                                                                                      February 13 2008


                                         DA 06-0191

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2008 MT 50



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

KELVIN KEITH ERICKSON,

              Defendant and Appellant.


APPEAL FROM:          District Court of the Seventh Judicial District,
                      In and For the County of Dawson, Cause No. DC 2001-055
                      and DC 2002-048
                      Honorable Richard A. Simonton, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Chad Wright, Appellate Defender, Helena, Montana

               For Appellee:

                      Hon. Mike McGrath, Montana Attorney General, Jennifer Anders,
                      Assistant Attorney General, Helena, Montana

                      Scott Herring, Dawson County Attorney, Glendive, Montana



                                                 Submitted on Briefs: November 22, 2006

                                                            Decided: February 13, 2008


Filed:

                      __________________________________________
                                        Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1        Kelvin Erickson appeals the amended judgment of the District Court for the

Seventh Judicial District, Dawson County, crediting him with 267 days time served in jail

for Cause No. DC 01-055 and 457 days time served in jail for Cause No. DC 02-048. We

affirm.

¶2        We address the following issue on appeal: Whether the District Court erred in

determining credit for time served.

                            Factual and Procedural Background

¶3        The facts in this case are more fully set forth in State v. Erickson, 2005 MT 276,

329 Mont. 192, 124 P.3d 119 (Erickson I). Erickson was arrested in Dawson County on

November 1, 2001, and placed in jail. On December 4, 2001, the State charged Erickson

with criminal possession of dangerous drugs, a felony, in violation of § 45-9-102(5),

MCA (DC 01-055). Bail was initially set at $50,000.00. Erickson was unable to post

bail, thus he remained incarcerated until his bail amount was reduced. He was able to

post a commercial surety bond in the amount of $5,000.00 on July 25, 2002, and he was

released.

¶4        On September 19, 2002, while out on bond, Erickson and two other individuals

were arrested for manufacturing methamphetamine (meth). Erickson was charged with

operating an unlawful clandestine lab, a felony, in violation of § 45-9-132(1)(a), MCA

(DC 02-048).       His bail was set at $250,000.00, and he remained incarcerated until

sentencing.




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¶5     On the morning of the scheduled trial in DC 01-055, Erickson entered into a plea

agreement with the State wherein he agreed to plead guilty to the possession charge in

DC 01-055, and to enter an Alford plea on the clandestine lab charge in DC 02-048. In

exchange, the State agreed to recommend a five-year suspended sentence in DC 01-055,

and to make a binding recommendation for a concurrent ten-year sentence with five years

suspended in DC 02-048. The agreement also stated that the sentences would

       run concurrently and [Erickson] will be given credit for time served
       awaiting trial in DC 02-048, i.e., credit for time served from the date of his
       arrest on the unlawful operation of clandestine lab charge to the time of
       sentencing.

At the change of plea hearing on September 18, 2003, the District Court accepted

Erikson’s guilty pleas.

¶6     On December 19, 2003, the District Court held a combined sentencing hearing. At

this hearing, the court sentenced Erickson to five years in Montana State Prison (MSP) in

DC 01-055 with all time suspended and ten years in MSP in DC 02-048 with five years

suspended. The court also ordered that the two sentences were to run concurrently. In its

December 23, 2003 Judgment and Order Suspending Sentence, the District Court ordered

that Erickson would be credited with 289 days served in DC 01-055 and 430 days served

in DC 02-048. Erickson appealed arguing, among other things, that he must be given

credit in DC 01-055 for all of the time he served in jail.

¶7     On November 1, 2005, we issued our Opinion in Erickson I wherein we reversed

and remanded for a determination of whether Erickson’s bond in DC 01-055 was revoked

and for further inquiry into the question of credit for time served. Erickson I, ¶ 39. We



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stated in Erickson I that if Erickson’s bond in DC 01-055 was revoked on September 19,

2002, and he was surrendered to the Sheriff, he was then incarcerated awaiting trial on

the charges in DC 01-055 as well as those in DC 02-048. In such case, his incarceration

was directly related to the charges in DC 01-055, hence § 46-18-403(1), MCA, would

require that he receive credit for the time between his arrest and when judgment was

entered on that charge. However, if his bond in DC 01-055 was never revoked, then he

was not incarcerated on that charge after his release on July 25, 2002, and he need not

receive credit against that charge for the time served after his arrest on September 19,

2002. Erickson I, ¶¶ 24-25.

¶8      The District Court held a hearing on the matter on January 5, 2006, and on January

26, 2006, the court issued an Order wherein it made the following findings:

               That on Case No. DC 01-055, that the Defendant’s Bail was not
        formally revoked on September 19, 2002, and therefore the Defendant shall
        not be given credit for time served in jail on Case No. DC 01-055 for days
        served in jail beginning September 19, 2002. The Court FURTHER
        FINDS that the Defendant was not surrendered by his Bondsman to the
        Dawson County Sheriff’s Department until after the Defendant was
        arrested on Case No. DC 02-048.

The court issued its Amended Judgment and Order Suspending Sentence the same day.

In this amended judgment, the court ordered that Erickson be given credit for time served

in custody in DC 01-055, from his arrest on November 1, 2001, to his release on bond on

July 25, 2002, for a total of 267 days; and in DC 02-048, from his arrest on

September 19, 2002, to the sentencing hearing on December 19, 2003, for a total of 457

days.




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¶9     Erickson appeals the District Court’s judgment arguing that he should also be

given credit in DC 01-055 for the 457 days he served in custody from September 19,

2002, when he contends his bond in that case was revoked, until his combined sentencing

hearing on December 19, 2003.

                                  Standard of Review

¶10    Trial judges are granted broad discretion to determine the appropriate punishment

for offenses. State v. Webb, 2005 MT 5, ¶ 8, 325 Mont. 317, ¶ 8, 106 P.3d 521, ¶ 8

(citing State v. Hembd, 254 Mont. 407, 411, 838 P.2d 412, 415 (1992)). On appeal we

will not review a sentence for mere inequity or disparity. Webb, ¶ 8. Instead, we will

only review a criminal sentence for its legality; that is, whether the sentence is within

statutory parameters. Webb, ¶ 8 (citing State v. Heath, 2004 MT 58, ¶ 8, 320 Mont. 211,

¶ 8, 89 P.3d 947, ¶ 8). Moreover, a trial court's statutory interpretation is a question of

law, which we review to determine whether it is correct. Webb, ¶ 8.

                                       Discussion

¶11    Whether the District Court erred in determining credit for time served.

¶12    Erickson argues on appeal that he should be given full credit for both the 267 days

he spent in custody in DC 01-055 prior to being released on bail and the 457 days he

spent in custody after he claims his bail in DC 01-055 was revoked. In other words,

Erickson maintains that he should receive 724 days credit in DC 01-055 as well as the

457 days credit he received in DC 02-048.

¶13    Section 46-18-403(1), MCA (2001), provides:




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              Credit for incarceration prior to conviction. (1) Any person
       incarcerated on a bailable offense and against whom a judgment of
       imprisonment is rendered must be allowed credit for each day of
       incarceration prior to or after conviction, except that the time allowed as a
       credit may not exceed the term of the prison sentence rendered.

In State v. Kime, 2002 MT 38, ¶ 15, 308 Mont. 341, ¶ 15, 43 P.3d 290, ¶ 15, overruled in

part on other grounds by State v. Eaton, 2004 MT 283, 323 Mont. 287, 99 P.3d 661, we

stated that

       the general purpose of § 46-18-403(1), MCA, is to eliminate the disparity
       of treatment between indigent and nonindigent defendants. In other words,
       credit for time served is given so as not to penalize indigent defendants who
       are unable to post bail and must remain in custody until they are sentenced
       when nonindigent defendants may secure their release and remain free
       during that time period.

However, we further stated in Kime that

       [t]hat purpose is not served by crediting a defendant’s sentence for time
       served where the defendant would not have been released from custody had
       he or she been able to post bail in any event as a result of being held on a
       sentence related to an earlier offense.

Kime, ¶ 15.

¶14    In the instant case, the State argues that our ruling in State v. Price, 2002 MT 150,

310 Mont. 320, 50 P.3d 530, should be extended to the facts in the case here to prevent

Erickson from receiving “what amounts to a double credit.” Price was charged with

Driving Under the Influence (DUI), a fourth or subsequent offense, and four

misdemeanors. He pled guilty to the misdemeanors prior to trial. He was convicted of

the DUI charge following a jury trial and sentenced to twelve months imprisonment for

that offense with four years probation. The district court sentenced Price to a total of

twelve days in jail on the misdemeanor offenses to run consecutively to the DUI


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sentence. Because Price had served eighteen days in jail awaiting trial, the court deemed

the misdemeanor jail sentences served, and credited the remaining six days of time served

to Price’s DUI sentence. Price, ¶ 1.

¶15    Price contended on appeal that the district court erroneously applied

§ 46-18-403(1), MCA. He argued that the district court was required to grant him full

credit for time served on each sentence imposed. In other words, according to Price, for

the eighteen days he remained in jail prior to trial, he should have received eighteen days

credit against his DUI sentence along with the time credited toward his misdemeanor

sentences. Price, ¶ 23.

¶16    In Price, we cited with favor the following statement made by the Hawaii

Supreme Court:

              “Once credit has been granted, no additional purpose is served by
       granting a second or ‘double credit’ against a later consecutive sentence.
       Courts in other jurisdictions having similar statutes agree that a defendant
       who receives consecutive sentences is entitled to presentence credit only
       once against the aggregate of the consecutive terms, while a defendant
       sentenced to concurrent terms in effect receives credit against each
       sentence.”

Price, ¶ 27 (quoting State v. Tauiliili, 29 P.3d 914, 918 (Haw. 2001)). And, we held in

Price that “§ 46-18-403(1), MCA, entitles defendants to credit for presentence

incarceration only once against the aggregate of all terms imposed when multiple

sentences are imposed consecutively.” Price, ¶ 28 (emphasis added).

¶17    In the case sub judice, the State would like us to analogize this case to Price and

hold that concurrent sentences should be treated the same as the consecutive sentences in

Price—i.e., that a defendant should be entitled to credit for presentence incarceration


                                            7
only once against the aggregate of all terms imposed. However, in making this argument,

the State failed to point out the last portion of the quotation in Price from the Hawaii

Supreme Court that “a defendant sentenced to concurrent terms in effect receives credit

against each sentence.” Price, ¶ 27 (emphasis added); Tauiliili, 29 P.3d at 918 (emphasis

added). While this statement is not explained further in Price, we are reluctant to extend

Price’s holding regarding consecutive sentences to the concurrent sentences in the instant

case given this statement. And, indeed, as demonstrated below, it is not necessary that

we do so here. In addition, we admonish counsel that when relying on cases to support

an argument, they take care not to overlook and omit portions of the case that could prove

contrary to their argument.

¶18    In Erickson I, we remanded to the District Court “for a determination of whether

Erickson’s bond on DC-01-055 was revoked [and] for calculation of and ordering of

credit against his sentences in conformity with” that opinion. Erickson I, ¶ 39. We stated

in Erickson I that “[w]hile the record on appeal includes a copy of the bond revocation, it

has never been established in the District Court that Erickson’s bond in DC-01-055 was

revoked.” Erickson I, ¶ 26. We further stated that

       [i]t is clear under the circumstances of this case that, if Erickson’s $5,000
       bond was revoked by his bondsman pursuant to § 46-9-401(3), MCA, on
       September 18, 2002, and he was surrendered to the Sheriff, he was then
       incarcerated awaiting trial on the charges in DC-01-055 as well as those in
       DC-02-048. His incarceration was, in such instance, directly related to the
       charges in DC-01-055, and § 46-18-403(1), MCA, would require that he
       receive credit for the time between his arrest and when judgment was
       entered on that charge.
               If the truth of the matter is that Erickson’s bond in DC-01-055 was
       never revoked, the District Court would be correct that he was not



                                            8
      incarcerated on that charge after his release on July 25, 2002, and he need
      not receive credit for such time served.

Erickson I, ¶¶ 24-25.

¶19   We made this determination based on our holding in Kime that “pursuant to

§ 46-18-403(1), MCA, a defendant’s sentence may be credited with the time he or she

was incarcerated only if that incarceration was directly related to the offense for which

the sentence is imposed.” Erickson I, ¶ 21 (quoting Kime, ¶ 16) (emphasis added). Kime

was arrested on November 26, 2000, on charges of felony theft, DUI and driving while

his license was suspended, and placed in the Gallatin County Detention Center. He did

not post bail, hence he remained incarcerated at the detention center. At the time of his

arrest, Kime was participating in a supervised release program as part of a prior sentence

for a felony assault conviction. The prior sentence committed Kime to the custody of the

Montana Department of Corrections (DOC) for a period of ten years with five years

suspended. On December 5, 2000, the DOC removed Kime from the supervised release

program and transferred him to MSP to serve the remainder of his sentence on the felony

assault conviction. Kime, ¶¶ 3-4.

¶20   On December 12, 2000, the State charged Kime by Information with felony theft,

second offense DUI and driving while his license was suspended. Kime pled guilty to the

charges pursuant to a plea agreement and he was sentenced on April 2, 2001.            At

sentencing, Kime requested that the court credit him with time served from the date of his

arrest on November 26, 2000, until the April 2, 2001 sentencing. However, the district




                                            9
court credited Kime with only the 20 days served between his arrest and December 5,

2000, when Kime was transported from the detention center to MSP. Kime, ¶ 5.

¶21   On appeal, the State pointed out in Kime that § 46-18-403(1), MCA, provides for

credit only for time a defendant is “incarcerated on a bailable offense” (emphasis added),

and that once Kime was transported to MSP, he was incarcerated on, and serving his

sentence for, his nonbailable prior felony conviction. Kime, ¶ 13. We agreed with the

State’s argument in Kime, that 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, and we so held. Kime, ¶¶ 13, 16.

¶22   In the instant case, the District Court stated the following at the January 5, 2006

sentencing hearing after remand:

      I do not believe that the bonding company in this case personally delivered
      the defendant to the Sheriff’s Office and that he was then arrested. The
      record reflects that there was a stop of a vehicle in which he was a
      passenger; that there was a search of the vehicle; drugs were found and
      arrests were made on September 18th [2002]. My belief is that after that
      arrest, the bonding agents came in and revoked the bail in the 01 charge.
              As the Supreme Court indicated in paragraph 25 [of Erickson I], if
      the truth of the matter is that Erickson’s bond in DC 01-055 was never
      revoked, the district the court [sic] would be correct that he was not
      incarcerated on that charge after his release on July 25, 2002, and he need
      not receive credit for such time served.
              It is the opinion of the court that he need not and should not be given
      credit for time served from September 18th [2002] because he was in
      custody from that date on the 02 charge of operating a clandestine lab.

And, in its January 26, 2006 Order, the court made the following findings:

             That on Case No. DC 01-055, that the Defendant’s Bail was not
      formally revoked on September 19, 2002, and therefore the Defendant shall
      not be given credit for time served in jail on Case No. DC 01-055 for days
      served in jail beginning September 19, 2002. The Court FURTHER


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       FINDS that the Defendant was not surrendered by his Bondsman to the
       Dawson County Sheriff’s Department until after the Defendant was
       arrested on Case No. DC 02-048. [Emphasis added.]

¶23    Consequently, we hold that the 467 days Erickson served following his arrest on

September 19, 2002, until his sentencing on December 19, 2003, was directly related to

the clandestine lab charge (DC 02-048) and only incidentally related to the possession

charge (DC 01-055). Hence, the District Court was correct in crediting Erickson with

467 days served in DC 02-048 and refusing to credit him a second time in DC 01-055 for

the 467 days he served awaiting trial on the charges in DC 02-048.

¶24    As the State points out in its brief on appeal, the District Court’s ruling was

consistent with Erickson’s plea agreement, which stated that Erickson “will be given

credit for time served awaiting trial in DC 02-048, i.e., credit for time served from the

date of his arrest on the unlawful operation of clandestine lab charge to the time of

sentencing.” Furthermore, at the January 5, 2006 sentencing hearing after remand, the

District Court specifically noted on the record that

       had it not been for the plea bargain agreement Mr. Erickson would have
       received a substantially harsher sentence than what was actually imposed.
              ....
              Looking back at this, I guess I wish I had not followed the plea
       agreement and imposed something considerably more stringent on this
       defendant.

To impose a statutory duty on the sentencing court to apply an additional 457 days credit

in DC 01-055 in addition to the 457 days credit for time served in DC 02-048 not only

undermines the plea agreement, but results in a substantially different sentence than what

was contemplated by the District Court.



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¶25    Accordingly, we hold that the District Court did not err in determining credit for

time served in this case.

¶26    Affirmed.


                                                      /S/ JAMES C. NELSON



We Concur:

/S/ KARLA M. GRAY
/S/ BRIAN MORRIS
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE




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