Yarber v. Salmonsen

EIGINAL 02/21/2023
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: OP 22-0470
7
OP 22-0470
FE3 21 "^3
COY YARBER, P n C.? - -
c.
Petitioner,
v. ORDER
JAMES SALMONSEN, Warden,
Respondents.
In a November 15, 2022 Order, this Court granted self-represented Petitioner Coy
Yarber's Petition for Rehearing in part to address his claim about the lack of the award of
credit for time served in his original sentence imposed on February 20, 2019. We also
ordered the Attorney General or counsel for the Department of Corrections to file a
response. The Attorney General responds and concedes that Yarber is entitled to 196 days
of credit for time served.
The State provides a detailed history of Yarber's criminal background. Relevant
here is Yarber's newer charges from August 2018. The State charged Yarber with felony
criminal possession of dangerous drugs, rnisdemeanor obstructing a peace officer or other
public servant, and misdemeanor criminal mischief. Yarber entered a guilty plea to the
felony. On February 20, 2019, in court, the Cascade County District Court sentenced
Yarber to the Montana State Prison for a five-year term to run consecutively to his other
sentences (2019 sentence).
The State acknowledges that Yarber is correct about his 2019 sentence not being a
sentence upon revocation as in his other two cases. Along with the consent of the Cascade
County Attorney's Office, the State puts forth that this criminal case should be remanded
to the District Court to amend the judgment and to provide 196 days of credit for time
served from Yarber's arrest on August 8, 2018 through February 20, 2019. See § 46-18-
201(9), MCA, and Killam v. Salmonsen, 2021 MT 196, 405 Mont. 143, 492 P.3d 512.
Given the State's concession, therefore,
IT IS ORDERED that Yarber's Petition for Rehearing concerning his writ for
habeas corpus relief is GRANTED in part and Yarber's underlying criminal matter, Cause
No. ADC-18-496, is REMANDED to the Eighth Judicial District Court, Cascade County,
to AMEND its Change of Plea, Sentence, Order to Close File, and Order Exonerating Bond
to include the 196 days of credit for time served as explained above.
IT IS FURTHER ORDERED that Yarber's revived claim about the lack of
jurisdiction due to the same Youth Court cause nurnber in Youth Court as in the District
Court is DENIED and DISMISSED.
IT IS FURTHER ORDERED that this matter is CLOSED as of this Order's date.
The Clerk of the Supreme Court is directed to provide a copy of this Order to: the
Honorable David J. Grubich, District Court Judge; Tina Henry, Clerk of Court, under
Cause No. ADC-18-496; counsel of record, and Coy Yarber personally.
DATED this e/P%--day of February, 2023.
Justices
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