Lervold v. Bludworth ( 2022 )

T1)
.U'iNAL
08/30/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: OP 22-0348
OP 22-0348
Ir
. J
DAVID LLOYD LERVOLD, AUG 3 0 2022
Bovve:n Greenwood
Clerk of Supren-te Court
Petitioner, Sk,ite of Montana
v. ORDER
PETE BLUDWORTH, Warden,
Respondent.
Representing himself, David Lloyd Lervold has filed a petition for a writ of habeas
corpus , where he raises two issues. We requested that the State of Montana or Departrnent
of Corrections respond to his first issue concerning his request for tirne while on parole
frorn August 16, 2018 to June 15, 2020, "the date of the violation that caused revocation
of parole." The Departrnent of Corrections (Department or DOC) responds that his
sentence upon revocation of his prior suspended sentence is facially invalid because it
extends his incarceration in violation of § 46-18-203(7)(a)(iii), MCA (2015).
Both Lervold and the Departrnent provide his criminal background. On April 23,
2014, the Richland County District Court sentenced Lervold for felony driving under the
influence of alcohol or drugs (DUI) to the Montana State Prison (MSP) to a five-year term
with three years suspended. The Board of Pardons and Parole (Board) denied him parole
initially. Lervold completed his custodial portion on December 29, 2015, and he began
serving his suspended sentence. In October 2016, Lervold was arrested for felony DUI in
Yellowstone County. The Yellowstone County District Court committed him to the DOC
for a five-year term and awarded credit for tirne served (2017 sentence).
On April 12, 2017, the Richland County District Court revoked Lervold's suspended
sentence and imposed a three-year DOC commitment to run consecutively to his 2017
sentence (2017 sentence upon revocation). (Emphasis added.) The court awarded credit
for time served as well as nine rnonths of tirne while on probation or elapsed time.1 The
Department explains in its response that Lervold was placed at MSP because of his nine
felony DUIs. The Board granted Lervold parole on his second appearance on July 26,
2018. MSP released Lervold on August 16, 2018.
Lervold provides that he was paroled on August 16, 2018, on two consecutive
sentences. He includes a copy of a sentence calculation. He states that he "maintained
successful parole without incident or violation until he was arrested [and] charged with
DUI June 15, 2020." Lervold attempts to argue the issue of statutory tolling yet provides
no authority. He argues that, by now, he should have discharged his 2017 sentence upon
revocation.
The Department responds that Lervold's Petition should be denied except for
correcting his 2017 sentence upon revocation. The Departrnent points out that our case
law precludes a district court to run a sentence upon revocation consecutively to another
existing sentence. See State v. White, No. DA 15-0475, 2016 Mont. LEXIS 542, Order, at
1 (Aug. 2, 2016). The Department explains that his 2017 sentence upon revocation was
not tolled while Lervold was on parole. Because the 2017 sentence upon revocation ran
consecutively to his 2017 sentence, the Departrnent adds that the sentence upon revocation
would not start until Lervold discharged his 2017 sentence. The Departrnent points to the
clarification of the statutory authority to irnpose a sentence consecutively in § 46-18-401,
MCA, frorn § 46-18-203, MCA, the statute for sentencing upon revocation. State v. Seals,
2007 MT 71, ¶ 15, 336 Mont. 416, 156 P.3d 15. The Departrnent explains that both the
2017 sentence and the 2017 sentence upon revocation would have commenced on the sarne
day, April 12, 2017, when run concurrently, and that upon the amendment of his 2017
Time while on probation is also known as street time or elapsed tirne. See § 46-18-203(7)(b),
MCA (2015) ("If a suspended or deferred sentence is revoked, the judge shall consider any elapsed
time, and either expressly allow all or part of the time as a credit against the sentence or reject all
or part of the time as a credit.").
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sentence upon revocation running concurrently, Lervold's sentence calculation would
change.
This Court agrees that Lervold's 2017 sentence upon revocation must be amended
to run concurrently with his 2017 sentence from Yellowstone County. Lervold is correct
that he should have discharged that sentence by now. As the Department provides, Lervold
would have discharged the sentence on June 9, 2019, rather than Decernber 21, 2023.
Lervold's second issue concerns § 61-8-401(1)(a), MCA (2019), the DUI
definitions, that has since been repealed and superseded as provided in 2021 Mont. Laws
ch. 498, and codified in Title 61, chapter 8, part 10, MCA. This challenge goes to his
conviction and is not proper for review under this writ. Section 46-22-101(2), MCA.
We turn to Lervold's issue of additional credit. The Department provides that the
Board "expressly declined to irnpose any 'dead tirne." Adrnin. R. M. 20.25.202(4) (2016)
provides: " ' Dead tirne' means the time an offender is not serving his/her sentence of
incarceration because a hearing panel has determined the offender was in violation of the
provisions of release." It appears that Lervold expects to receive sorne parity or equal
treatment now as when he received elapsed tirne while on probation in 2017 frorn the
Richland County District Court.
This Court has repeatedly recognized that the Board has broad discretion. Lervold,
however, requests credit while on parole and before his most recent violation, triggering
revocation of his parole. In seeking to acquire this additional credit, Lervold relies on State
v. Hornstein, 2010 MT 75, 356 Mont. 14, 229 P.3d 1206. While Hornstein may not be the
proper line of authority because the case dealt more with credit for pretrial detention while
being a parole violator, we understand Lervold's confusion.
In 2013, this Court stated, when considering a challenge to dead tirne or credit for
tirne served, that "the Board has the 'last word' here." Iafornaro v. O'Fallon, No. OP
13-0339, 2013 Mont. LEXIS 515, Order, at *3 (July 9, 2013). Petitioner Iafornaro sought
habeas corpus relief for "credit for tirne served against his Montana sentence frorn February
17 through October 11, 2012[.]" Iafornaro, at *2. We concluded that Iafornaro was not
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entitled to this credit. "The Board allocated as 'dead tirne,' the time from his first parole
violation on February 17 until Iafornaro's October 11, 2012 return to Montana custody,
and declined any credit for time served." Iafornaro, at *3. Petitioner Iafornaro could not
offer "this Court any authority or basis to disturb the Board's decision[.]" Order, at *3.
That line of reasoning makes sense. Here, Lervold contends that he was not in violation
of his release until June 15, 2020. Lervold states that he had no violations—compliance or
non-compliance—for almost two years, and his attached Report of Violation notes this
good conduct. Under these circumstances, unlike in Iafornaro, we conclude that Lervold
has shown cause to require the Department of Corrections to file a supplemental response
explaining the legal and supporting factual justification, if any, for the Board's failure to
consider or award Lervold any credit for time on parole frorn August 16, 2018 to June 15,
2020, during which he was not "in violations of the provisions of release."
Accordingly,
IT IS ORDERED that Lervold's Petition for Writ of Habeas Corpus is GRANTED
in part and his underlying matter, Cause No. DC 13-010, is REMANDED to the Seventh
Judicial District Court, Richland County, to arnend the 2017 sentence upon revocation to
run concurrently with his sentence from the Yellowstone County District Court, Cause No.
DC 16-1106.
IT IS FURTHER ORDERED that Lervold's claim concerning his DUI conviction
is DENIED.
IT IS FURTHER ORDERED that the Department of Corrections shall prepare,
serve, and file a supplemental response in this matter explaining the legal and supporting
factual justification, if any, for the Board's failure to consider or award Lervold any credit
for tirne on parole from August 16, 2018 to June 15, 2020, during which he was not "in
violations of the provisions of release."
The Clerk of the Supreme Court is directed to provide a copy to: the Honorable
Katherine M. Bidegaray, District Court Judge; Janice Klempel, Clerk of District Court,
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Richland County, under Cause No. DC 13-010; counsel of record; and David Lloyd
Lervold personally.
DATED this 3 0 day of August, 2022.
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