BRYCE J. WALKER, Petitioner,
LYNN GUYER, Respondent.
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
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.
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 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
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.
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.
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."
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.
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.
Clerk is directed to provide a copy of this Order to counsel
of record ...