McCormick v. Salmonsen ( 2022 )

10/04/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: OP 22-0440
OP 22-0440
lig Joni Mom
CHRISTOPHER L. McCORMICK,
OCT 0 4 2022
Petitioner, Bovw,:n G reenwood
Clerk of Supreme Court
State of Montana
v.
ORDER
JAMES SALMONSEN, Warden,
Montana State Prison,
Respondent.
Christopher L. McCormick has filed a verified Petition for Writ of Habeas Corpus,
explaining that he seeks additional jail time credit on a sentence entered in the Nineteenth
Judicial District Court, Lincoln County. In compliance with this Court's August 19, 2022
Order, the Department of Corrections (Department) has responded that McCormick's
Petition should be denied in part, except for the three days of credit for time served from
February 4-7, 2020.
The Department provides rnore details about McCormick's sentencing history. The
District Court originally deferred imposition of sentence for two years for McCormick's
strangulation of a partner or family member in January 2020. The court awarded 27 days
of credit for time served from October 19, 2019, to November 15, 2019.
On December 14, 2020, the State filed a Petition to Revoke, and subsequently an
Amended Petition to Revoke. The District Court held a probation violation hearing on
February 24, 2021. The court found that McCormick had violated his conditions of
probation and revoked the deferred sentence, imposing a five-year term to the Montana
State Prison. The court awarded 82 days ofjail time credit as well as 42 days of street time
or time while on probation (elapsed time).
McCormick contends that he is due additional credit for jail time and includes a
listing of dates. For example, he has included 42 days of credit for receiving treatment in
the Veterans' Administration facility- (VA) from June 2, 2020, until July 14, 2020.
McCormick also requests 522 days credit based on his assertion that good time credit
applies to his sentence on a "DAY for DAY" calculation, relying on MacPheat v. Mahoney,
2000 MT 62, 299 Mont. 46, 997 P.2d 753.
The Department responds that McCorrnick is mistaken. The Department points out
that good time credit applies to sentences imposed before 1995 and this credit does not
exist after the Montana Legislature repealed the statute. Section 53-30-105, MCA (1995)
(1995 Mont. Laws, ch. 372, §§ 12(2), 13, repeal eff. Oct. 1, 1997). In its response, the
Department details the dates and the corresponding credit for either jail time or street time.
Besides 27 days mentioned above, the Department lists 43 days from December 5, 2020,
to January 17, 2021, and 12 days frorn February 12 to February 24, 2021, as credit for jail
time served, totaling 82 days. The Department explains that the court awarded 42 days of
street time credit when McCormick served his probationary term without violations. The
Department further points out that many of McCormick's listed dates overlap or that he
does not have any additional proof for requesting such credit. In re Hart, 178 Mont. 235,
249, 583 P.2d 411, 419 (1978). The Department concedes that McCormick is due the
three-day credit for February 4 through February 7, 2020, when he was under a 72-hour
hold for a probation violation.
We conclude the Department's calculations of credit McCormick is entitled to are
correct. Except for the three days credit while he was in custody, McConnick is not entitled
to any additional credit. Sections 46-22-101(1), and 46-18-203(7)(b) MCA. When a
portion of a sentence is invalid, it is better to remand the matter to the District Court. State
v. Heafner, 2010 MT 87, ¶ 11, 356 Mont. 127, 231 P.3d 1087. Accordingly,
IT IS ORDERED that McCormick's Petition for Writ of Habeas Corpus is
GRANTED, in part, and this proceeding is remanded to the Nineteenth Judicial District
Court, to amend its March 1, 2021 Judgment and Sentence to include three additional days
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of credit for time served. IT IS FURTHER ORDERED that McCormick's Petition for
Writ of Habeas Corpus is DENIED as to all other claims.
The Clerk is directed to provide a copy of this Order to: the Honorable Matthew J.
Cuffe, District Court Judge; Tricia Brooks, Clerk of District Court, Lincoln County, under
Cause No. DC-19-133; counsel of record; and Christopher L. McCormick, personally.
DATED this -1-142:day of October, 2022.
Chief Justice
1
Justices
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