Opinion
OP 22-0751
03-28-2023
MARSHALL BRADLEY ROWE, Petitioner, v. SGT. BRADLEY BRAGG, Lewis & Clark County Detention Center, and Administrator BOB OLSON, S.T.A.R.T., Respondents.
ORDER
Counsel for the Office of Public Defender, Appellate Defender Division, has filed a Petition for Rehearing of this Court's February 21, 2023 Order denying habeas corpus relief to self-represented Petitioner Michael Bradley Rowe because the Order "conflicts with a statute or controlling decision not addressed by the supreme court[,]" pursuant to M. R. App. P. 20(1)(a)(iii). Counsel points out that it contacted the Department of Corrections (Department or DOC) about this instant Petition because the Department had filed a response previously in this matter. Counsel notes that the Department takes no position. We amend the caption to include the Program Administrator for S.T.A.R.T., where Rowe is currently incarcerated.
In the previous Order, this Court concluded that the DOC had calculated Rowe's sentences correctly according to the written judgments. This conclusion was in error. Rowe's sentences could not have been calculated correctly because Rowe's most recent sentencing Judgment was not clear. Rowe's three sentences should all run concurrently as put forth in the Petition for Rehearing and as explained below.
Rowe had three sentences imposed in 2019. On March 20, 2019, the Lewis and Clark County District Court imposed a six-year sentence with three years suspended to DOC after revoking his initial deferred imposition of sentence (Cause No. ADC 2018-193 or sentence upon revocation). The Lewis and Clark County District Court also sentenced Rowe in a separate proceeding to the DOC for a five-year term with two years suspended (Cause No. ADC 2019-55 or the possession sentence). The District Court ran the two sentences concurrently. On April 29, 2019/ the Yellowstone County District Court sentenced Rowe for three years to the DOC for felony criminal possession of dangerous drugs (Cause No. DC 18-1391). 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 provides that when the Lewis and Clark County District Court ran his two sentences concurrently, the two sentences became one, or a single entity, due to merger. Rowe explains then that the sentence upon revocation and the possession sentence are one sentence. Pointing to recent case law, Rowe states that even unrelated sentences merge.
"Section 46-18-401, MCA, while not artfully drafted, provides that when a judge chooses to exercise his or her discretion to order that sentences for unrelated offenses are to rim concurrently, not consecutively, and the person committed is already serving a sentence, the two terms are merged." State v. Tracy, 2005 MT 128, ¶ 27, 327 Mont. 220, 113 P.3d 297 (superseded by statute as recognized in Barnacascel v. Kirkegard, No. OP 15-0552, 382 Mont. 409, 363 P.3d 1146 (Nov. 17, 2015)). Put simply, unrelated sentences merge when a district court orders that one runs concurrently with the other. See State v. Youpee, 2018 MT 102, ¶ 8, 391 Mont. 246,416 P.3d 1050 (citing Tracy, ¶ 27).State v. Kortan, 2022 MT 204, ¶ 18, 410 Mont. 336, 518 P.3d 1283. Rowe concludes that' the Department's previous response splits the two sentences from the Lewis and Clark County District Court, contrary to either court's intention upon sentencing.
Rehearing is warranted in this original proceeding. In its May 13, 2019 Judgment, the Yellowstone County District Court ordered that Rowe's three-year sentence would "run concurrently with Lewis and Clark County Cause ADC 19-55." The Records Department at the Montana State Prison calculates sentences based upon what is stated in the written judgment. Page 2 of the court's Judgment should be amended to reflect the concurrent, merged nature of Rowe's two sentences from the Lewis and Clark County District Court:
IT IS ORDERED that for COUNT I: CRIMINAL POSSESSION OF DANGEROUS DRUGS (FELONY) the Defendant is committed to the Department of Corrections under § 46-18-201, MCA, for THREE (3) YEARS, to run concurrently with Lewis and Clark County Cause ADC 19-55 and ADC 18-193 .(Emphasis added.) Therefore, IT IS ORDERED that Rowe's Petition for Rehearing concerning his writ for habeas corpus relief is GRANTED and Rowe's underlying criminal matter, Cause No. ADC-181391, is REMANDED to the Thirteenth Judicial District Court, Yellowstone County, to AMEND its Judgment as delineated above.
The Clerk of the Supreme Court is directed to provide a copy of this Order to: the Honorable Donald L. Harris, District Court Judge: Terry Halpin, Clerk of District Court, under Cause No. ADC-18-1391; counsel of record; Michelle McKinnon, Records Department; Montana State Prison. Bob Olson, Administrator, and Marshall Bradley Rowe personally.