Opinion
OP 22-0564
11-15-2022
MICHAEL BRADLEY BURTON, Petitioner, v. TOM GREEN, Warden, Respondent.
ORDER
Michael Bradley Burton has filed a Petition for Writ of Habeas Corpus, alleging he is due either 105 or 106 days of credit for time served from his arrest on February 23, 2022 until June 8, 2022. In compliance with this Court's Order, the Attorney General (the State) responds that Burton is entitled to 64 days additional days of credit, from March 15, 2022 to May 18, 2022.
The State charged Burton originally with two counts of burglary, two counts of burglary while accountability exists, four counts of felony theft, and two counts of criminal mischief for offenses committed in September and October 2008. The State and Burton entered into a binding plea agreement, wherein Burton pleaded guilty to two counts of felony burglary and two counts of felony theft. In exchange, the State moved to dismiss the other charges and did not pursue a persistent felony offender designation. On February 18, 2009, the Glacier County District Court sentenced Burton to the Montana State Prison for concurrent terms of twenty years, with ten years suspended for each conviction. Burton did not appeal.
On November 8, 2021, Burton started serving the suspended portion of his sentence and was under the Probation and Parole Officer's supervision in Billings. On February 23, 2022, law enforcement officers arrested Burton on a new charge. On March 11, 2022, the State filed a petition to revoke Burton's sentence in Glacier County District Court, and a warrant for arrest was issued three days later. On March 15,2022, the Yellowstone County Sheriffs Office returned the warrant, stating that Burton was in custody in that county. On May 18, 2022, Burton appeared for his revocation hearing, and the District Court revoked his suspended sentence, imposing a prison term of nine years and 259 days (allowing for his original credit). However, the District Court did not award Burton any credit for time served.
In his Petition, Burton argues he is entitled to more credit for time served on his sentence upon revocation from the Glacier County District Court. Burton includes a copy of a sentence calculation, reflecting zero days of credit for time served. He states he was arrested on February 23, 2022, for felony partner or family member assault - strangulation, and argues for the entire time from that point until June 8, 2022, when he was transported to the prison's Martz Diagnostic Intake Unit. Burton also raises claims of ineffective assistance of counsel, of a facially invalid sentence, and for relief from multiple charges.
The State concedes that Burton is entitled to some additional credit. Starting with the service date of the arrest warrant on Burton, March 15, 2022, the State explains that Burton's detention for his probation violations began at that point for his sentence from Glacier County, not his arrest for another offense in Yellowstone County, and that he did not post bond. The State provides that his revocation proceeding occurred on May 18, 2022, and that Burton is only entitled to credit from March 15 to May 18, 2022, or sixty-four days. The State explains that Burton is not entitled to any credit after the date of his revocation when he began serving his custodial sentence. Section 46-18-203 (7)(b), MCA. The State concludes that Burton's other claims go to the validity of his 2009 convictions and are not remedied by habeas corpus relief. Section 46-22-101(2), MCA. See also Burton v. Seifert, No. OP 22-0285, Order (Mont. Aug. 16, 2022).
We find the State's concession dispositive. Burton is entitled to credit for time served of sixty-four days as applied to his sentence upon revocation. Burton's other claims are not remedied by habeas corpus. Section 46-22-101(1), MCA. Therefore, having concluded that a portion of Burton's sentence is facially invalid, we agree that remand to the District Court is appropriate for correction. State v. Heafner, 2010 MT 87, ¶ 11, 356 Mont. 128, 231 P.3d 1087.
IT IS ORDERED that Burton's Petition for Writ of Habeas Corpus is GRANTED IN PART. Burton's underlying criminal matter is REMANDED to the Ninth Judicial District Court, Glacier County, to amend its June 2, 2022 Order Revoking Suspended Sentence and Judgment by including credit of sixty-four (64) days for time served from March 15, 2022 to May 18, 2022.
IT IS FURTHER ORDERED that Burton's remaining claims in his Petition for Writ of Habeas Corpus are DENIED and DISMISSED.
The Clerk of the Supreme Court is directed to provide a copy of this Order to: the Honorable Robert Olson, District Court Judge; Twila Pyette, Clerk of District Court, Glacier County, under Cause No. DC-08-51; counsel of record, and Michael Bradley Burton personally.
The Clerk is also directed to close this case as of this Order's date.