               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 42367

GERALD B. CUMMINGS, JR.,                        )      2015 Unpublished Opinion No. 328
                                                )
       Petitioner-Appellant,                    )      Filed: January 29, 2015
                                                )
v.                                              )      Stephen W. Kenyon, Clerk
                                                )
IDAHO COMMISSION OF PARDONS &                   )      THIS IS AN UNPUBLISHED
PAROLE; DAVID ATKINSON; and                     )      OPINION AND SHALL NOT
OLIVIA CRAVEN,                                  )      BE CITED AS AUTHORITY
                                                )
       Respondents.                             )
                                                )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Daniel C. Hurlbutt, District Judge.

       Judgment denying petition for writ of habeas corpus, affirmed.

       Gerald B. Cummings, Jr., Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Mark A. Kubinski, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GRATTON, Judge
       In this habeas corpus case, Gerald B. Cummings, Jr., claims that defendants 1 have
miscalculated the sentence completion date for his sentences.
                                               I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Cummings was sentenced for possession of a controlled substance on June 8, 2009. He
received a unified seven-year sentence with a one and one-half-year determinate term and
received credit for ninety-five days of prejudgment incarceration. He was released on parole on
October 1, 2010, having completed the determinate term of his sentence. While on parole,
Cummings was charged with a second offense of possession of a controlled substance.



1
       We hereinafter refer to the named defendants, collectively, as the Idaho Department of
Correction (IDOC).

                                               1
Cummings was convicted of the second offense on December 20, 2012, and sentenced to a
unified term of four years with one year determinate, which was ordered to run consecutively to
his sentence for his original offense. He received credit for eighty-one days of prejudgment
incarceration. As a result of the second conviction, Cummings was found in violation of his
parole, which was revoked, and he did not receive credit for the 731 days spent on parole in the
original case. 2 His full-term release date (FTRD) was calculated as December 14, 2021, to
reflect his sentence for the second offense, credit for time served, and for the 731 days forfeited
on parole.
       Cummings filed a pro se petition for a writ of habeas corpus, arguing that he was
deprived of due process because the IDOC miscalculated his FTRD upon his conviction of the
second offense. Cummings argued that his FTRD should be in March 2018 in the first case and
March 2021 for the second case, rather than December 14, 2021. The State filed a response and
motion for summary judgment, arguing that because Cummings’ sentences were to be served
consecutively, his sentence was appropriately calculated as December 14, 2021. The State noted
that since Cummings was sentenced to a one-year determinate term and received eighty-one
days’ credit for time served, his determinate term was extended by approximately nine months.
The district court granted the State’s motion for summary judgment, finding there to be no
genuine issue of material fact, and concluding that Cummings’ sentence had not been
miscalculated. Cummings timely appeals.
                                                II.
                                           ANALYSIS
       A petition for a writ of habeas corpus, being a pleading analogous to a complaint, is
governed by the Idaho Rules of Civil Procedure. Freeman v. State Dep’t of Corr., 115 Idaho 78,
79, 764 P.2d 445, 446 (Ct. App. 1988). Bound by the same standard of review as the trial court,
we examine the record to determine whether there remains any genuine issue of material fact,
and absent such issues, whether the moving party was entitled to judgment as a matter of law.
I.R.C.P. 56(c); Martin v. Spalding, 133 Idaho 469, 471, 988 P.2d 695, 697 (Ct. App. 1998). We
liberally construe the facts contained in the record and all reasonable inferences based thereupon
in favor of the opposing party. See Martin, 133 Idaho at 471, 988 P.2d at 697. Unless



2
       Cummings does not challenge the forfeiture of 731 days he spent on parole.

                                                2
controverted, however, the allegations contained in a habeas corpus petition must be treated as
true when considering whether that writ will issue. Gawron v. Roberts, 113 Idaho 330, 332, 743
P.2d 983, 985 (Ct. App. 1987).
         Under Idaho law, a sentence of imprisonment for a felony generally consists of two parts,
the fixed term (also referred to as the determinate term or minimum term), which is the minimum
period that a defendant must serve before becoming eligible for parole, and a subsequent
indeterminate term, during which the defendant may be released on parole. See Idaho Code
§ 19-2513. A prisoner must receive credit on a sentence for any period of incarceration prior to
the entry of judgment if such incarceration was for the offense for which the judgment was
entered. I.C. § 18-309. This credit is given by subtracting the number of days’ credit from the
end of the fixed term of the prisoner’s sentence, or from the final release date if no fixed term
applies to the sentence. Fullmer v. Collard, 143 Idaho 171, 172, 139 P.3d 773, 774 (Ct. App.
2006).
         When the defendant has committed multiple offenses, a sentencing court may order that
the sentences will be served concurrently or consecutively. I.C. § 18-308. When consecutive
sentences have been imposed, a prisoner first serves the determinate term of the first sentence,
then the determinate term of the second sentence, followed by the consecutive indeterminate
portions of each sentence, during which the prisoner may become eligible for parole at any time.
Doan v. State, 132 Idaho 796, 799, 979 P.2d 1154, 1157 (1999).
         Cummings argues that he already served the approximately nine months that his overall
sentence has been extended by, effectively creating a double jeopardy situation. Cummings also
argues that the IDOC did not have authority to add time to the end of his sentence for his first
offense. 3 In essence, Cummings fails to understand the impact of his sentences being ordered to
be served consecutively. For his first possession offense, Cummings initially served one and
one-half years--his determinate term--receiving credit for ninety-five days of prejudgment
incarceration. Soon thereafter, Cummings was released on parole on October 1, 2010. At that
time, he had approximately five and one-half years of indeterminate time to be served on his first

3
        On appeal, Cummings further argues that he has been denied access to IDOC policy
pertaining to sentence calculation. However, Cummings did not raise this argument below and
therefore, we will not consider it for the first time on appeal. State v. Fodge, 121 Idaho 192, 195,
824 P.2d 123, 126 (1992).


                                                 3
sentence if his parole were to be revoked. His parole was revoked following his conviction for
the second possession offense. For his second possession offense, Cummings was ordered to
serve a one-year determinate term followed by a three-year indeterminate term, which was
ordered to run consecutively to his original sentence.        Because his parole was revoked,
Cummings also had five and one-half years remaining on his sentence for his original possession
offense. After subtracting eighty-one days’ credit for time served, Cummings needed to serve
approximately nine more months to satisfy the determinate portion of his sentence for his second
offense.
       Because Idaho law requires the determinate portions of consecutive sentences to be
served before the relative indeterminate portions, Cummings was required to satisfy the one-year
determinate portion of his sentence for his second offense before serving the five and one-half
years remaining on his original offense, followed by the indeterminate term of this second
sentence. The 731 days that Cummings spent on parole for his first offense were also added
(reflecting the forfeiture of that time on parole). Calculating Cummings’ sentence for his second
offense, together with the indeterminate term of his first offense (including the revocation of the
time spent on parole), effectively extended his FTRD to December 14, 2021. Cummings has not
been subjected to double jeopardy, but rather his sentences have been separately ordered and
appropriately calculated to run consecutively.        The IDOC correctly calculated Cummings’
sentences, with the determinate portion of each sentence to be retired first. There is no genuine
issue of material fact in dispute as to the calculation of Cummings’ sentences. Accordingly, the
district court did not err in granting summary judgment.
                                               III.
                                        CONCLUSION
       Cummings failed to demonstrate that the district court erred in granting the State’s
motion for summary judgment of his petition for writ of habeas corpus. Therefore, the district
court’s judgment denying Cummings’ petition for habeas corpus is affirmed.
       Chief Judge MELANSON and Judge GUTIERREZ CONCUR.




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