                                         DA 06-0342                                      October 23 2007

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2007 MT 276



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

SHAWN THEODORE DAMON,

              Defendant and Appellant.


APPEAL FROM:          District Court of the Eighth Judicial District,
                      In and For the County of Cascade, Cause No. BDC-00-252(c)
                      Honorable Kenneth R. Neill, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Jeremy S. Yellin, Attorney at Law; Havre, Montana

               For Appellee:

                      Hon. Mike McGrath, Attorney General; Ilka Becker, Assistant
                      Attorney General, Helena, Montana

                      Brant S. Light, Cascade County Attorney; John Parker, Deputy
                      County Attorney, Great Falls, Montana



                                                  Submitted on Briefs: April 4, 2007

                                                             Decided: October 23, 2007


Filed:

                      __________________________________________
                                        Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.



¶1     Shawn Theodore Damon (Damon) appeals from the order entered by the Eighth

Judicial District Court, Cascade County, revoking his suspended sentence and sentencing

him to the Montana Department of Corrections for a 5-year period. We affirm.

¶2     Damon raises the following issues on appeal:

¶3     1. Did the District Court err in crediting Damon’s sentence with only a portion of the

time he served while incarcerated prior to the revocation of his sentence?

¶4     2. Did the District Court err in failing to sufficiently state in its written disposition

order its reasons for granting or denying credit against Damon’s sentence for the time which

elapsed prior to the revocation of his sentence?

                                      BACKGROUND

¶5     In 2001, Damon was sentenced on a felony conviction to the Montana Department of

Corrections (DOC) for 10 years, with 5 years suspended upon conditions, and on a

misdemeanor conviction to the Cascade County Detention Center (Detention Center) for 6

months, the sentences to run concurrently. He began serving the suspended portion of his

sentence on June 8, 2005. Several weeks later, Damon was arrested and charged under a

separate cause number with several offenses. He eventually pled guilty to one count of

felony obstruction of justice in that case and, in January of 2006, he received a 10-year

suspended sentence, with credit for the time he served—from June 30 to November 2,

2005—in the Detention Center following his arrest.

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¶6     On November 30, 2005, Damon was arrested for violating conditions of his probation

imposed in this case and the State of Montana (State) petitioned the District Court to revoke

the 5-year suspended portion of his original sentence based on the alleged violations. The

District Court held a combined evidentiary and dispositional hearing on the State’s petition.

It revoked Damon’s 5-year suspended sentence based on probation violations and sentenced

Damon to a 5-year term with the DOC, with credit for 98 days of time served in the

Detention Center after the arrest for the probation violations. The District Court refused to

credit Damon’s sentence for “street time” during the probation period immediately following

June 8, 2005, based on his early violation of his probation conditions, and denied Damon’s

request for credit for time served during the period he was incarcerated after arrest for the

charges in the separate cause number. The District Court subsequently entered its written

disposition order and Damon appeals.

                                STANDARD OF REVIEW

¶7     We review a criminal sentence for legality, determining whether the sentence is

within statutory parameters. State v. Tracy, 2005 MT 128, ¶ 12, 327 Mont. 220, ¶ 12, 113

P.3d 297, ¶ 12 (citations omitted).

                                        DISCUSSION

¶8     1. Did the District Court err in crediting Damon’s sentence with only a portion
of the time he served while incarcerated prior to the revocation of his sentence?

¶9     Section 46-18-203(7)(b), MCA, provides that

       [i]f 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. The judge shall
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       state the reasons for the judge’s determination in the order. Credit must be
       allowed for time served in a detention center or home arrest time already
       served.

Damon contends that the plain language of the final sentence of the statute required the

District Court, upon revoking his suspended sentence, to credit his new sentence with all the

time he spent incarcerated in the Detention Center during the period of suspension,

regardless of the underlying reason for that incarceration. Stated differently, he asserts

entitlement to credit for the time he served in the Detention Center following his arrest for

the charges in the separate cause number. Damon cites to no Montana case law supporting

his position or otherwise interpreting the statute on which he relies.

¶10    We recently addressed § 46-18-203(7)(b), MCA, in the context of crediting time

served in incarceration against multiple revoked sentences. In Tracy, the district court

sentenced Tracy in two separate Yellowstone County cases in 1999. In the first case, the

sentence was two prison terms of 5 years each, all suspended. In the second case, on the

same day, Tracy was sentenced to a prison term of two years, suspended. All three sentences

were to run concurrently. Tracy, ¶¶ 6-7. In 2000, Tracy’s Yellowstone County sentences

were revoked and the district court sentenced him in the first case to a 5-year commitment to

the DOC, with four years suspended, and in the second case to a one-year DOC commitment,

with the sentences to run concurrently. Tracy was transported to the Montana State Prison

(MSP) to begin serving his sentences. Two months later, Tracy was transported to Cascade

County where he was sentenced on a felony theft conviction to a 10-year commitment to the

DOC, all suspended. That sentence was ordered to run concurrently with his prior

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Yellowstone County sentences. Tracy then returned to the MSP. Tracy, ¶ 8. He eventually

was released on probation on March 6, 2003. Tracy, ¶ 9.

¶11    In December of 2003, the district court revoked Tracy’s 10-year suspended sentence

on the Cascade County conviction and sentenced him to a 10-year prison term with 5 years

suspended. The district court refused to credit Tracy’s sentence with the time he served in

the MSP while incarcerated on the Yellowstone County convictions, concluding that the

incarceration was not directly related to his Cascade County sentence. Tracy, ¶ 10. Tracy

appealed, arguing that § 46-18-203(7)(b), MCA, required he be given credit on his Cascade

County sentence for all time he served in the MSP on his concurrent Yellowstone County

sentences. Tracy, ¶ 24.

¶12    In Tracy, we observed that, pursuant to § 46-18-401, MCA, when a sentencing court

orders a sentence to run concurrently with another sentence the defendant already is serving,

the two sentences merge. Tracy, ¶ 27. Consequently, when Tracy’s Cascade County

sentence was ordered to run concurrently with the Yellowstone County sentences he already

was serving, the Cascade County sentence merged with—and ran at the same time as—the

Yellowstone County sentences. Thus, from the date the Cascade County sentence was

imposed, it was necessary to credit all time served in detention on the Yellowstone County

sentences against the suspended Cascade County sentence Tracy was serving

simultaneously. Tracy, ¶ 28. We determined that “[w]ere we to hold otherwise, by the

simple device of seeking revocation of some, but not all, of several concurrent sentences, the



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State in this case would have been able to, in effect, convert a concurrent sentence to a

consecutive sentence contrary to law.” Tracy, ¶ 28.

¶13    In the present case, however, the parties agree that Damon’s 10-year suspended

sentence for felony obstructing justice was ordered to run consecutively to his revoked 5-

year suspended sentence for felony criminal endangerment. Thus, unlike the situation in

Tracy, Damon’s revoked 5-year sentence does not merge with his 10-year suspended

obstructing justice sentence; he must first serve the revoked 5-year sentence, then begin

serving the 10-year suspended sentence. See § 46-18-401(1), MCA.

¶14    Pursuant to § 46-18-403(1), MCA, Damon received credit against his 10-year

suspended sentence for the time he was incarcerated in the Detention Center between June

30 and November 2, 2005, as a result of his arrest for the obstruction of justice offense.

Thus, when he begins serving that 10-year suspended sentence, the sentence will be reduced

by that amount of time. Damon’s incarceration from November 30, 2005, to March 7, 2006,

was directly related to his arrest for violating probation conditions of his 5-year suspended

sentence, and he received credit against the revoked sentence for that time. Had the District

Court credited Damon’s 5-year revoked sentence with the time he was incarcerated between

June 30 and November 2, 2005, Damon would have received double credit for those days.

Nothing in § 46-18-203(7)(b), MCA, entitles a defendant to additional credit against a

revoked sentence for time served relating solely to a separate offense for which the defendant

received a consecutive sentence credited with the same period of time served. We conclude

the District Court correctly determined that Damon’s revoked sentence should be credited

                                              6
only with the time he served in incarceration between November 30, 2005, and March 7,

2006.

¶15     We hold that the District Court did not err in crediting Damon’s sentence with only a

portion of the time he served while incarcerated prior to the revocation of his sentence.

¶16 2. Did the District Court err in failing to sufficiently state in its written
disposition order its reasons for granting or denying credit against Damon’s sentence
for the time which elapsed prior to the revocation of his sentence?

¶17     As stated above, § 46-18-203(7)(b), MCA, provides that

        [i]f 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. The judge shall
        state the reasons for the judge’s determination in the order. Credit must be
        allowed for time served in a detention center or home arrest time already
        served.

Damon asserts that this provision requires a sentencing court to state in its written disposition

order its reasons for allowing or rejecting credit for both “street time” and time served

incarcerated. On that basis, he argues the District Court erred in its disposition order by not

expressly stating why it did not credit Damon’s revoked sentence for the time he served in

the Detention Center between June 30 and November 2, 2005.

¶18     In its disposition order the District Court stated Damon was to receive credit for 98

days time served, representing the time he was incarcerated in the Detention Center between

November 30, 2005, and March 7, 2006, as a result of his arrest on probation violations. The

court treated the remaining elapsed time, including the time Damon was incarcerated for his

arrest on separate charges unrelated to his suspended sentence, as “street time” and denied

credit against Damon’s revoked sentence for such street time due to his early violation of his
                                                7
probation conditions. We conclude that the District Court sufficiently stated its reasons for

allowing and rejecting credit against Damon’s revoked sentence for the time which elapsed

prior to the revocation.

¶19    We hold the District Court did not err by failing to sufficiently state in its written

disposition order its reasons for granting or denying credit against Damon’s sentence for the

time which elapsed prior to the revocation of his sentence.

¶20    Affirmed.

                                                  /S/ KARLA M. GRAY


We concur:


/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE




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