                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 41662

STATE OF IDAHO,                                   )      2015 Unpublished Opinion No. 367
                                                  )
       Plaintiff-Respondent,                      )      Filed: February 23, 2015
                                                  )
v.                                                )      Stephen W. Kenyon, Clerk
                                                  )
SHANE THOMAS PELLETIER,                           )      THIS IS AN UNPUBLISHED
                                                  )      OPINION AND SHALL NOT
       Defendant-Appellant.                       )      BE CITED AS AUTHORITY
                                                  )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. John T. Mitchell, District Judge.

       Order denying motion for credit for time served, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GRATTON, Judge
       Shane Thomas Pelletier appeals from the district court’s order denying his motion for
credit for time served. He argues that he is owed additional credit for time served while in
Montana. We affirm.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       In October 2007, Pelletier pled guilty to possession of a controlled substance. Idaho
Code § 37-2732(c). The district court withheld judgment and placed Pelletier on probation for
four years. Pelletier’s probation supervision was transferred to Montana pursuant to an interstate
compact. In March 2009, while in Montana, Pelletier was twice arrested for driving under the
influence (DUI). As a consequence, he was extradited to Idaho where the district court revoked
his probation, imposed a unified five-year sentence with a two-year determinate term, and
retained jurisdiction. Following the period of retained jurisdiction, the district court again placed



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Pelletier on probation for four years. Pelletier’s probation supervision was again transferred to
Montana.
       In April 2010, Pelletier was charged with a third DUI in Montana. Because the Montana
charge violated Pelletier’s probation in the Idaho case, a bench warrant was issued by the district
court but Pelletier was not served with the warrant until October 2010. Pelletier admitted to
violating his probation, and the district court again retained jurisdiction. Following the second
period of retained jurisdiction, the district court placed Pelletier on probation for four and one-
half years, and his probation was again transferred to Montana.
       In August 2011, the district court issued another bench warrant for Pelletier’s arrest after
Pelletier failed to appear for a probation review hearing. Pelletier was served with the warrant in
October 2011.    Meanwhile, the district court received a report that Pelletier had allegedly
violated his probation on numerous occasions, to which Pelletier later admitted. As a result, the
district court revoked his probation and imposed the underlying sentence, giving him 442 days’
credit for time served while in Idaho. Pelletier filed a Rule 35 motion for reduction of his
sentence. At the hearing on the motion, Pelletier also argued that he should be awarded credit
for time served while in Montana. The court denied the motion.
       Over one year later, Pelletier filed a pro se motion for credit for time served, again
requesting credit on his Idaho sentence for time served in Montana on various dates from 2008
through 2011. In support of his motion, Pelletier attached an inmate record produced by the
Missoula County Detention Facility showing his various incarceration periods from June 2007 to
August 2011. The district court denied Pelletier’s motion. Pelletier timely appeals.
                                                II.
                                           ANALYSIS
       Pelletier argues that the district court erred in denying his motion for credit for time
served. Specifically, he asserts that the district court’s factual findings concerning the credit
were clearly erroneous. Alternatively, he asserts that even if the court’s factual findings were not
clearly erroneous, it erred when it denied the motion on erroneous legal bases. The question of
whether a sentencing court has properly awarded credit for time served on the facts of a
particular case is a question of law, which is subject to free review by this Court. State v.
Vasquez, 142 Idaho 67, 68, 122 P.3d 1167, 1168 (Ct. App. 2005); State v. Horn, 124 Idaho 849,
850, 865 P.2d 176, 177 (Ct. App. 1993). We defer to the district court’s findings of fact, unless


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those findings are unsupported by substantial and competent evidence in the record and are
therefore clearly erroneous. State v. Covert, 143 Idaho 169, 170, 139 P.3d 771, 772 (Ct. App.
2006).
         Generally, I.C. § 19-2603 governs credit for time served as it relates to the revocation of
probation. Under that provision, when a probationer has been arrested for a probation violation,
“the time of the defendant’s sentence shall count from the date of service of [the] bench
warrant.” Id. Additionally, Idaho case law requires that a probationer likewise receive credit for
time served when he or she has been held on the functional equivalent of a bench warrant. State
v. Kesling, 155 Idaho 673, 678, 315 P.3d 861, 866 (Ct. App. 2013); see Covert, 143 Idaho at 170,
139 P.3d at 772 (holding that a probationer held on an agent’s warrant after being arrested for a
new offense was entitled to credit for time served from the date of arrest, not the date of service
of the bench warrant, as the agent’s warrant had the same effect as a bench warrant in preventing
him from being able to bond out on the new charge).
         In denying Pelletier’s motion for credit for time served while he was in custody in
Montana, the district court found:
         There is nothing authenticating the [Missoula County Detention Facility’s
         booking history] printout. But Pelletier’s bigger problem is the attachment
         doesn’t state the reason why Pelletier was in custody in Montana on those dates.
         The printout does not distinguish whether Pelletier was in custody on those dates
         under a warrant issued in this Idaho case, or whether he was being held solely on
         Montana matters.

Pelletier contends that because he provided a sworn statement asserting that he was in custody in
Montana for violating the terms of his Idaho probation, and because his statement was
uncontradicted, it must be accepted as true. Accordingly, Pelletier argues that the district court’s
findings of fact are clearly erroneous.
         The facts of this case are similar to those in Kesling. Pursuant to an interstate compact
agreement, Kesling’s probation supervision was transferred to Florida. While in Florida, Kesling
committed several new felonies which triggered the violation of his Idaho probation, and bench
warrants were issued by the Idaho district court. However, the bench warrants were not served
on Kesling until after he was extradited back to Idaho upon completion of his sentence for the
crimes he committed in Florida. At sentencing, Kesling requested credit for time served during
his incarceration in Florida. In support of his request, Kesling pointed to notations within an



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inmate record produced by the Florida Department of Corrections relating to communications
that Florida authorities received from Idaho authorities.         Kesling’s evidence consisted of
ambiguous notations in his Florida prison records, which did not reflect either the contents of the
communications between the Idaho and Florida officials or that he was held in Florida beyond
the end of his Florida sentences. Within the communications, there were two separate notations.
We described the notations as follows: “One says the authority is ‘ADA CO SO-ID,’ and the
other states an Idaho telephone number. Both show Kesling’s Ada County case numbers as the
charges, each followed by ‘VOP,’ which we presume is an abbreviation for ‘violation of
probation.’” Even with references to Kesling’s Ada County case numbers, we concluded the
record contained no evidence that Kesling was held in Florida on the functional equivalent of an
Idaho bench warrant until after his Florida cases were fully served. On this basis, we held that
Kesling was not entitled to such credit.
       Similarly, in this case, the record contains no evidence supporting Pelletier’s assertions
that he was held in Montana on the functional equivalent of an Idaho bench warrant. In denying
his motion for credit for time served, the district court set forth a detailed analysis of the various
times for which Pelletier argues he is entitled to additional credit, and demonstrated how his
claim for credit for such dates was belied by the record. We agree with the district court. For the
times Pelletier argues he is entitled to additional credit, the Missoula County Detention Facility
booking history report provides the reason for release as “Release per P/O” and lists the billing
agency as “Adult Prob & Parole.” Pelletier interprets these notations to mean that he was held in
custody in Montana by permission of his probation officer for his Idaho charge.                While
Pelletier’s evidence identifies that he was released from custody per his probation officer, the
evidence does not demonstrate that he was placed or held in custody at the direction of an Idaho
probation officer for even a single day (i.e., on an agent’s warrant).             Further, Pelletier
acknowledges that he received multiple charges while in Montana (including multiple DUIs and
driving with a suspended license), but has failed to provide sufficient evidence demonstrating
that the time he spent in Montana custody was related to his Idaho charge and not to his Montana
charges. Absent evidence showing action taken by the state of Idaho, or its agents holding
Pelletier in custody in Montana, we cannot hold that Pelletier was held on the functional
equivalent of an Idaho bench warrant. The district court did not err in finding that the record,
including that submitted by Pelletier, failed to establish time spent in Montana was actually


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attributable to the Idaho case. Pelletier has failed to show that the district court’s findings of fact
are clearly erroneous.
       Pelletier further argues that the district court denied his motion on erroneous legal bases.
In support of this argument, Pelletier asserts that the district court erred in three different
respects. First, Pelletier asserts that the district court erred in only analyzing whether there was
an outstanding bench warrant for Pelletier’s arrest, and failed to award credit where there was a
functional equivalent of a bench warrant. In requesting credit for time served in Montana,
Pelletier must not only prove that he served time, but also that the time served related to his
Idaho case. The district court set forth, in detail, an analysis of Pelletier’s claim for additional
credit and ultimately rejected Pelletier’s argument. As discussed above, Pelletier has failed to
demonstrate that he was held in Montana on the functional equivalent of a bench warrant. Thus,
Pelletier’s claim is unsubstantiated by the evidence, and the district court did not err in awarding
credit consistent with the service of bench warrants on Pelletier.
       Second, Pelletier asserts that the district court erred in rejecting his sworn statement when
it concluded that he “has failed to provide any proof to support” his motion. Contrary to
Pelletier’s assertion, the district court did not hold that Pelletier’s affidavit was not evidence, but
held that it was insufficient to support his claim. Because Pelletier pointed to no evidence that
Montana held him at the direction of Idaho officials, the court rejected Pelletier’s bare assertion
that he spent time in Montana for probation violations in his Idaho case. Pelletier did not point
to a warrant or communication that could be the functional equivalent relevant to a probation
violation. Rather, he made several bald assertions referencing his time incarcerated in Montana
without record proof that he was serving time for his Idaho offense. Even assuming Pelletier’s
motion is an affidavit, and taking as evidence his attached documents, there remains a lack of
evidence to support his claim. The district court properly rejected Pelletier’s motion as failing to
present adequate proof.
       Lastly, Pelletier asserts that the district court erred in failing to consider the Missoula
County Detention Facility’s inmate record on the basis that “there is nothing authenticating the
printout.” Although the court mentioned that the inmate record lacked authentication, the court
did not base its decision on rejecting the inmate record or giving it less weight. Irrespective of
whether authentication is a valid evidentiary objection relating to his motion, the court did not




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base its decision on the lack of authentication. The district court did not rely on erroneous legal
bases when it denied Pelletier’s motion for credit for time served.
                                                III.
                                         CONCLUSION
       The district court did not err when it denied Pelletier’s request for additional credit for
time served in Montana. Accordingly, the district court’s order denying Pelletier’s motion for
credit for time served is affirmed.
       Judge LANSING and Judge GUTIERREZ CONCUR.




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