                                                                                           March 31 2015


                                          DA 14-0626
                                                                                         Case Number: DA 14-0626

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2015 MT 96N



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

BRYCE ALLAN SCHOLZ,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Eighth Judicial District,
                       In and For the County of Cascade, Cause No. CDC-11-0479
                       Honorable Kenneth R. Neill, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Bryce Allan Scholz, self-represented, Deer Lodge, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General; Katie F. Schulz, Assistant
                       Attorney General; Helena, Montana

                       John Parker, Cascade County Attorney; Joshua Racki, Deputy County
                       Attorney; Great Falls, Montana




                                                   Submitted on Briefs: March 4, 2015
                                                              Decided: March 31, 2015


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice 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     Bryce Allen Scholz appeals from the denial of his motion for credit toward his

sentence for time served in jail. In June 2011, Scholz was sentenced to four years with

the Department of Corrections, all suspended, for felony theft (First Offense). Scholz

was arrested on September 24, 2011, after violating his probation. While awaiting his

revocation hearing, Scholz was charged by complaint with another felony theft (Second

Offense) on December 4, 2011.

¶3     After his revocation hearing on December 14, 2011, Scholz was sentenced to the

Montana State Prison for four years and was transported there 12 days later. Because

Scholz had been unable to post bail while awaiting the revocation hearing, he was given

credit for 80 days of time served toward his new sentence for the First Offense.

¶4     On March 6, 2012, Scholz pled guilty to the Second Offense and was committed

to the Department of Corrections for a term of 4 years, to be served concurrently with his

sentence for the First Offense. The court granted Scholz credit for 10 days served, the

time spent in jail between the charging of the Second Offense and revocation sentencing

for the First Offense. Scholz subsequently filed a motion seeking credit for the time he
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spent in jail and prison between the dates he was charged and sentenced for Second

Offense—a total of 92 days, arguing that he was entitled to this credit because his

sentences were ordered to run concurrently.       The District Court denied the motion,

mistaking it to mean that Scholz sought to apply the same 80 days of credit that had been

granted on the First Offense to the Second Offense as well. The District Court’s mistake

is demonstrated by its statement that “[t]he Defendant is not entitled to time served in

[First Offense] prior to the charge in this case.” From this order Scholz appeals.

¶5     We review sentences beyond one year of incarceration for legality only. State v.

Hornstein, 2010 MT 75, ¶ 9, 356 Mont. 14, 229 P.3d 1206. We review “whether the

court adhered to the affirmative mandates of the applicable sentencing statutes.” State v.

Ariegwe, 2007 MT 204, ¶ 174, 338 Mont. 442, 167 P.3d 815. Despite the District

Court’s mistake regarding the basis of Scholz’s argument, we affirm the denial of his

motion.

¶6     Section 46-18-403(1), MCA, provides that 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 . . . .” However, as we stated in

State v. Kime, 2002 MT 38, ¶ 16, 308 Mont. 341, 43 P.3d 290, “a defendant’s sentence

may be credited with the time he or she was incarcerated only if that incarceration was

directly related to the offense for which the sentence is imposed.” (see also State v.

Pavey, 2010 MT 104, ¶ 22, 356 Mont. 248, 231 P.3d 1104 (“In other words, it appears


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that during the time period in question, he would have been incarcerated . . . regardless of

the filing of the new charges . . . .”)).

¶7     Here, Scholz argues he was entitled to credit for the days spent in jail and prison

prior to his sentencing for the Second Offense.               Although the District Court

misunderstood Scholz’s request, Scholz is not entitled to relief. “The Court will affirm

the district court when it reaches the right result, even if it reaches the right result for the

wrong reason.” State v. Betterman, 2015 MT 39, ¶ 11, 378 Mont. 182, 342 P.3d 971.

During the 92-day period between the charge and sentencing for the Second Offense,

Scholz was serving time for the First Offense, a matter not “directly related” to the

offense for which he seeks credit. This case is wholly consistent with Kime, which

addressed credit for time served prior to sentencing. Credit for time served toward

concurrently served, or merged, sentences, “does not apply to a sentence before [the

sentence] is imposed.” State v. Tracy, 2005 MT 128, ¶ 29, 327 Mont. 220, 113 P.3d 297.

The District Court’s denial of the motion was appropriate.

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

our Internal Operating Rules, which provides for noncitable memorandum opinions. The

issues in this case are legal and controlled by settled law, which the District Court

correctly interpreted.



                                                   /S/ JIM RICE


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We concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA




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