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                          IN THE SUPREME COURT OF THE STATE OF MONTANA



                                                               No. 00-006

                                                               2000 MT 62

                                                              299 Mont. 46

                                                              997 P. 2d 753

                                                          _______________



                                                   WILLIAM R. MacPHEAT, )

                                                                       )

                                                               Petitioner, )

                                                                       )

                                                           v. ) O P I N I O N

                                                                   ) AND

                                          MIKE MAHONEY, Warden, ) O R D E R

                                                       Montana State Prison, )

                                                                       )

                                                              Respondent. )

                                                          _______________



   1. ¶William R. MacPheat (MacPheat), pro se, an inmate at the Montana State Prison

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       (MSP), has petitioned this Court for a writ of habeas corpus. We conclude that
       MacPheat's petition is meritorious as to one claim, and we remand for further
       proceedings consistent with this opinion and order.

.Background

   1. ¶From the limited record before us, the following appears to be the procedural
      background of this matter. In October 1995, MacPheat was charged by Amended
      Information with felony arson, misdemeanor assault and attempted assault, and
      misdemeanor criminal mischief in the Eleventh Judicial District Court, Flathead
      County. Pursuant to § 46-18-201(1)(e), MCA (1993), and his plea of guilty to arson
      under a plea agreement, MacPheat was sentenced to the Department of Corrections
      (DOC) for ten years with two years suspended. The sentencing judge recommended
      MacPheat for the Intensive Supervision Program (ISP). She imposed conditions
      with which MacPheat would be required to comply if admitted to probation or
      parole, and she ordered him to receive credit for 331 days of pre-sentence
      incarceration. MacPheat was placed in the ISP in Kalispell, Montana on December
      1, 1995.
   2. ¶Approximately two months later, on January 24, 1996, the State filed another
      Information in which MacPheat was charged with felony deceptive practices.
      MacPheat pleaded guilty under a plea agreement and was sentenced to DOC for
      three years to run consecutive with the arson sentence. MacPheat was returned to
      the MSP on May 8, 1996.
   3. ¶MacPheat challenges the legality of his continued incarceration. He contends that
      he discharged his sentence on January 5, 2000. He argues that this Court should
      grant his petition because (1) he is being denied equal protection of the law under
      the Fourteenth Amendment of the United States Constitution as he did not receive
      good-time credit while he awaited sentencing in the county jail; and because (2) §
                                                    (1)
       46-23-201(6), MCA (1993) , mandates he appear before the Parole Board for a
       parole hearing as to his first sentence no later than February 18, 1996. We address
       only MacPheat's first claim as this is dispositive of his petition.

                                                              Discussion

   1. ¶Habeas corpus relief is available to one illegally imprisoned or otherwise restrained
       of his liberty. Section 46-22-101, MCA. MacPheat contends that, had he received all
       of the good-time credit to which he was entitled, he would have discharged his

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        sentence on January 5, 2000. Accordingly, he maintains that he is presently being
        imprisoned in violation of the law. If, in fact, MacPheat has discharged his sentence
        but is still imprisoned, then habeas corpus relief is available as he is being
        unlawfully imprisoned and restrained of his liberty.
                                                                     (2)
    2. ¶Under § 53-30-105(1), MCA (1995)                                   the DOC may:

[G]rant a good time allowance to inmates housed at an adult correctional facility or a
supervised release program facility. The good time allowance may operate as a credit on
the inmate's sentence as imposed by the court, conditioned upon the inmate's good
behavior and compliance with the rules adopted by the department. The department may
not grant good time allowance to exceed 1 day for each day served at an adult correctional
facility or a supervised release program facility.



Under this statute, the DOC may take away all or part of an inmate's good time for
attempted escape and for violations of DOC rules. Section 53-30-105(2), MCA. Persons
may earn (and lose) good time while on parole, but may not earn good time while serving
probation. Section 53-30-105(3), MCA. Under § 53-30-105(4), MCA, the DOC may
restore all or part of previously forfeited good time for subsequent good behavior. And,
under § 53-30-105(5), MCA, the DOC may grant some additional good-time credit to
advance an inmate's parole eligibility in the event the MSP population exceeds the design
capacity of the institution.

    1. ¶As the State correctly points out, however, there is no provision in § 53-30-105,
       MCA which permits the DOC to award good time to individuals who are
       incarcerated in a county detention center.
    2. ¶Notwithstanding this seeming statutory restriction, MacPheat argues that he is
                                                                                                                   (3)
       entitled to good-time credit for the time that he was incarcerated in the county jail.
       For his position, he relies on MacFarlane v. Walter (9th Cir. 1999), 179 F.3d 1131.
       Before discussing this case, though, some further legal background is necessary.
    3. ¶In 1973, the United States Supreme Court handed down its decision in McGinnis v.
       Royster (1973), 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282. The McGinnis Court
       upheld the constitutionality of a New York sentencing scheme against an equal
       protection challenge. McGinnis, 410 U.S. at 277, 93 S.Ct. at 1063. The New York
       sentencing statute at issue denied certain state prisoners good-time credit toward
       parole eligibility for the period of their pre-sentence county jail incarceration,

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      whereas those released on bail prior to sentence received under the statute full
      allowance for good-time credit for the entire period of their prison confinement.
      McGinnis 410 U.S. at 263, 93 S.Ct. at 1056. The Court held that the New York
      scheme for good-time credit took into account a prisoner's performance under the
      program of rehabilitation that is fostered under the state prison system, but not in the
      county jails, which served primarily as detention centers. The Court recognized that
      the New York statutory scheme may have caused indigent defendants who could not
      make bail to serve longer actual jail time than those defendants who were able to
      make bail. McGinnis, 410 U.S. at 263, 93 S.Ct. at 1058. However, the Court also
      reasoned that since county jails have no significant rehabilitation programs, a
      rational basis exists for declining to give good-time credit for the pre-trial jail-
      detention period. McGinnis, 410 U.S. at 271, 93 S.Ct. at 1060.
   4. ¶McGinnis would, thus, seem to provide the legal basis for rejecting MacPheat's
      similar equal protection claim. Specifically, under § 53-30-105, MCA, good-time
      credit is awarded as an incentive for good behavior and to foster rehabilitation
      through compliance with rules and participation in programs at the MSP. Similarly,
      good-time credit is forfeited for bad behavior and violation of the prison rules. For
      purposes of this matter, we assume that the Flathead County detention facility does
      not have significant rehabilitation programs. At least, if the contrary is true, that has
      not been affirmatively argued by the State. Therefore, under the McGinnis decision,
      a rational basis would appear to exist for denying MacPheat good-time credit for his
      pre-trial detainment in the Flathead County detention facility.
   5. ¶In 1983, however, the U.S. Supreme Court applied the due process "fundamentally
      unfair or arbitrary" test to hold that a probationer's probation could not be revoked
      simply because he was unable to pay a fine. Bearden v. Georgia (1983) 461 U.S.
      660, 672, 103 S.Ct. 2064, 2073, 76 L.Ed.2d 221. Bearden did not involve an issue
      of good-time credit being denied to those persons who remained incarcerated in
      county detention facilities because they were unable to bail out pre-sentence. In fact,
      nowhere in Bearden did the Court even refer to McGinnis much less overrule the
      holding in that case.
   6. ¶Rather, noting its long history of sensitivity to the treatment of indigents in the
      criminal justice system and grounding its decision in the convergence of due process
      and equal protection principles, Bearden, 461 U.S. at 664-65, 103 S.Ct. at 2068, the
      Court focused on the effect that indigency often plays in probation revocations.
      Bearden, 461 U.S. at 666, 103 S.Ct. at 2069. The Court stated that, absent the
      probationer willfully refusing to pay a fine or restitution when he has the means to
      pay or failing to make a bona fide effort to seek employment or borrow the money

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      and having made all reasonable efforts to pay "it is fundamentally unfair to revoke
      probation automatically without considering whether adequate alternative methods
      of punishing the defendant are available." Bearden, 461 U.S. at 668-69, 103 S.Ct. at
      2070-71. "Only if alternate measures are not adequate to meet the State's interests in
      punishment and deterrence may the court imprison a probationer who has made
      sufficient bona fide efforts to pay." Bearden, 461 U.S. at 672, 103 S.Ct. at 2073. To
      deprive a probationer of his conditional freedom simply because, through no fault of
      his own, he was unable to pay a fine or restitution "would be contrary to the
      fundamental fairness required by the Fourteenth Amendment." Bearden, 461 U.S. at
      672-73, 103 S.Ct. at 2073.
   7. ¶In two decisions handed down after Bearden, both involving the same issue raised
      in McGinnis, the circuit courts of appeal applied McGinnis in reviewing state habeas
      proceedings to uphold the state sentencing schemes at issue against the same sort of
      equal protection challenge that MacPheat raises in the case at bar. See Lemieux v.
      Kerby (10th Cir. 1991) 931 F.2d 1391; Chestnut v. Magnusson (1st Cir. 1991) 942
      F.2d 820. Indeed, Lemieux specifically rejected an argument that Bearden overruled
      McGinnis. Lemieux, 942 F.2d at 1393 n.4. See also State v. Aqui (N.M. 1986), 721
      P.2d 771, 775, cert. denied, (1986), 479 U.S. 917, 107 S.Ct. 321, 93 L.Ed.2d 294,
      accord.
   8. ¶That, in turn, brings us back to the Ninth Circuit's 1999 decision in MacFarlane. In
      MacFarlane the state habeas petitioners alleged that the Pierce County and Clark
      County (Washington) jail policies for "early release" or "good conduct" and "good
      performance" violated federal equal protection and due process guarantees as
      applied to them. The petitioners argued that these policies prevent county pre-
      sentence detainees who are unable to afford bail and are ultimately sentenced to a
      state facility operated by the department of corrections, from earning the same early-
      release credit as prisoners who are financially able to post bail and thus serve their
      entire sentences in a state facility. MacFarlane, 179 F.3d at 1134.
   9. ¶The MacFarlane court ruled that the counties' allowance of fewer good-conduct
      credits to defendants detained pre-trial in county jails because of financial inability
      to post bail than would be allowed defendants whose financial resources permitted
      them to wait to begin serving their time until after commitment, post-sentencing, to
      a state correctional facility violated equal protection. MacFarlane, 179 F.3d at 1142.
      The court also held that the county policies were contrary to clearly established
      federal law--namely Bearden--and that the Washington Supreme Court's denial of
      the petitioners' habeas petitions was contrary to or an unreasonable application of
      Bearden, thus entitling petitioners to federal habeas relief under the Antiterrorism

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      and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d). MacFarlane, 179
      F.3d at 1142.
  10. ¶In reaching this decision, the MacFarlane court pointedly found McGinnis to be
      "informative, but distinguishable."

McGinnis, however, decided 12 years before Bearden, was not about indigency: although
appellees Royster and Rutherford appear to have been unable to post bail because of
indigency, [McGinnis], 410 U.S. at 266-67, 93 S.Ct. 1055, the issue was not framed as one
of disparate treatment of indigent prisoners, nor did the Supreme Court so analyze it.
Rather the issue presented involved the denial of early-release credit to the broad class of
state prisoners detained in county jails, for whatever reason, prior to trial or prior to
sentencing. The Supreme Court, therefore, applied the rational basis test. The petitioners
here, as the Washington Supreme Court recognized, explicitly claim an equal protection
violation based on their indigency. This is not to say that the Supreme Court in McGinnis
could not have treated the case as one about indigency and analyzed the issue in this light,
but it did not do so and, therefore, McGinnis, is not on point. It is probably for that reason
that the Supreme Court did not mention McGinnis when it decided Bearden. Finally, we
do not know, of course, what the Supreme Court would have held had it analyzed
McGinnis under the Bearden standard.



MacFarlane, 179 F.3d at 1140 n.11.

    1. ¶The MacFarlane court reasoned that Bearden, decided years after McGinnis and
        grounded in thirty years of precedents clearly established the law governing the
        good-time or early-release credit issue at bar and that Bearden's analysis controlled
        whether and under what circumstances an individual can be subjected to increased
        incarceration solely because of indigency. The MacFarlane court stated:

Bearden both articulated guiding principles for analyzing equal protection claims brought
by indigent defendants and applied them to the specific issue presented, which, like the
issue presented here, concerned increased incarceration because of indigency. Bearden
stresses the necessity of weighing alternatives to increased incarceration as a means of
punishing the indigent. . . . In no uncertain terms, the Court held that to deprive a
defendant of his freedom simply because, through no fault of his own, he cannot pay
would be contrary to the Fourteenth Amendment's requirement of fundamental fairness.


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MacFarlane, 179 F.3d at 1139 (internal citations to Bearden omitted).

    1. ¶The court also observed that it had relied on Bearden principles in another case
         involving the effects of indigency on incarceration. MacFarlane, 179 F.3d at 1139
         (citing United States v. Parks (9th Cir. 1996), 89 F.3d 570 (finding a constitutional
         violation when points were added to a defendant's criminal history for sentencing
         guideline purposes solely as a result of the defendant's indigency)).
    2.   ¶However, and notwithstanding the court's decision in MacFarlane, the State argues
         that, as to the case sub judice, McGinnis controls the disposition of MacPheat's
         equal protection claim. The State contends that the Ninth Circuit erroneously
         decided MacFarlane based upon an expansive reading of Bearden and did so
         without adequately addressing the ramifications of McGinnis. On the basis of these
         "analytical flaws" the State urges that we not follow MacFarlane. We decline the
         State's suggestion.
    3.   ¶While we have never squarely held that this Court is specifically bound by Ninth
         Circuit federal law decisions under Supremacy Clause doctrine, the fact is that the
         Ninth Circuit Court of Appeals, the federal circuit to which Montana belongs, has
         rendered a decision interpreting the United States Constitution and applying federal
         case law to the precise issue which MacPheat raises under the Fourteenth
         Amendment in the case at bar. While we may not be required to follow MacFarlane
         given that there exists other case law from the U.S. Supreme Court which may,
         arguably, justify a contrary analysis and result, nonetheless, we conclude that the
         Ninth Circuit Court of Appeals' decision should be given deference.
    4.   ¶More to the point, the MacFarlane court's opinion is legally persuasive, especially
         in light of its analysis distinguishing McGinnis. We believe, as did the court in
         MacFarlane, that Bearden clearly and unambiguously stands for the principle that
         to deprive a criminal defendant of his freedom simply because, through no want of
         bona fide effort, willful refusal or fault of his own, he lacks the financial resources
         to buy his liberty would be contrary to the fundamental fairness required by the
         Fourteenth Amendment. Bearden 461 U.S. at 672-73, 103 S.Ct. at 2073;
         MacFarlane, 179 F.3d at 1139.
    5.   ¶That is not to say that poverty insulates the criminal defendant from having to post
                                                                       (4)
         a reasonable and legally sufficient bail should the facts and circumstances of his
         case so require in the trial court's discretion. See Bearden, 461 U.S. at 673, 103 S.Ct.
         at 2073 n. 12. Rather, Bearden and MacFarlane, read together, simply stand for a
         rule of fundamentally fair and equal treatment under the law. Specifically, we hold

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       that if the criminal defendant, for no other reason than his indigency, is unable to
       secure his pre-sentence freedom by posting bail, then he is entitled to good-time
       credit for the time he spends in the county detention facility, pre-sentence, to the
       same extent that the law allows good-time credit to the criminal defendant who is
       able to post bail and, thus, serve the entirety of his sentence in the state correctional
       facility.
    6. ¶That said, the record before us does not establish whether MacPheat was offered or
       denied bail and whether, if offered, the sole reason for his inability to post the bail
       so offered was his indigency. Accordingly, this case must be remanded to the
       Eleventh Judicial District Court for fact finding and a decision relative to these
       issues. If the trial court determines that MacPheat is entitled to good-time credit for
       the time he spent in the county detention facility under the test articulated above,
       then the court shall determine the amount of good-time credit to which MacPheat is
       entitled and shall order DOC to apply that to the reduction of his sentence.
    7. ¶IT IS ORDERED that MacPheat's petition for writ of habeas corpus is granted.
       This case is remanded to the Eleventh Judicial District Court for further proceedings
       consistent with this opinion and order. We direct that this matter receive priority on
       the District Court's calendar.
    8. ¶IT IS FURTHER ORDERED that the Clerk of this Court give notice of this order
       by mail to MacPheat at his last known address; to counsel of record; to the Clerk of
       the District Court; to the District Court Judges of the Eleventh Judicial District; and
                                                                                             (5)
        to the Honorable C.B. McNeil, District Court Judge.

Dated this 9th day of March, 2000.

/S/ JAMES C. NELSON

/S/ WILLIAM E. HUNT, SR.

/S/ W. WILLIAM LEAPHART

/S/ TERRY N. TRIEWEILER



Justice Jim Regnier dissenting.

    1. ¶I dissent from the majority's opinion and order granting MacPheat's petition for a

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      writ of habeas corpus and remanding the matter to the District Court. The United
      States Supreme Court has spoken on this issue and in my view we are bound by its
      decision, since MacPheat does not raise an independent claim under the Montana
      Constitution. I further believe the majority's reliance on MacFarlane v. Walter (9th
      Cir. 1999), 179 F.3d 1131, is problematic.
   2. ¶The United States Supreme Court has held that a state may decline to give good-
      time credit for pre-trial jail detention periods even when doing so causes indigent
      defendants who could not make bail serve longer actual jail time than those
      defendants who were able to make bail as long as there is a rational basis for the
      scheme. See McGinnis v. Royster (1973), 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d
      282. As the majority acknowledges, the holding of McGinnis has not been overruled
      and has recently been applied in two circuit court decisions to uphold state
      sentencing schemes against the same sort of equal protection challenge that
      MacPheat raises in the case at bar. See MacPheat v. Mahoney, supra, at ¶ 13
      (opinion of majority) (citing Lemieux v. Kerby (10th Cir. 1991), 931 F.2d 1391;
      Chestnut v. Magnusson (1st Cir. 1991), 942 F.2d 820).
   3. ¶The majority suggests that we "give deference " to the lone opinion of the Ninth
      Circuit in MacFarlane while at the same time acknowledging that the Supreme
      Court decision in McGinnis has not only not been subsequently overruled, but has
      been followed by two federal circuit courts. MacPheat, supra, at ¶ 20. I cannot
      distinguish MacFarlane from McGinnis, either factually or legally. Therefore, I
      think the Ninth Circuit clearly erred in not following McGinnis and I would not
      propagate the error any further.
   4. ¶As in McGinnis, the petitioners in MacFarlane were indigent and unable to post
      bail and therefore served time in a county detention center prior to trial and
      sentencing. They claimed that as a result of their inability to post bail, they were
      denied due process and equal protection of the laws under a state scheme which
      prevented county pre-sentence detainees from earning the same early-release credits
      as those defendants who were able to post bail and thus serve their entire sentences
      in a state facility. Instead of simply applying McGinnis and denying the petitioner's
      appeal, the Ninth Circuit analyzed the issue under Bearden v. Georgia (1982), 461
                                                                            (6)
      U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221.
   5. ¶The only acknowledgment of McGinnis appears in a footnote in which the Ninth
      Circuit claimed that "McGinnis is informative, but distinguishable" because it was
      "not about indigency." MacFarlane, 179 F.3d at 1140 n.11. However, McGinnis
      was clearly about indigency. Both petitioners in McGinnis served part of their
      sentences in county detention centers because they were unable to post bail.

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       McGinnis, 410 U.S. at 266-67, 93 S.Ct. at 1057. Moreover, as the Supreme Court
       observed, "Appellees contend that denying state prisoners good-time credit for the
       period of their pre-sentence incarceration in a County jail . . . violates equal
       protection of the laws and discriminates against those state prisoners unable to
       afford or otherwise qualify for bail prior to trial." McGinnis, 410 U.S. at 268, 93 S.
       Ct. at 1058 (quotations omitted). McGinnis is clearly not distinguishable from
       MacFarlane based on the indigency of the petitioners. Rather, the essence of the
       McGinnis opinion is that a state early-release scheme that may have a disparate
       impact on indigent defendants nonetheless does not violate the Equal Protection
       Clause as long as that scheme is rational.
    6. ¶ Under the analysis set forth by the United States Supreme Court, I believe
       Montana's good-time statute has a rational basis. The legislature could have
       rationally decided to limit good-time credit to inmates in the state correctional
       facility because incarceration at a state correctional facility affords state officials
       with increased opportunities for evaluating an inmate's behavior and rehabilitative
       progress. See McGinnis, 410 U.S. at 274, 93 S.Ct. 1061. The legislature also could
       have concluded that a sufficient incentive for good behavior in a pretrial detention
       setting is provided by the prospect of being sentenced to a longer term based on a
       detainee's behavior while so incarcerated and that no such incentive exists for a
       prisoner already sentenced to a correctional facility. See Chestnut, 942 F.2d at 824.
       Likewise, the legislature may have concluded that its good-time statute serves the
       purpose of rehabilitation, a process which cannot logically begin until after a
       conviction has been obtained. See Lemieux, 931 F.2d at 1394.
    7. ¶Accordingly, for the aforementioned reasons, I would deny MacPheat's petition for
       writ of habeas corpus.

/S/ JIM REGNIER




Chief Justice J. A. Turnage and Justice Karla M. Gray join in the dissenting opinion of
Justice Regnier.



/S/ J. A. TURNAGE


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/S/ KARLA M. GRAY

1. The version of the statute in effect when MacPheat committed the offense of felony arson on or about
January 4, 1995.

2. The Montana Legislature amended § 53-30-105, MCA, the good-time statute, to provide day-for-day
good-time effective July 1, 1995. See Sec. 10, Ch. 372, L. 1995. The legislature also repealed this
section effective January 31, 1997. See Secs. 12(2), 13, Ch. 372, L. 1995.

3. As far as we can tell from the record before us MacPheat received credit for the actual time he was
incarcerated in the county jail. He did not get additional good-time credit for the actual time he was
incarcerated in the county jail, however.

4. See generally Title 46, Ch. 9, part 1, MCA, and specifically §§ 46-9-102, MCA, and 46-9-301, MCA,
and Article II, Section 21 of the Montana Constitution.

5. MacPheat represents that the Honorable C.B. McNeil is now the district court judge in jurisdiction of
his case, the Honorable Katherine R. Curtis, having been recused. The record before us is insufficient to
substantiate which district court judge is in jurisdiction. Accordingly, we instruct the Clerk of the
District Court to direct this order to the district court judge in jurisdiction, even if that judge is not listed
among those designated herein.

6. In Bearden, the Court applied the "fundamentally unfair or arbitrary" test to hold that a probationer's
probation could not be revoked simply because he was unable to pay a fine absent evidence and findings
that the defendant was somehow responsible for the failure or that alternative forms of punishment were
somehow inadequate. Bearden, 461 U.S. at 666.




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