McCulley v. Hash

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SHAWN MCCULLEY, Petitioner, v. CAPTAIN HASH, MISSOULA ASSESSMENT AND SANCTION CENTER, Respondent.

No. OP 23-0547

Supreme Court of Montana

November 7, 2023

ORDER

Appearing as a self-represented Petitioner, Shawn McCulley has filed a Petition for Writ of Habeas Corpus, claiming that he is entitled to more credit for time served than what he received. In compliance with this Court's October 4, 2023 Order, the State responds and agrees with McCulley in part. .

The State provides more details about McCulley's sentencing history that we summarize here. The Seventh Judicial District Court, Prairie County, initially sentenced McCulley for felony criminal endangerment and felony partner or family member assault (PFMA), pursuant to a plea agreement, in July 2015. McCulley received an eight-year, suspended term for criminal endangerment to the Department of Corrections (DOC) and a concurrent, suspended one-year jail term for PFMA. The court awarded thirty-three days of credit for time served.

A few months later, McCulley violated the terms of his suspended sentence. The District Court revoked his suspended sentences and imposed an eight-year, DOC term with . four years suspended as well as a concurrent suspended one-year jail term. The court gave McCulley seventy-five days of credit for time served. McCulley discharged the four-year DOC commitment on October 9, 2019.

Within a month, McCulley again violated his probationary conditions and also, committed another felony PFMA, resulting in a new criminal case. The State sought revocation. The District Court conducted a combined revocation and change of plea hearing on May 12, 2020. On June 23, 2020, in open court, the District Court revoked his = suspended sentence for felony criminal endangerment and imposed a four-year sentence (sentence upon revocation). The written judgment for this sentence upon revocation did not mention the court's oral pronouncement that McCulley was not entitled to elapsed time credit or list any credit for actual time. served prior to disposition. In the new case the District Court accepted McCulley's guilty plea to PFMA and sentenced him to the DOC for a four-year term, to run concurrently with his sentence upon revocation. The court awarded ninety-nine days of credit.

McCulley asks the Court to order that the DOC recalculate his sentence. Citing Montana case law, McCulley posits that a violation of rights occurs when an offender receives credit for time served on only one concurrent sentence and not on both. See State v. Kortan, 2022 MT 204, 410 Mont 336, 518 P.3d 1283. He claims he is due ninety days of credit, along with street time credit. He also indicates that his sentence violates the right to be free from double jeopardy. McCulley provides no supporting documents.

The State agrees that McCulley is entitled to credit for time served against his sentence upon revocation but contends that he is not entitled to elapsed time credit. The State points out that, though it sought revocation on December 12, 2019 the State did not request a bench warrant for McCulley. McCulley was arrested on March 26, 2020, following his absconding from supervision and the court's issuance of a bench warrant. The State calculates that McCulley remained incarcerated for ninety days from March 26 until the June 24, 2020 dispositional hearing.^[1]

The State posits that McCulley is not entitled to any credit for street time or elapsed...