State v. Usrey ( 2015 )

June 23 2015
DA 14-0395
Case Number: DA 14-0395
IN THE SUPREME COURT OF THE STATE OF MONTANA
2015 MT 176N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
RICKY JOE USREY,
Defendant and Appellant.
APPEAL FROM: District Court of the Seventh Judicial District,
In and For the County of Richland, Cause No. DC-99-21
Honorable Katherine M. Bidegaray, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Ricky Joe Usrey (Self-Represented), Deer Lodge, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Brenda K. Elias, Assistant
Attorney General, Helena, Montana
Mike Weber, Richland County Attorney, Sidney, Montana
Submitted on Briefs: May 27, 2015
Decided: June 23, 2015
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), 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 Ricky Joe Usrey appeals from the District Court’s order filed June 13, 2014,
denying his motion to modify the sentencing judgment in this case. We affirm.
¶3 In 1999 Usrey pled guilty to a charge of sexual intercourse without consent in
which the victim was a six-year-old girl. His original sentence was fifteen years with ten
suspended. He was released after serving four years, but the District Court revoked his
probation and resentenced him in 2005. Since then, Usrey has been released on probation
several times, but has been resentenced and returned to prison when he failed to abide by
the conditions of release. In 2009 the District Court denied his attempt to withdraw his
guilty plea and this Court affirmed. State v. Usrey, 2009 MT 227, 351 Mont. 341, 212
P.3d 279.
¶4 Usrey commenced the present proceeding on May 7, 2014, when he moved the
District Court to modify his last sentence after revocation. He contends he is serving an
illegal sentence because his current discharge date falls a year or more after the date upon
which he would have been released had he served the entire fifteen-year sentence
imposed in 1999. The District Court denied his motion, noting that at each re-sentencing
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after Usrey violated the conditions of his release in the last fifteen years, he received
credit for any time of actual incarceration, but not for time served on probationary
release.
¶5 A district court considering a defendant’s sentencing after probation revocation
can allow all or part of the elapsed time as credit against the new sentence, Section
46-18-203(7)(b), MCA. The District Court’s order of January 28, 2011, revoking
Usrey’s suspended sentence specifically stated the reasons for limiting the amount of
credit granted against the new sentence. The District Court fully complied with
§ 46-18-203(7)(b), MCA, in imposing the sentence that Usrey is now serving. The fact
that his discharge date is later than the date he may have anticipated is wholly a result of
his own conduct in repeatedly violating the conditions of his release on probation. It does
not make the sentence illegal.
¶6 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, this case presents a question controlled by settled law or by the clear
application of applicable standards of review. The District Court’s order was not an
abuse of discretion.
¶7 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ PATRICIA COTTER
/S/ JAMES JEREMIAH SHEA
/S/ MICHAEL E WHEAT
/S/ JIM RICE
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