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Boggs v. McTighe

Supreme Court of Montana

June 11, 2019

EDWARD LEE BOGGS, Petitioner,
v.
PAT McTIGHE, Warden, Crossroads Correctional Center, Respondent.

          ORDER

         Edward Lee Boggs has filed a petition for a writ of habeas corpus, asserting that the Department of Corrections (DOC) has calculated his discharge date incorrectly. He includes several attachments. He explains that his sentence from the Ninth Judicial District Court, Pondera County, was imposed to run concurrently with his sentence upon revocation from the Eighth Judicial District Court, Cascade County, and that the DOC has instead run them consecutively.

         Boggs provides his background, which we supplement with available electronic records. On November 4, 2004, he was arrested and charged with felony driving under the influence of alcohol and/or drugs, 4th offense (DUI), in Cascade County. In January 2006, the Cascade County District Court sentenced him to Montana State Prison (MSP) for thirty years with twenty years suspended (hereinafter 2006 sentence). He states that he was arrested again on December 8, 2014, in Pondera County for felony DUI. He states that because he was facing a revocation in Cascade County, he negotiated, through counsel, a plea deal for a five-year sentence in Pondera County to run concurrently with the sentence from Cascade County.

         On April 20, 2015, at a change of plea hearing in the Pondera County District Court, the District Court committed Boggs for felony DUI to the DOC for a five-year term (hereinafter Pondera County sentence). The court stated then that "[t]his sentence is to run concurrently with the sentence in Cascade County Cause No. CDC-04-448." Sentence, at 2 (Mont. Ninth Judicial Dist. Ct. May 4, 2015). At that time, the petition in Cascade County to revoke Boggs's 2006 suspended sentence remained pending. On June 2, 2015, the Cascade County District Court held an evidentiary and dispositional hearing on the State's Petition for Revocation of Suspended Sentence. The District Court pointed out that Boggs began serving his suspended sentence on April 29, 2013, and found that Boggs had violated his terms of probation. The court revoked his suspended sentence and imposed a twenty-year sentence to MSP with ten years suspended (hereinafter 2015 sentence upon revocation). The court made no mention of Boggs's Pondera County sentence or whether his 2015 sentence upon revocation was to run concurrently or consecutively.

         Boggs asserts that the Pondera County sentence is controlling, and his sentences therefore run concurrently. He states that the DOC has run his sentences consecutively upon the mistaken conclusion that the 2015 sentence upon revocation is the controlling sentence. He understands that § 46-18-401(4), MCA, provides that, unless the judge specifically orders otherwise, two or more sentences run consecutively. He argues that this statute does not apply here because the Pondera County District Court ordered his sentence to run concurrently, which it re-affirmed in the court's April 8, 2019 Amended Sentence, correcting the cause number for the Cascade County case.

         The problem here arises from the timing of the sentences.

         The Pondera County District Court had no authority under Montana statutes to run Boggs's sentence concurrently to a sentence that had not been imposed We have held that a sentencing court exceeded its authority when it ordered its sentence to be served consecutively to one not yet imposed, explaining that imposition of such a sentence improperly interferes with the other court's sentencing discretion to impose the future sentence State v. McGuire, 260 Mont 386, 388, 860 P.2d 148, 149-50 (1993) See also State v. Jones, 2008 MT 331, ¶ 23, 346 Mont 173, 194 P.3d 86 (Rice, J, concurring) (citing to McGuire, 260 Mont, at 388, 860 P.2d at 149-50, and suggesting that "[t]he same rule should apply to the attempt to impose a sentence concurrent to a sentence which may be imposed in the future."). Boggs could not receive a sentence in April 2015 that was bound to run concurrently with a sentence not imposed until two months later. Moreover, the April 8, 2019 Amended Sentence from the Pondera County District Court does not change this calculation, as it corrected merely a typographical error.

         Boggs bears the burden to "sustain the allegations of his petition, to make out a prima facie case, to prove the facts or establish ground entitling him to relief, to overcome the presumption of validity and regularity of proceeding, and to show the invalidity of the judgment or sentence which he attacks." In re Hart, 178 Mont. 235, 249-250, 583 P.2d 411, 419 (1978). Given the controlling law, Boggs is unable to meet this burden. See Maguire, 260 Mont, at 388, 860 P.2d at 149-50.

         Unfortunately, Boggs has been under the mistaken interpretation that his two sentences run concurrently. They cannot. Because the Cascade County District Court did not specify that Boggs's 2015 sentence upon revocation runs concurrently with the Pondera County sentence, the sentences run consecutively. Section 46-18-401(4), MCA. Based upon the most recent 2015 sentence upon revocation, Boggs has consecutive sentences. The latter sentence controls the length of time, too. The Administrative Rules of Montana define controlling sentence. It "means the sentence(s) that, based on a district court judgment, requires the longest period of time served to parole eligibility." Admin. R. M. 20.25.202(3) (2016). The DOC correctly determined that Boggs had a longer time to serve for parole eligibility on his 2015 sentence upon revocation, and his prison discharge date is June 11, 2029.

         IT IS THEREFORE ORDERED that Boggs'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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