Opinion
OP 21-0558
01-18-2022
TYREE KILO SELAGE, Petitioner, v. TOM GREEN, Warden, Dawson County Correctional Facility, Glendive, Respondent.
ORDER
Self-represented Petitioner Tyree Kilo Selage has filed a Petition for Writ of Habeas Corpus, asserting he is due credit for time served from February 28, 2016 to September 27, 2016. In its response, the State concedes Selage is due credit for some time served.
While on conditional release related to a prior offense in Missoula County, Selage was arrested for felony driving under the influence of alcohol (DUI) on February 28, 2016. At that time, he was also issued two citations-one for operating a motor vehicle without liability insurance in effect and one for driving while the privilege to do so is suspended or revoked. At his initial appearance, the Justice Court set bond at $10,000. Selage did not post the bond. On March 11, 2016, Selage was charged via Information with felony DUI, the two misdemeanors reflected in the prior citations, and an additional misdemeanor for obstructing a peace officer. The District Court maintained the $10,000 bond previously set. Selage never posted the bond, and the bond was never reduced or quashed. Pursuant to a Plea Agreement, Selage agreed to enter nolo contendere pleas to all charged offenses. At the plea change hearing on June 8, 2016, Selage pled guilty to the felony DUI and misdemeanor obstructing charges. On October 3, 2016, the Third Judicial District Court, Anaconda-Deer Lodge County, issued its Judgment convicting Selage of all charged offenses. The court sentenced him to a five-year term with the Department of Corrections (DOC) on the felony DUI, to run consecutively to a prior sentence, and to a concurrent six-month sentence for the obstructing a peace officer offense.
It is unclear as to the resolution of the driving while license suspended or revoked and operating a motor vehicle without liability insurance in effect offenses as the Judgment provides no sentence for these offenses and inadequately describes the outcome: "Pursuant to the plea agreement, Count II: Driving a Motor Vehicle While Privilege To Do So Is Suspended or Revoked, a misdemeanor, in violation of § 61-5-212, MCA (2015), and Count III: Operating a Motor Vehicle Without Liability Insurance in Effect (Required Motor Vehicle Insurance), 1st offense, a misdemeanor, in violation of §61-6-301 MCA (2015)." The outcome of these offenses, however, is not relevant to Selage's claim here.
Selage asserts he was held on a bailable offense and that he did not post the $50,000 bond. He includes copies of the sentencing judgment and sentence calculation. In 2020, Selage provides he moved the District Court for relief which was denied, specifically, to amend his sentencing judgment, pursuant to § 46-18-403(1), MCA. Selage asserts, under State v. Hornstein, 2010 MX 75, 356 Mont. 14, 229 P.3d 1206, he is due 212 days credit for time served. The State distinguishes Hornstein, which concerned a parole revocation as well as the difference between jail time served and dead time, Hornstein, ¶¶ 16-18, and instead likens this matter to Brasda v. Kaululaau, No. OP 19-0286, 398 Mont. 447, 454 - P.3d 630, 2019 Mont. LEXIS 929, Order (Nov. 19, 2019). The State does concede Selage is due some additional credit for time served.
Selage mistakenly asserts bond to have been set at $50,000 when it was in fact set at $10,000. Regardless, Selage never posted any bond.
Our recent holding in Killam v. Salmonsen, 2021 MT 196, 405 Mont. 143, 492 P.3d 512, is instructive on the determination of credit for time served. "By its plain language, § 46-18-403(1), MCA, leaves no discretion to the sentencing court to determine whether a defendant incarcerated on a bailable offense receives credit for incarceration time prior to or after conviction." Killam, ¶ 14 (footnote omitted). Thus, the better practice, especially in light of Killam and Mendoza, [ ] is to award credit for time served based solely on the record in the case of the offense for which the defendant is being sentenced.
State v. Mendoza, 2021 MT 197, ¶ 7, 405 Mont. 154, 492 P.3d 509, fn. 2.
Here, the record indicates Selage was arrested on February 28, 2016, bond was set at $10,000, bond was never reduced or quashed, Selage never posted any bond, and Selage remained incarcerated from the date of his arrest on February 28, 2016 through his sentencing on September 27, 2016. Thus, based on the record in this case, Selage is entitled to credit for time served from the date of arrest to the date of his sentencing. Selage has thus demonstrated his sentence is illegal because he has not received all the credit he is due from his arrest to his sentencing. Section 46-22-101(1), MCA. We conclude he is due credit for time served from his arrest on February 28, 2016, until his sentencing in open court on September 27, 2016, for his DUI offense in District Court, or 212 days. Therefore, based on the foregoing, when one portion of the sentence is illegal, it is better to remand the matter. State v. Heafner, 2010 MT 87. ¶ 11, 356 Mont. 128, 231 P.3d 1087. Accordingly, IT IS ORDERED that Selage's Petition for Writ of Habeas Corpus is GRANTED and that Selage's underlying criminal case (Cause No. DC-16-19) is REMANDED to the Third Judicial District Court, Anaconda-Deer Lodge County, for the limited purpose of amending the judgment to reflect 212 days of credit for time served.
The Clerk of the Supreme Court is directed to provide a copy of this Order to the Honorable Ray Dayton, Third Judicial District Court; to Susie Krueger, Clerk of District Court, Anaconda-Deer Lodge County, under Cause No. DC-16-19; to counsel of record; and to Tyree Kilo Selage personally.