dist. Ct, 2007 MT 58, ¶ 14, 336 Mont. 207, 154 P.3d 1186. Accordingly, IT IS ORDERED that Walker's Petition for a Writ of Habeas Corpus is DENIED.

         The Clerk is directed to provide a copy of this Order to counsel of record ...


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