T. Risher v. B. Olson ( 2022 )

01/11/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 21-0524
OP 21-0524
licUILE0
TYRONE LEE RISHER,
JAN 1 1 2022
Bowen Greenwood
Petitioner, Clerk of Supreme Court
State of Montana
v. ORDER
BOB OLSON, STATE OF MONTANA,
Respondent.
Tyrone Lee Risher has filed a petition for a writ of habeas corpus, indicating that
his incarceration is illegal because he did not waive his presence for any hearing when the
Butte-Silver Bow County District Court amended his written judgment to conform with
oral pronouncement. Risher requests that the Departrnent of Corrections (DOC)
recalculate his sentence as this Court directs. In compliance with this Court's October 29,
2021, the State of Montana concedes that this case should be remanded to the District Court
to amend the judgment, correcting the running of Risher's sentences.
On January 10, 2019, the District Court sentenced Risher for felony criminal
mischief to the DOC for an unsuspended five-year term. In the written judgment filed three
weeks later, the District Court ordered that this sentence was to run concurrently with his
other two sentences from Jefferson County and Granite County.' In July 2019, counsel for
Risher filed a motion to amend the written judgment and sentencing order to conform with
the oral pronouncement, pursuant to § 46-18-116, MCA, concerning an incorrect cause
number for the Granite County sentence. On July 18, 2019, the District Court issued an
Order, modifying the original judgment to correct the applicable cause number and
We provide the cause numbers here because of the typographical error in a cause number
used in the original Butte-Silver Bow County District Court's judgment when it initially imposed
Risher's sentence (Cause No. DC-17-299). The sentence from Jefferson County was for Cause
No. DC-18-17, and the sentence from Granite County was for Cause No. DC-17-2, not DC-18-2.
inadvertently ran Risher's five-year sentence concurrently with only his sentence from
Granite County. The Jefferson County sentence was not mentioned.
The State responds that the court's amended order is not complete. The State points
out that Risher received a longer term of imprisonment when the District Court issued its
amended order correcting the cause number because, instead of receiving three concurrent
sentences, Risher has two concurrent sentences, followed by a consecutive sentence from
Granite County. The State concedes that this matter should be remanded to the District
Court to conform the written judgment with the oral pronouncement of sentence,
specifically:
IT IS ORDERED that this sentence shall run concurrently with the
sentences in Jefferson County Cause No. DC-18-17 and Granite County
Cause No. DC-17-2.
In light of the State's concession about the facially invalid portion of Risher's
sentence, we conclude that remanding this matter to the District Court for correction is
appropriate. State v. Heafner, 2010 MT 87, ¶ 11, 356 Mont. 128, 231 P.3d 1087.
IT IS ORDERED that Risher's Petition for Writ of Habeas Corpus is GRANTED
in order to correct the running of Risher's sentences. This matter is REMANDED to the
Second Judicial District Court, Butte-Silver Bow County, to amend Risher's sentencing
judgment in Cause No. DC-17-299, to reflect the concurrent running of all his sentences
as stated in open court on January 10, 2019.
The Clerk of the Supreme Court is directed to provide a copy of this Order to the
Honorable Kurt Krueger, Second Judicial District Court; to Tom Powers, Clerk of District
Court, Butte-Silver Bow County, under Cause No. DC-17-299; to counsel of record; and
to Tyrone Lee Risher pewlly.
DATED this V day of January, 2022.
Chief Justice
2
AIL
Justices