Merill v. State

03/09/2021
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 21-0087
OP 21-0087
FLED
SCOTT LANE MERRILL, MAR 0 9 2021
BOVVell Greenwood
Petitioner, Clerk of Supreme Court
State of Montana
v.
ORDER
STATE OF MONTANA,CHOUTEAU COUNTY
DETENTION CENTER,SHERIFF VERN BURDICK,
Respondents.
Representing himself, Scott Lane Merrill has filed a Petition for a Writ of Habeas
Corpus, indicating that he is entitled to more credit for jail time served. He requests his
immediate release and the dismissal of charges. We amend the caption to include the
Sheriffs name for the Chouteau County Detention Center, where Merrill is presently held.
Section 46-22-201(1)(c), MCA.
Merrill includes several attachments and explains that he was arrested on
November 23, 2019, without an arrest warrant. He provides that he has spent 339 days in
jail and that his speedy trial right has been violated. Merrill contends that his right to be
free from double jeopardy was violated because he was charged with failure to give notice
ofchange ofresidence, pursuant to § 46-23-505, MCA,in his two criminal cases. He states
that he received 66 days ofcredit for jail time served, 188 days of street time, and 193 days
ofjail time credit, which he tallies to be 447 days oftotal credit. Merrill also raises claims
of ineffective assistance of counsel and discusses the lack of medical care for an infected
tooth while housed in jail.
While not made clear in Merrill's Petition, Merrill was serving a suspended sentence
prior to the imposition of his second sentence in the Ninth Judicial District Court, Teton
County. Our review of his attachments shed some light on his criminal proceedings. On
May 21, 2019, Merrill received a five-year suspended commitment for felony criminal
possession of dangerous drugs to the Department of Corrections (DOC)(Cause No.
DC-18-014). Merrill also received a six-month, suspended jail term for misdemeanor
assault. The District Court awarded hini 66 days of credit for jail time served. On
November 25, 2019, the State of Montana filed a Petition to Revoke alleging that Merrill
had violated some of his probationary conditions. Merrill and his counsel appeared on
June 1, 2020, and the District Court revoked his suspended sentence.'Merrill received a
five-year commitment to the DOC with no time suspended. The District Court
recommended screening, placement in a treatment facility, and followed by placement in
a pre-release center. The court also awarded Merrill another 193 days ofcredit for jail time
served along with 188 days of street time credit.
In his second proceeding, Merrill entered into a plea agreement regarding three
offenses, filed on September 21, 2020. We secured a copy of the October 27, 2020
Judgment and Sentence (Cause No. DC-19-027). Merrill pleaded guilty via Alford pleas
to felony sexual intercourse without consent and felony failure to give notice of change of
residence for violent or sexual offender registration per the Amended Information in
exchange for dismissal of felony failure to return registration verification. The District
Court sentenced Merrill to the DOC for a ten-year sentence with five years suspended for
sexual intercourse without consent and imposed a five-year, suspended sentence for the
remaining felony. The court awarded Merrill 340 days ofjail time credit. All sentences
were to run concurrently with each other.
Merrill's constitutional rights have not been violated. His right to a speedy trial
does not apply here because he waived that right as noted in his copy ofthe attached plea
agreement for his second criminal case. No violation of double jeopardy occurred. As
I North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160(1970).
2
explained above, he violated his probationary conditions of his original suspended sentence
when he committed another crime. Merrill was only charged with failure to provide notice
of change of residence in the second criminal proceeding.
Moreover, Merrill waived such constitutional challenges when he entered into a plea
agreement with the State. "[A] defendant waives the right to appeal all nonjurisdictional
defects upon voluntarily and knowingly entering a guilty plea, including claims of
constitutional violations which may have occurred prior to the plea." State v. Pavey,2010
MT 104, ¶ 11, 356 Mont. 248, 231 P.3d 1104 (citing State v. Violette, 2009 MT 19, P 16,
349 Mont. 81, 201 P.3d 804).
Merrill is not entitled to release or the dismissal of charges. He has not shown that
his incarceration is illegal. Section 46-22-101(1), MCA. He has not demonstrated that he
is entitled to more credit for jail time served. The District Court awarded him credit
appropriately in each case. Merrill's sentences run concurrently, and some ofthe credit for
time served may merge, or be added together, upon DOC's sentence calculation. Section
46-18-403(4), MCA;State v. Tracy, 2005 MT 28,1 27-28, 327 Mont. 220, 113 P.3d 297.
We point out that Merrill has not included a copy of any sentence calculation.
Merrill's other claims are outside the scope of habeas corpus.
IT IS ORDERED that Merrill's Petition for a Writ of Habeas Corpus is DENIED.
The Clerk is directed to provide a copy ofthis Order to counsel ofrecord, to Sheriff
Vern Burdick, and to Scott Lane Merrill personally.
DATED this Q
(13.'. day of March, 2021.
Chief Justice
3
4