 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-474%20Opinion.htm




                     IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                               No. 00-474

                                                             2000 MT 294

                                                    OPINION AND ORDER

___________________________________

JAMIE S. CHANDLER,

Petitioner,

MIKE MAHONEY, Warden, Montana State Prison,

Respondent.

___________________________________

The Petitioner, Jamie S. Chandler, petitioned for a writ of habeus corpus pursuant to §§ 46-
22-101 through -307, MCA. Chandler contends that he is being held illegally in violation
of § 46-18-401(5), MCA (1993), which required that his sentence be merged at the time of
his parole on April 10, 1998.

                                                          BACKGROUND

Chandler was originally sentenced to concurrent terms of five and ten years for seven
counts of felony theft in May 1994. Chandler escaped from prison on October 14, 1994,
and was sentenced to a consecutive term of two years for felony escape on October 10,
1995. On April 10, 1998, Chandler was paroled. The parole was to remain in force until
February 5, 2003, with the prison portion of the sentence to be discharged September 7,
2000.

In his initial petition, Chandler contended that pursuant to § 46-18-401(5), MCA (1993),
his consecutive sentence for escape should have merged when he was paroled for the
underlying offenses on April 10, 1998. Therefore, he had successfully discharged his

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-474%20Opinion.htm (1 of 5)3/30/2007 2:53:42 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-474%20Opinion.htm


sentence and was eligible for release on April 13, 2000. The statute on which Chandler
relied provided as follows:

        (5) Except as provided in this subsection, whenever a prisoner is sentenced for an
        offense committed while he was imprisoned in the state prison or while he was
        released on parole or under the supervised release program, the new sentence runs
        consecutively with the remainder of the original sentence. The prisoner starts
        serving the new sentence when the original sentence has expired or when he is
        released on parole under Chapter 23, part 2 of this title in regard to the original
        sentence, whichever is sooner. In the latter case, the sentences run concurrently from
        the time of his release on parole.


§ 46-18-401(5), MCA (1993).

In response to Chandler's petition, the State relied on State v. Pendergrass (1997), 281
Mont. 129, 932 P.2d 1056. The State further argued that even if Chandler's sentences
merged when he was paroled, those sentences reverted to consecutive sentences when the
Board revoked Chandler's parole. In Pendergrass, we held that sentences merge only if the
sentencing court does not specify whether the sentences are to run concurrently or
consecutively. Pendergrass, 281 Mont. at 131, 932 P.2d at 1057. Because the sentencing
court in Pendergrass specified that the sentence was to run consecutively, we determined
that the § 46-18-401(5), MCA (1993) merger provision did not apply.

By order dated August 29, 2000, we held that subparagraph (5) of § 46-8-401, MCA
(1993), had been repealed at the time his sentence for escape was imposed and that it was,
therefore, inapplicable to him. Chandler then filed a document with this Court entitled
"Petition for Review" which we deem a petition for rehearing pursuant to Rule 34, M.R.
Civ.P.

In his petition for rehearing Chandler contended that, in dismissing his original petition,
we overlooked State v. Finley (1996), 276 Mont. 126, 147, 915 P.2d 208, 22, in which we
noted that "the law in effect at the time of the commission of the crime controls as to the
possible sentence . . . ." Chandler's petition for rehearing, however, did not indicate the
date of his escape. In an order dated September 26, 2000, we requested that the State
respond to Chandler's petition for rehearing. We requested that the State indicate the date
on which Chandler escaped from prison and, if that date was prior to the April 12, 1995
date on which the legislature repealed § 46-18-401(5), MCA (1993), respond to Chandler's

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-474%20Opinion.htm (2 of 5)3/30/2007 2:53:42 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-474%20Opinion.htm


contention that the law in effect at the time of his offense applied to his sentence.

The State's reply verifies that Chandler escaped on October 14, 1994. Since that date
precedes April 12, 1995, the State also responded to Chandler's argument that the law in
effect at the time he committed the offense of escape applies to his sentence. The State
apparently concedes that the applicable law in sentencing Chandler was the law in effect at
the time Chandler escaped. The State, however, suggests that Finley is not dispositive.
Rather, the State would have this Court analyze the repeal of § 46-18-401(5), MCA
(1993), as ex post facto legislation.

                                                             DISCUSSION

We first determine whether § 46-18-401(5), MCA (1993), is applicable to Chandler's
sentence. Following careful analysis of the plain language of the statute, we conclude that
the merger provision in subparagraph (5) applied and that Chandler's sentence for escape
ran concurrently with his underlying sentence once he was paroled.

Subparagraph (5) of § 46-18-401, MCA (1993), was repealed by the 1995 Legislature. The
repeal took effect April 12, 1995. Consequently, when Chandler escaped from prison on
October 14, 1994, the merger provision contained in subparagraph (5) remained in effect.
Therefore, Chandler's sentence for escape merged with the underlying sentence upon his
parole.

This conclusion is inconsistent with our holding in Pendergrass, where we denied
Pendergrass's original petition for habeas corpus because the sentencing judge specified
that his underlying and subsequent sentences were to run consecutively. Pendergrass, 281
Mont. at 130-31, 932 P.2d at 1057. However, we now conclude that we misinterpreted §
46-18-401, MCA (1993), in deciding Pendergrass.

The introductory phrase "[u]nless the judge otherwise orders" which appears in § 46-18-
401(1), MCA (1993), does not apply to subparagraph (5). Upon careful reading of the
entire statute, it appears that the caveat contained in subparagraph (1) applies only to the
following subparagraphs (a) and (b). It also appears that subparagraphs (2), (3), (4), and
(5) operate independently of (1). Moreover, subparagraph (5) contains the language "[e]
xcept as provided in this subsection" which expressly negates application of subparagraph
(1). Therefore, the merger provisions of subparagraph (5) remained operative even if the
sentencing judge specifically ordered consecutive sentences. Thus, pursuant to the


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-474%20Opinion.htm (3 of 5)3/30/2007 2:53:42 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-474%20Opinion.htm


provisions of § 46-18-401(5), MCA (1993), when an inmate received a sentence for a
crime committed while in prison, on parole, or under supervised release, the sentences
automatically ran consecutively. When that inmate was paroled, however, the sentences
began to run concurrently. Accordingly, we now hold that our application of subparagraph
(1) to the merger provisions of subparagraph (5) in the order preceding the Pendergrass
decision was incorrect. To the extent that Pendergrass held otherwise, it is reversed.

We also conclude that based on our decision in Finley, § 46-18-401(5), MCA (1993),
applies to Chandler's sentence for the offense of escape. The facts now before us are
similar to the facts in Finley. See Finley, 276 Mont. at 147-48, 915 P.2d at 221-22. Finley
committed an offense on August 20, 1989. At that time, § 46-18-404, MCA did not grant
the District Court the authority to defer determination of Finley's dangerous or non-
dangerous offender status. In 1989, the legislature amended § 46-18-404, MCA, to give
district courts the discretion to defer determination of dangerous or nondangerous offender
status. The amendment, however, did not take effect until October 1, 1989. Accordingly,
pursuant to the version of § 46-18-404, MCA, in effect when Finley committed his crimes,
the District Court had no authority to defer determination of Finley's status. Therefore, we
held that the District Court erred in deferring its determination of Finley's status as a
dangerous or nondangerous offender and reversed that portion of Finley's sentence.

Likewise, Chandler escaped from prison on October 14, 1994. Although the legislature
subsequently amended § 46-18-401, MCA (1993), and eliminated subparagraph (5), that
amendment did not take effect until April 12, 1995. Thus, the law applicable to Chandler's
sentence was § 46-18-401 (5), MCA (1993), not the amended version. Accordingly, we
hold that Chandler's sentence for escape should have run concurrently as required by § 46-
18-401 (5), MCA (1993).

IT IS ORDERED that Chandler's petition for review should be and is hereby deemed to be
a petition for rehearing.

IT IS FURTHER ORDERED that Chandler's petition for rehearing is GRANTED.

IT IS FURTHER ORDERED that the Clerk of this Court give notice of this order by mail
to the Petitioner, Jamie S. Chandler; Diana Leibinger-Koch, Montana Department of
Corrections; and the Montana Attorney General's Office.

DATED this 28th day of November, 2000.


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-474%20Opinion.htm (4 of 5)3/30/2007 2:53:42 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-474%20Opinion.htm


                                                       /S/ J. A. TURNAGE

                                               /S/ TERRY N. TRIEWEILER

                                                        /S/ JIM REGNIER

                                                   /S/ JAMES C. NELSON

                                               /S/ WILLIAM E. HUNT, SR.

                                              /S/ W. WILLIAM LEAPHART




file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-474%20Opinion.htm (5 of 5)3/30/2007 2:53:42 PM
