                                                                                          August 13 2013


                                           DA 12-0767

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2013 MT 226N



MICHAEL ELLENBURG,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.



APPEAL FROM:           District Court of the Fourth Judicial District,
                       In and For the County of Missoula, Cause No. DC 97-12940
                       Honorable John W. Larson, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Michael Ellenburg (self-represented), Deer Lodge, Montana

                For Appellee:

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

                       Fred Van Valkenburg, Missoula County Attorney, Missoula, Montana


                                                   Submitted on Briefs: July 24, 2013
                                                              Decided: August 13, 2013



Filed:

                       __________________________________________
                                         Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not serve

as precedent. Its case title, cause number, and disposition shall be included in this Court’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2     Michael Ellenburg appeals from the District Court’s Order of November 20, 2012,

denying his request for additional credit against time to be served in prison. We affirm.

¶3     In 1999 Ellenburg pled guilty to two counts of felony theft and one count of felony

forgery. The District Court sentenced Ellenburg to a 10-year suspended sentence on each of

the theft convictions and to 20 years with five years suspended on the forgery sentence. The

three sentences were to run consecutively to each other.

¶4     In 2006 the State filed a petition to revoke Ellenburg’s suspended sentences for

violations of his conditions of probation. The District Court found that Ellenburg had

violated the conditions and revoked the suspended sentences. In March 2006, the District

Court sentenced Ellenburg to 10 years in prison for each of the felony theft convictions and

to five years on the felony forgery conviction, with the sentences to run consecutively. The

District Court gave Ellenburg credit for 53 days spent in jail in 2005 and 2006, but

specifically declined to grant any other credit against the sentences because of Ellenburg’s

“failure to comply with the terms and conditions of his suspended sentence while under the

supervision of the Department of Probation and Parole.”

¶5     Ellenburg now contends that the District Court should give him additional credit for


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“elapsed time” that he spent in the Intensive Supervision Program for other prior offenses in

1996 and 1997, and for 183 days of “elapsed time” he spent on probation for the theft and

forgery convictions in 2005 and 2006.

¶6     Ellenburg relies upon § 46-18-203(7)(b), MCA, which requires that a judge revoking

a suspended sentence must consider “any elapsed time” and decide whether to credit some,

all, or none of it to the sentence imposed upon revocation. That statute did not entitle

Ellenburg to credit for any “elapsed time,” but only required that the District Court consider

whether to allow credit for any elapsed time. It is clear that the District Court here

considered whether to credit Ellenburg for elapsed time. The District Court granted

Ellenburg credit for time spent in jail, and declined to grant credit for any additional time.

That is all that is required.

¶7     Ellenburg has failed to show any legal basis that he is entitled to any additional

consideration for credit against his sentences. State v. Baker, 1999 MT 251, ¶ 14, 296 Mont.

253, 989 P.3d 335 (there must be a statutory basis for a district court to modify an existing

sentence). Ellenburg also previously exhausted his remedies with regard to the revocation of

his suspended sentences and his subsequent sentences to prison. He appealed his initial

sentences for theft and forgery and this Court affirmed (State v. Ellenburg, 2000 MT 232,

301 Mont. 289, 8 P.3d 801); he appealed the District Court’s denial of his petition for

postconviction relief and this Court affirmed (Ellenburg v. Chase, 2004 MT 66, 320 Mont.

315, 87 P.3d 473); and this Court denied two subsequent petitions for writ of habeas corpus

(Ellenburg v. State, 333 Mont. 553, 143 P.3d 704, 2006 Mont. LEXIS 780 (September 20,


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2006) and Ellenburg v. State, 175 P.3d 304, 2007 Mont. LEXIS 722 (October 31, 2007)).

Ellenburg’s request for credit, if deemed a petition for postconviction relief, is barred by the

one-year statute of limitations in § 46-21-102, MCA, and is additionally barred by § 46-21-

105, MCA, precluding postconviction claims that could have been raised on direct appeal.

¶8     We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our

Internal Operating Rules, which provides for memorandum opinions. The issues in this case

are legal and are controlled by settled Montana law that the District Court correctly

interpreted and applied.

¶9     Affirmed.

                                                   /S/ MIKE McGRATH


We concur:

/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ JIM RICE




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