Opinion
OP 22-0751
02-21-2023
MARSHALL BRADLEY ROWE, Petitioner, v. SGT. BRADLEY BRAGG, Lewis &Clark County Detention Center, and Administrator BOB OLSON, S.T.A.R.T., Respondents.[1]
ORDER
Marshall Bradley Rowe has filed a Petition for Writ of Habeas Corpus, asserting that his sentence calculation is in error because his sentences do not all run concurrently as the courts have ordered. Rowe has also filed supplemental documents, including a sentence calculation and sentencing judgments. Counsel for the Department of Corrections (the Department or DOC) has filed a response, as ordered by this Court, and explains that the DOC correctly calculated Rowe's sentences.
We summarize Rowe's criminal history. In the Lewis and Clark County District Court, Rowe appeared for sentencing in November 2018, after the court accepted his guilty plea to felony theft. The District Court deferred the imposition of a two-year sentence (Cause No. ADC 2018-193). The court later amended its judgment to award the credit for time served in case of revocation. On March 20, 2019, the court held a hearing to revoke the deferred sentence and imposed a six-year sentence with three years suspended to DOC (sentence upon revocation). The court also noted his 2018 credit for time served as well as his 2019 award. Additionally, on that same day, the District Court sentenced Rowe in a separate proceeding for his conviction of criminal possession of dangerous drugs to the DOC for a five-year term with two years suspended (Cause No. ADC 2019-55 or the possession sentence). The court awarded credit for time served during 2019. The court ran the possession sentence concurrently with his sentence upon revocation.
On April 29, 2019, the Yellowstone County District Court sentenced Rowe for three years to the DOC for felony criminal possession of dangerous drugs. The court specifically stated that the sentence will run concurrently with the possession sentence. The court did not mention Rowe's sentence upon revocation.
Rowe contends that his two sentences from the Lewis and Clark County District Court do not run concurrently in the sentence calculation as ordered by the court. He; requests that the DOC "correct its error in calculating" his "concurrent sentences in cause number ADC-2018-193, and cause number ADC-2019-55[.]" This Court observes that Rowe only mentions two sentences, while he has a sentence from the Yellowstone County District Court.
The Department puts forth that the DOC has correctly calculated Rowe's sentences according to the written judgments received from the two sentencing courts. The Department points out that the Montana State Prison Records Department calculated all three of his sentences on September 11, 2019. The Department explains that the unsuspended portion of Rowe's sentence upon revocation runs concurrently with the possession sentence. Allowing for credit for time served, the Department states that' Rowe's sentence upon revocation commences on December 2, 2018, or 108 days prior to his sentencing date, and discharges on December 1, 2021. The Department provides that Rowe's possession sentence discharges on February 9, 2022, or three years after the sentence commencement of February 10, 2019. Addressing his sentence from Yellowstone County, the Department further provides that both the plea agreement and the written judgment are silent about the sentence upon revocation. Pursuant to § 46-18-401 (4), MCA, the Department submits that the sentence from Yellowstone County must run consecutively to his sentence upon revocation. The Department concludes that Rowe's Petition should be denied because the sentence calculation does not unlawfully extend Rowe's incarceration.
This Court finds the Department's arguments dispositive. As provided, § 46-18401(4), MCA, states that "[s]eparate sentences for two or more offenses must run consecutively unless the court otherwise orders." Rowe's sentence from Yellowstone County runs consecutively to his sentence upon revocation, yet concurrently with the possession sentence. Contrary to his claim, Rowe's sentence upon revocation runs concurrently with the possession sentence. Rowe's sentences are valid, and the DOC has correctly calculated them. Rowe has not demonstrated illegal incarceration. Section 4622-101(1), MCA. Accordingly, IT IS ORDERED that Rowe's Petition for Writ of Habeas Corpus is DENIED and DISMISSED.
The Clerk is directed to provide a copy of this Order to: Sargeant Bradley Bragg; Administrator Bob Olson, S.T.A.R.T.; counsel of record, and Marshall Bradley Rowe personally.