Opinion
OP 22-0164
06-21-2022
DONALD McCUBBINS, Petitioner, v. JIM SALMONSEN, Warden, Montana State Prison, Respondent.
ORDER
Representing himself, Donald McCubbins has filed a Petition for Writ of Habeas Corpus, explaining that the Broadwater County District Court did not award credit for time served on a sentence because the court noted that McCubbins was a parole violator. McCubbins states that on November 23, 2020, he was arrested in Broadwater County on a warrant for a parole violation and that he entered a guilty plea to criminal possession of dangerous drugs, receiving a five-year prison term, in April 2021. He believes he is entitled to credit for time served from November 23, 2020 to April 2, 2021. The Department of Corrections (Department or DOC) concedes, after consulting with the Attorney General's Office and the Broadwater County Attorney's Office, that McCubbins is entitled to 130 days of pretrial detention credit for those dates as applied to his sentence from Broadwater . County District Court (Cause No. CDC-2020-56). The Department of Corrections concludes that remand to the District Court is appropriate for amending its Judgment and Commitment.
We briefly address McCubbins's claim about receiving a total credit on both of his sentences from Broadwater County. McCubbins also has a five-year prison term for the conviction of felony tampering with or fabricating physical evidence where the Broadwater County District Court awarded him 174 days of credit for time served. The court ran this second sentence concurrently with his sentence at issue. Any credit that McCubbin received on each sentence would merge after re-calculation of his sentences following amendment of the Judgment and Commitment. See State v. Tracy, 2005 MT 128, ¶ 27, 327 Mont. 220, 113 P.3d 297.
The total credit would be 304 days, not the 410 days he asserts.
Given the foregoing, therefore, it is appropriate to remand the matter. State v. Heafner, 2010 MT 87, ¶ 11,356 Mont 128,231 P.3d 1087.
IT IS ORDERED that McCubbins's Petition for Writ of Habeas Corpus is GRANTED in part and McCubbins's underlying matter is REMANDED to the First Judicial District Court, Broadwater County, to amend its May 21, 2021 Judgment and Commitment to include credit for time served from November 23, 2020 to April 2, 2021.
IT IS FURTHER ORDERED that McCubbins's other claims are DENIED.
The Clerk is directed to provide a copy of this Order to: the Honorable Mike Menahan, First Judicial District Court; Valerie Hornsveld, Clerk of District Court, Broadwater County, under Cause No. CDC-2020-56; counsel of record; and Donald McCubbins personally.