                                                                                               10/25/2016



                                           DA 15-0630                                      Case Number: DA 15-0630



                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2016 MT 276N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

JOSHUA JOSEPH JOHNSON,

              Defendant and Appellant.



APPEAL FROM:            District Court of the First Judicial District,
                        In and For the County of Lewis and Clark, Cause No. BDC 2014-197
                        Honorable Jeffrey M. Sherlock, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Chad M. Wright, Chief Appellate Defender, Alexander H. Pyle, Assistant
                        Appellate Defender, Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
                        Attorney General, Helena, Montana

                        Leo Gallagher, Lewis and Clark County Attorney, Jeff Sealey, Deputy
                        County Attorney, Helena, Montana



                                                    Submitted on Briefs: September 28, 2016

                                                               Decided: October 25, 2016


Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat 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     In April 2014, Johnson was charged with felony driving under the influence of

alcohol or drugs (DUI). He posted bond and was released three days later subject to

certain conditions and restrictions. In July 2014, the First Judicial District Court revoked

bond and issued a warrant for Johnson’s arrest based upon his failure to comply with the

terms of his earlier release. In August 2014, Johnson and his counsel appeared before the

court for an omnibus hearing. In October 2014, Johnson changed his plea and entered a

guilty plea to felony DUI. Sentencing was set for December 11, 2014. Inexplicably, the

arrest warrant issued in July 2014 was not served on Johnson until November 5, 2014.

Following service of the warrant, Johnson was incarcerated in the Lewis and Clark

County Jail from November 5 through November 14, 2014.               A bond hearing was

conducted and the court set Johnson’s bond at $10,000 but subsequently released Johnson

on his own recognizance (OR release).

¶3     On December 3, 2014, Johnson was stopped by the Montana Highway Patrol for

speeding. The officer discovered that Johnson was driving without a driver’s license and

insurance, and possessed alcohol. On December 9, 2014, the State moved to revoke


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Johnson’s OR release and an arrest warrant was issued. Johnson failed to appear at his

December 11, 2014 sentencing hearing. At the time of the hearing, the December 9

warrant for Johnson’s arrest had not yet been served.

¶4    On December 30, 2014, the District Court was notified that Johnson was

incarcerated in Kent, Washington; consequently, his Montana bond was revoked. In

April 2015, the District Court received notice that the Helena Police Department had

faxed the December warrant to the applicable county jail in Washington and the county

jail had served it on Johnson on or around April 15, 2015. Johnson was jailed in

Washington from December 21, 2014, until June 29, 2015, when he returned to Montana

and was immediately incarcerated.

¶5    On July 2, 2015, the District Court set Johnson’s bond at $100,000. Sentencing

was held on August 6, 2015, and Johnson was sentenced to the Department of

Corrections for 13 months, followed by a three-year suspended commitment.             The

District Court granted Johnson 50 days credit for the amount of time he spent in the

Lewis and Clark County Jail. Johnson argued at sentencing that under § 46-18-403,

MCA (credit for incarceration prior to conviction), he was entitled to credit for 122 days

of the 193 days he spent in the Washington jails. He claimed that 71 days were spent

serving time for his Washington offenses and 122 days were spent serving time for the

Washington offenses while also being held under the Montana warrant. The District

Court denied his request for additional credit and Johnson appeals.

¶6    Section 46-18-403(1), MCA, provides:



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       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 . . . .

Additionally, we have interpreted § 46-18-403, MCA, to allow credit 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.3d

1043 (emphasis in original).

¶7     The record indicates that Johnson was incarcerated in Washington from December

21, 2014, until June 29, 2015. As noted above, the Washington county officers did not

serve the Montana warrant on Johnson until April 15, 2015. Therefore, the time spent in

the Washington county jails from December 21, 2014, through April 15, 2015, could not

have been related to Johnson’s Montana warrant and he is not entitled to credit for these

days. However, under § 46-18-403, MCA, and as conceded by the State, Johnson is

entitled to credit for the 20 days served in the Stevens County Jail in Washington from

April 15, 2015, until May 5, 2015. Johnson does not seek credit for time spent in the

Stevens County Jail between May 5, 2015, and June 29, 2015, as he acknowledges that

this time was served on his Washington offenses exclusively.

¶8     As Johnson was entitled to credit for the 50 days he served in the Lewis and Clark

County jail and for 20 days of the time he served in the Stevens County, Washington jail,

we affirm the District Court’s ruling but remand for an amended judgment to include 20

additional days credit toward Johnson’s sentence.

¶9     We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for noncitable memorandum opinions. In

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the opinion 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.

¶10   Affirm and remand.


                                                /S/ MICHAEL E WHEAT

We Concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ LAURIE McKINNON




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