T. Risher v. B. Olson ( 2021 )

ORIGNA1 10/29/2021
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 21-0524
OP 21-0524
TYRONE LEE RISHER,
FILED
OCT 2 9 71171
Petitioner,
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. He requests that the Department of Corrections (DOC) recalculates
his sentence as this Court directs. Risher includes copies of the DOC sentence calculations
as well as the written judgments.
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
January 31, 2019, the District Court ordered that this case was to run concurrently with his
other sentences from Jefferson County and Granite County. On July 18, 2019, the court
addressed a motion to amend the written judgment and sentencing order to conform with
the oral pronouncement of sentence, pursuant to § 46-18-116, MCA, filed by counsel for
Risher, the week before.1 The court modified the original judgment to show that the five-
year sentence would run concurrently with only his sentence from Granite County (Cause
No. DC-17-2, not DC-18-2).
1 Section 46-18-116(2), MCA, provides that if a written judgment and oral pronouncement
conflict, the defendant may request that the court modify the written judgment within 120 days.
The written judgment was filed on January 31, 2019, and any request should have been filed before
May 31, 2019.
This Court requested a copy of the minute entry from the District Court to confirm
the running of the sentences. The January 10, 2019 minute entry reflects that "[t]he [c]ourt
ordered this sentence to run concurrent to Defendant's sentences in Jefferson County (DC-
18-17) and Granite County (DC-[17]-2)." The written Judgment and Order of
Commitment is similar and states "that this matter shall run concurrent to Jefferson County
DC-18-17 and Granite County DC-[17]-2." The Order Amending Written Judgment to
Conform to Oral Pronouncement provides "[t]hat DC-17-299 (Silver Bow County) run
concurrent with DC-17-2 (Granite County)."
Upon review, we deem it appropriate to require a response to Risher's petition
because his sentence may be illegal. Therefore,
IT IS ORDERED that the Attorney General or counsel for the Department of
Correction is GRANTED thirty days from the date of this Order in which to prepare, file,
and serve a written response to the petition for a writ of habeas corpus together with
appropriate documentary exhibits.
The Clerk of the Supreme Court is directed to provide a copy of this Order to the
Attorney General; to counsel for the Department of Corrections; and to Petitioner
personally.
DATED this day of October, 2021.