State v. M. Brown , 2016 MT 60N ( 2016 )

March 8 2016
DA 15-0440
Case Number: DA 15-0440
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 60N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
MARK E. BROWN,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC 10-626
Honorable Ingrid Gustafson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Mark E. Brown (self-represented); Deer Lodge, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
Attorney General; Helena, Montana
Scott Twito, Yellowstone County Attorney, Robert S. Spoja, Deputy
County Attorney; Billings, Montana
Submitted on Briefs: February 10, 2016
Decided: March 8, 2016
Filed:
__________________________________________
Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.
¶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 Mark E. Brown appeals an order of the Thirteenth Judicial District Court,
Yellowstone County, denying his request for credit in Cause Number DC 10-626 for time
served from March 8 through September 2, 2011. We address whether the District Court
correctly concluded that Brown was not entitled to the credit because he was incarcerated
during that time solely for charges brought in a separate case: Cause Number DC 11-159.
We affirm.
¶3 On November 19, 2010, Brown was arrested for driving under the influence
(DUI). He was charged with felony DUI, Cause Number DC 10-626, and released on
bond on November 30, 2010. While those charges were pending, Brown was arrested on
March 8, 2011, for another DUI, Cause Number DC 11-159. Brown did not post a bond
in DC 11-159 and remained incarcerated. On September 2, 2011, the District Court
sentenced Brown in DC 10-626 to ten years at Montana State Prison with three years
suspended, to run concurrently to the sentence imposed in DC 11-159. The court ordered
that Brown receive credit in DC 10-626 for each day of time served from November 19
through November 30, 2010. The court further ordered that Brown receive credit in
DC 11-159 for each day of time served from March 8 through September 2, 2011. In
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April 2015, Brown moved to amend his sentence, requesting credit in DC 10-626 for time
served from March 8 through September 2, 2011. The District Court denied Brown’s
motion on the ground that his incarceration from March 8 through September 2, 2011,
was in connection with DC 11-159, and not DC 10-626.
¶4 We review a criminal sentence for legality only, to determine whether the sentence
falls within the statutory parameters. State v. Hernandez, 2009 MT 341, ¶ 3,
353 Mont. 111, 220 P.3d 25.
¶5 “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. However, “a defendant should only
be credited for time served prior to sentencing where the incarceration is directly related
to the offense for which the sentence is imposed.” State v. Erickson, 2008 MT 50, ¶ 21,
341 Mont. 426, 177 P.2d 1043 (emphasis in original). When two or more charges are
pending, a defendant is incarcerated on a charge for which he was released on bond if the
bond was revoked. See Erickson, ¶ 18. The record contains no indication that Brown’s
bond in DC 10-626 was revoked when he was incarcerated for the charges brought in
DC 11-159. Brown was credited in DC 11-159 for time served from March 8 through
September 2, 2011. Brown is not entitled to credit against his sentence in DC 10-626 for
time served solely on the charge brought in DC 11-159. Accordingly, Brown is not
entitled to credit in DC 10-626 for time served from March 8 through September 2, 2011.
¶6 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
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of the Court, the case presents a question controlled by settled law or by the clear
application of applicable standards of review. The District Court’s interpretation and
application of the law were correct. We affirm.
/S/ JAMES JEREMIAH SHEA
We Concur:
/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ PATRICIA COTTER
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