Opinion
OP 24-0036
01-30-2024
BOBBY FRANCIS LOWRY, Petitioner, v. CAPTAIN BRAGG, LEWIS AND CLARK COUNTY DETENTION CENTER, Respondent.
ORDER
Bobby Francis Lowry has filed a Petition for Writ of Habeas Corpus, indicating that he is entitled to more jail time credit than he received. Lowry provides copies of the first page of two pre-sentence investigation reports.
Lowry is in the Lewis and Clark County Detention Center for other pending criminal matters.
Lowry lists the chronology of his older cases. Lowry provides that the State of Montana charged him on December 21, 2015, and that he was arrested in Farmington, New Mexico on March 6, 2016. He adds that he arrived in Bozeman about a month later, or April 7, 2016, and the Gallatin County District Court sentenced him on May 16, 2017. Lowry states that the State charged him in another case on April 26,2016, and the District Court sentenced him on August 18,2017. Citing to § 46-18-403, MCA, he asserts that he "should have received credit for time served" in both cases from the time that he was charged until sentencing. '
This Court is familiar with Lowry's history. Since 2017, he has had twenty-four matters, mostly original proceedings, before this Court. Available electronic documents reveal that on May 17, 2017, the District Court sentenced Lowry for felony theft of property by embezzlement to the Department of Corrections (DOC) to a ten-year term with five years suspended. The court awarded 438 days of credit for time served (Cause No. DC-15-341-C) (first sentence). Through counsel, Lowry appealed. State v. Lowry, 2019 MT 191, 397 Mont 11,446 P.3d 1148.
The sentencing date is May 17, not May 16, 2017.
On August 8, 2017, the District Court sentenced Lowry for promoting prostitution and partner or family member assault, both felonies, to prison for concurrent, five-year terms, to run consecutively to his first sentence (Cause No. DC-16-113-A) (second sentence). The court awarded 387 days of credit for time served. Lowry sought an out-of-time appeal in 2019, and this Court denied his petition. State v. Lowry, No. DA ■ 19-0190, Order (Mont. Apr. 9, 2019). .
Lowry did receive credit for time served in both cases. His attached copies do not provide an accurate accounting of Lowry's time in detention. Lowry is not due time from May 17 to August 8,2017, on his second sentence. Once the court sentenced him for theft on May 17, 2017, Lowry began serving the sentence imposed first. Lowry received 438 days, or from the date of his March 6, 2016 arrest to the sentencing date for his first sentence. The time that he was detained, after May 17,2017, would go to the first sentence until he received his second, consecutive sentence. For his second sentence, the court arrived at 387 days, or from the April 26, 2016 arrest to May 17, 2017.
For his other claim, Lowry is mistaken. Credit for time served commences upon the offender's arrest or service of the arrest warrant on the alleged perpetrator. See Killam v. Salmonsen, 2021 MT 196, ¶¶ 12,17,405 Mont. 143,492 P.3d 512, and State v. Mendoza, 2021 MT 197, 405 Mont. 154, 492 P.3d 509 (the commencement date of credit for time served begins when the offender has been served with an arrest warrant). The District Court awarded him credit for time served upon sentencing in both of his criminal cases. He has not provided any evidence to the contrary or shown that he is due additional credit for the time when he was not held in a jail. Lowry has not demonstrated that he is illegally incarcerated. Section 46-22-101(1), MCA. He is not entitled to habeas corpus relief.
IT IS THEREFORE ORDERED that Lowry's Petition for Writ of Habeas Corpus is DENIED and DISMISSED.
IT IS FURTHER ORDERED that this matter is CLOSED as of this Order's date.
The Clerk is directed to provide a copy of this Order to counsel of record and to Bobby Francis Lowry personally.