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State v. Cleland

Supreme Court of Montana

January 29, 2019

STATE OF MONTANA, Plaintiff and Appellee,
JACOB CODY CLELAND, Defendant and Appellant.

          Submitted on Briefs: December 19, 2018

          APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. ADC 16-16 Honorable Mike Menahan, Presiding Judge

          For Appellant: Chad Wright, Appellate Defender, Koan Mercer, Assistant Appellate Defender, Missoula, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Roy Brown, Assistant Attorney General, Helena, Montana

          Leo J. Gallagher, Lewis and Clark County Attorney, Melissa Broch, Deputy County Attorney, Helena, Montana



         ¶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 Defendant Jacob Cody Cleland appeals from the Judgment and Commitment of the First Judicial District Court, Lewis and Clark County, sentencing him to the Montana State Prison (MSP) for Sexual Intercourse Without Consent (SIWC). We remand for a determination of credit for time served (CTS) on his sentence.

         ¶3 On December 17, 2015, Cleland was arrested for SIWC, a felony in violation of § 45-5-503, MCA. At the time of his arrest, Cleland was serving a Department of Corrections (DOC) sentence on an unrelated charge. The DOC sentence was entirely suspended, and Cleland was placed at the Helena Prerelease Center and START[1] Center under DOC supervision at the time of the instant (SIWC) offense. The record does not indicate whether DOC revoked Cleland's supervised release.

         ¶4 On January 27, 2016, Cleland pled not guilty to the SIWC charge, and the District Court set his bond for $10, 000. On May 23-24, 2016, a jury trial was held, and the jury found Cleland guilty of SIWC. The District Court then ordered a Presentence Investigation Report (PSI). The PSI, dated July 14, 2016, reported that Cleland had been incarcerated for 210 days since his December 17, 2015 arrest. It is unclear from the record whether Cleland remained in custody until sentencing.

         ¶5 On August 19, 2016, the District Court held an initial sentencing hearing. Cleland's counsel was unable to attend, and the District Court continued the sentencing hearing to August 24, 2016. At that time, the District Court orally pronounced a sentence of thirty years in MSP, with twenty years suspended. The District Court did not discuss CTS, and Cleland did not raise it. However, the District Court's written judgment "granted credit for time served prior to sentencing for the time period of December 17, 2015 - December 23, 2015." Cleland appeals.

         ¶6 This Court reviews for legality sentences beyond one year of incarceration. State v. Hornstein, 2010 MT 75, ¶ 9, 356 Mont. 14, 229 P.3d 1206 (citing State v. Ariegwe, 2007 MT 204, ¶ 174, 338 Mont. 442, 167 P.3d 815). Whether a sentence is legal is a question of law, which we review de novo for correctness. Ariegwe, ¶¶ 174-75. A sentence is legal if it falls within statutory parameters and is constitutional. State v. Kotwicki, 2007 MT 17, ¶¶ 13, 19, 335 Mont. 344, 151 P.3d 892; State v. Hamilton, 2018 MT 253, ¶ 34, 393 Mont. 102, 428 P.3d 849.

         ¶7 "A person incarcerated on a bailable offense against whom a judgment of imprisonment is rendered must be allowed credit for each day of incarceration prior to or after conviction . . . ." Section 46-18-403(1), MCA; State v. McDowell, 2011 MT 75, ¶ 27, 360 Mont. 83, 253 P.3d 812 (citing § 46-18-403(1), MCA); Hornstein, ¶¶ 12-13. Each day of incarceration on a bailable offense must be credited against a defendant's sentence if the incarceration was "'directly related to the offense for which the sentence [was] imposed.'" Hornstein, ¶¶ 14, 16 (citing State v. Kime, 2002 MT 38, ¶ 16, 308 Mont. 341, 43 P.3d 290, overruled in part on other grounds by State v. Herman, 2008 MT 187, ¶ 12, 343 Mont. 494, 188 P.3d 978). Conversely, 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. Erickson, 2005 MT 276, ¶ 25, 329 Mont. 192, 124 P.3d 119.

         ¶8 A defendant serving an existing sentence who has been released on bond or other supervised release is not "incarcerated" and does not earn CTS against his sentence. See § 46-18-403(1), MCA; State v. Gulbranson, 2003 MT 139, ¶¶ 8, 12-13, 316 Mont. 163, 69 P.3d 1187, overruled in part on other grounds by Herman, ΒΆ 12. Where the existing record is insufficient to establish what CTS is due, the case ...

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