Z. Tenold v. Solmonsen ( 2021 )

03/23/2021
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 21-0048
OP 21-0048 F!'
MAR 2 3 2021
ZANE AARON TENOLD, Sowen Cireenwood
Clerk of Supreme Court
State of Montana
Petitioner,
v. ORDER
WARDEN JIM SALMONSEN,
Respondent.
Zane Aaron Tenold has filed a Petition for a Writ ofHabeas Corpus, explaining that
he is due more credit for time served for his concurrent sentences from the Ravalli County
District Court. In compliance with this Court's February 3, 2021 Order, the Special
Assistant Attorney General for the Department of Corrections (the Department or DOC)
responds that Tenold's Petition should be denied because Tenold has a consecutive
sentence. Lastly, Tenold moves this Court for leave to file a reply brief.
Both Tenold and the Department provide his criminal sentencing background along
with attachments. Tenold has four criminal cases; three are relevant here.' In 2007, the
Ravalli County District Court accepted Tenold's pleas of guilty to felony criminal
endangerment and felony theft. The District Court imposed a deferred sentence ofsix years
on each offense to run concurrently and awarded twenty days of credit for time served. In
2010, the District Court revoked Tenold's deferred sentence and sentenced Tenold to two,
suspended, concurrent ten-year commitments. Tenold points out that he received
fifty-three days of credit for time served.
On April 20, 2016, the court again revoked Tenold's suspended sentence and
resentenced him to two, concurrent DOC ten-year commitments with five years suspended
(hereinafter first sentence). Tenold received 72 hours or three days of credit for time
Tenold's second sentence, as designated by the DOC,originated in the Gallatin County District
Court, and Tenold has since discharged it.
served. On April 21, 2016, Tenold received a separate sentence for felony theft, and the
District Court sentenced him to a ten-year DOC commitment with five years suspended, to
run concurrently with his first sentence (hereinafter third sentence).
On March 14, 2018, Tenold appeared again in the Ravalli County District Court for
sentencing (hereinafter fourth sentence). The District Court committed Tenold to the DOC
for an unsuspended, five-year term, to run concurrently with his third sentence. The
District Court, however, did not state how this fourth sentence would run to Tenold's first
sentence.
Tenold contends that the DOC Montana State Prison (MSP)Records Department
has not included the correct amount of credit. He contends that all of his credit for time
served should merge with the concurrent running of his sentences. He further contends
that this miscalculation affects his parole eligibility and discharge dates. Tenold states that
he has an upcoming appearance before the Board ofPardons and Parole.
The Department explains that contrary to Tenold's assertions his sentences do not
all run concurrently. The Department states that his sentence calculations are correct and
provides an affidavit from the MSP Records Department Manager. Because the District
Court did not expressly state how his fourth sentence would run with his first sentence, the
Department points out that under Montana law, the fourth sentence runs consecutively to
his first sentence. Section 46-18-401(4), MCA. Consequently, the Department concludes
that his sentences do not merge. The Department explains in detail the credit oftime served
as applied to each sentence and that any suspended, noncustodial time of his first sentence
would not be served until Tenold serves the custodial portion Of his fourth sentence.
We agree with the Department that not all of Tenold's sentences run concurrently.
We conclude that the running ofTenold's sentences is correct. Upon review, however,this
Court has concern with Tenold's first sentence because he may have not received all the
credit that he was due, making it longer than the law allows. Section 46-18-403(1), MCA;
Lott v. State, 2006 MT 279, ¶ 22, 334 Mont. 270,150 P.3d 337. We point out that the
District Court awarded Tenold twenty days of credit for time served in jail in his original
deferred sentence. Section 46-18-201(9), MCA. For the 2010 revocation of his first
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sentence, as Tenold mentions, he received fifty-three days for credit in detention. Section
46-18-203(7)(b), MCA. According to the sentence calculation provided by each party,
Tenold only received three days of credit for time served. It is unclear whether Tenold
would be due at a minimum, twenty days, or at a maximum,seventy-three (20 + 53) days
of credit for time served, without duplication along with the 72 hours for his first sentence
because it was not included in the 2016 revocation judgment for his first sentence.
Therefore,
IT IS ORDERED that the counsel for the Department of Correction is GRANTED
thirty days from the date of this Order in which to prepare, file, and serve a supplemental
response to the issue of whether Tenold is entitled to any more credit for time served on
his first sentence. M. R. App. P. 14(7)(b). This Court will issue a decision on Tenold's
Petition after receipt ofthe supplemental response.
IT IS FURTHER ORDERED that Tenold's Motion for Leave to File Reply Briefis
DENIED and DISMISSED. M. R. App. P. 14(7)(a).
The Clerk is directed to provide a copy of this Order to counsel of record and to
Zane Aaron Tenold personally.
DATED this 234day of March, 2021.
Chief Justice
Justices
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