                                                                                         January 27 2015


                                          DA 13-0322
                                                                                        Case Number: DA 13-0322

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2015 MT 20



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

AMANDA RENEE BYRD,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Missoula, Cause No. DC 11-07
                        Honorable John W. Larson, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Wade Zolynski, Chief Appellate Defender, Kristen L. Larson, Assistant
                        Appellate Defender, Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein,
                        Assistant Attorney General, Helena, Montana

                        Kristen Pabst, Missoula County Attorney, Andrew W. Paul, Deputy
                        County Attorney, Missoula, Montana



                                                   Submitted on Briefs: December 10, 2014
                                                              Decided: January 27, 2015


Filed:

                        __________________________________________
                                          Clerk
Justice Patricia Cotter delivered the Opinion of the Court.

¶1     Amanda Byrd entered a guilty plea to a single count of fraudulently obtaining

dangerous drugs.      The Fourth Judicial District Court stayed sentencing until Byrd

completed a 12-month drug and alcohol addiction treatment program through Rimrock

Foundation in Billings, Montana. Shortly after completing the treatment program, Byrd

relapsed, and was taken into custody and subsequently sentenced. She requested that the

District Court give her credit for the time she spent in the 12-month treatment program.

The District Court denied her request. Additionally, the District Court’s oral

pronouncement of sentence pertaining to counsel fees conflicted with the corresponding

provision in the written judgment. Byrd appeals. We affirm in part and reverse and

remand in part.

                                         ISSUES

¶2     Did the District Court err in imposing $800 in appointed public defender fees in

the written judgment when the oral pronouncement of sentence indicated Byrd was to pay

$500 in defense counsel fees?

¶3     Did the District Court err in denying Byrd credit for time served in a residential

treatment facility?

                  FACTUAL AND PROCEDURAL BACKGROUND

¶4     In 2008, Amanda Byrd was convicted of fraudulently obtaining dangerous drugs, a

felony.   In January 2011, the State charged Byrd with three counts of fraudulently

obtaining dangerous drugs, second offense. She was not required to post bail and was

released on her own recognizance. Byrd initially entered a not guilty plea but later


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entered into a plea agreement. In exchange for her plea of guilty to a single count, the

parties agreed that an appropriate disposition of the case was an 8-year sentence, with 3

years suspended, to the Department of Corrections (DOC).            The plea included a

recommendation that Byrd be screened for chemical dependency treatment and if

appropriate, enter and complete the Elkhorn Treatment Program. Byrd agreed to pay

$500 in public defender fees as well as other fines and fees. At the change of plea

hearing on June 17, 2011, the District Court offered to help Byrd secure placement in

Family Treatment Court (FTC) rather than have her obtain initial treatment from Elkhorn.

Following the change of plea, the court ordered a pre-sentence investigation (PSI).

¶5     On September 4, 2011, Byrd entered into a Missoula County Family Treatment

Court contract setting forth the terms and conditions of her participation in FTC.

Subsequently, Byrd was accepted into the Rimrock Foundation’s treatment program in

Billings, Montana. On October 31, 2011, the District Count conducted a hearing in

which the judge explained the importance of Byrd adhering to the terms and conditions of

treatment and the available sanctions for failure to do so.       The court then stayed

sentencing pending Byrd’s successful completion of the Rimrock program. Byrd was

accepted into Rimrock’s Michelle’s House program allowing her two children to live

with her at Michelle’s House during treatment.            The court stated that “upon

recommendation of Rimrock Treatment professionals, and with the concurrence of the

Family Treatment Court Team, [the District Court] reserves the right to order sanctions,

including detention and removal from the program, in the event of rule violations,

including use of illegal substances.”


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¶6     Byrd arrived at Michelle’s House on November 3, 2011, and remained in the

treatment facility for 12 months. The record does not indicate that she was released from

the program for any reason other than completing it.        While Byrd was undergoing

treatment, the District Court issued monthly orders instructing her to continue following

the goals outlined in the FTC contract.

¶7     In December 2012 and January 2013 following her departure from Michelle’s

House, Byrd appeared before the District Court judge or a standing master on numerous

occasions. She had received citations for driving without a license and insurance; she

had accepted and filled an opiate-based medication prescription in preparation for dental

surgery in violation of court orders; she had lied to the court about the prescription; she

had failed to undergo a scheduled urinalysis (UA) at the proper time and location; she

failed to complete and submit her application to Elkhorn Treatment Center; and she failed

a UA by testing positive for opiates and benzodiazepines. The State moved for issuance

of a Bench Warrant which was granted.

¶8     On March 7, 2013, Byrd was sentenced under § 45-9-106, MCA, to serve 8 years

with DOC, with 3 years suspended. The court recommended placement at Elkhorn and

imposed 29 conditions of probation as well as specific financial obligations. Byrd’s

counsel requested that Byrd be given credit for the time she was in treatment in Billings

but the District Court summarily denied the request. The court issued its Amended

Judgment on March 18, 2013. The written judgment indicated that Byrd was to pay $800

in public defender fees.




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¶9     Byrd filed a timely appeal of the court’s refusal to grant credit for the time she was

in treatment and the court’s imposition of $800 in defense counsel fees when the plea

agreement provided for her payment of $500 for counsel fees.

                               STANDARD OF REVIEW

¶10    We review a criminal sentence of incarceration only for legality—that is, whether

the sentence falls within the statutory parameters. State v. Piller, 2014 MT 342, ¶ 11, 377

Mont. 374, ___ P.3d ___ (citation omitted).

                                      DISCUSSION

¶11    Did the District Court err in imposing $800 in appointed public defender fees in
       the written judgment when the oral pronouncement of sentence indicated Byrd was
       to pay $500 in defense counsel fees?

¶12    Byrd argues that the District Court erred when it imposed an $800 defense counsel

fee in its written order of judgment when, at the sentencing hearing, the court orally

imposed a $500 obligation for such fee. The State concedes this was error on the part of

the District Court. “It is well-established that the oral sentence pronounced from the

bench in defendant’s presence is the ‘legally effective sentence and valid, final

judgment.’” State v. Andress, 2013 MT 12A, ¶ 33, 368 Mont. 248, 299 P.3d 316. We

reverse the District Court’s order as it pertains to Byrd’s payment of $800 for defense

counsel fees and remand with instructions that the District Court conform the judgment to

the oral pronouncement with a $500 defense counsel fee.




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¶13   Did the District Court err in denying Byrd credit for time served in a residential
      treatment facility?

¶14   Relying on § 46-18-403(1), MCA, Byrd asserts that she was entitled to credit for

her “incarceration” time in Michelle’s House and the District Court’s summary denial of

her request was reversible error.    Section 46-18-403(1), MCA, provides “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, except

that the time allowed as a credit may not exceed the term of the prison sentence

rendered.” The crux of Byrd’s argument is that because her time in Michelle’s House

constituted incarceration, she was entitled under the statute to credit for each day spent

there once the District Court entered a subsequent judgment of imprisonment against her.

¶15   Byrd argues that she was ordered by the District Court to “enter, actively engage

in treatment, and complete” the 12-month program at the residential treatment facility.

She maintains that the facility had alarms and other security measures in place; she was

not allowed to leave the house without authorization; her contact with anyone outside the

program was “significantly limited,” and the program was tightly structured.        Byrd

contends that because her freedom of movement and behavior were substantially

restrained at Michelle’s House, the program constitutes incarceration by definition and

within the meaning of § 46-18-403(1), MCA.

¶16   The State counters that the purpose of § 46-18-403(1), MCA, is to protect indigent

defendants who are unable to post bail and must remain in custody until they are

sentenced, when non-indigent defendants may secure their release and remain free during



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that same period. It asserts that because Byrd is not indigent and was never incarcerated

and unable to post bail, the general purpose of the statute is not implicated and the statute

does not apply. The State requests that if we conclude the statute is implicated, we

should remand the matter to the District Court to allow it the opportunity to present

evidence showing that Michelle’s House is not the equivalent of incarceration.

¶17    The question we must answer is whether Byrd’s enrollment in the program at

Michelle’s House is equivalent to incarceration, thereby requiring a court to allow her

credit for each day of attendance in the program pursuant to the provisions of

§ 46-18-403(1), MCA. We have not previously addressed the question of whether this

particular statutory provision would apply to a treatment program such as Michelle’s

House.

¶18    The term “incarceration” is not defined in the Montana Code.                 However,

§ 46-18-201, MCA, sets forth the sentences that may be imposed by a district court.

Section 46-18-201(3)(a)(iii), MCA, permits a sentencing judge to impose a sentence that

may include “a term of incarceration, as provided in Title 45 for the offense, at a county

detention center or at a state prison to be designated by the department of corrections.”

In that the statute limits incarceration to a detention center or state prison, the legislature

apparently does not deem a treatment facility to be a place of incarceration. It follows

that if a treatment facility is not deemed to be incarceration, then a person who secures

treatment at such a facility is not entitled to credit for the time spent there. As noted, the

statute upon which Byrd relies for her argument, § 46-18-403(1), MCA, allows credit

only “for each day of incarceration prior to or after conviction.”


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¶19    As noted by Byrd, other states have enacted legislation that permits defendants to

receive credit for time served in a residential treatment facility.1 Montana has not done

so. While certainly Montana could choose to do so, the fact remains that “[t]he

sentencing authority of a court exists solely by virtue of the statutory grant of power and

therefore cannot be exercised in any manner not specifically authorized.”         State v.

Lenihan, 184 Mont. 338, 342, 602 P.2d 997, 1000 (1979). We conclude that because the

Montana legislature has limited incarceration to location at a county detention center or a

state prison, a district court has no statutory authority to decide that placement at a

treatment center constitutes incarceration. Therefore, we must reject Byrd’s argument

that her time spent at Michelle’s House constituted incarceration.

                                     CONCLUSION

¶20    For the foregoing reasons, we affirm the District Court’s denial of credit for the

time Byrd spent in Michelle’s House. We reverse the District Court’s amended judgment

and remand with instructions that Byrd’s payment of defense counsel fees be adjusted to

$500 in accordance with the oral pronouncement of sentence.


                                                 /S/ PATRICIA COTTER

We Concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ JIM RICE



       1
           N.J. Stat. § 2C:35-14(d); Rev. Code Wash. 9.94A.660.

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