Opinion
OP 23-0259
05-30-2023
GUADALUPE PABLO GALICIA, SR., Petitioner. v. JIM SALMONSEN, Warden. Montana State Prison, Respondent.
ORDER
Guadalupe Pablo Galicia Sr. has filed a Petition for Writ of Habeas Corpus, requesting the award of credit for time served in his two criminal cases from the Eighth Judicial District Court. Cascade County. The State of Montana responds that this Court should grant Galicia's Petition in part to amend the written judgments and sentences, reflecting awards of credit for time served.
Both the State and Galicia provide background information that we summarize. On December 26, 2018. the State charged Galicia with felony assault with a weapon, and the District Court issued an arrest warrant. The State amended the charges to include additional felonies during the next eighteen months. On December 19, 2019, Galicia was charged in his second case with felony aggravated assault by accountability, and the court issued an arrest warrant. Several days later, the State charged him with three additional felonies in a third criminal case. In September 2020. the State and Galicia entered into a plea agreement for all cases whereby he would enter guilty pleas in the two initial cases in exchange for dismissal of his third criminal case.
On November 25, 2020. the District Court sentenced Galicia to the Montana State Prison for a ten-year term with five years suspended for aggravated kidnapping and a concurrent, suspended five-year term for failure to register as a violent offender (hereinafter first sentence). The court declined to award credit for time served. On January 13, 2021, the District Court committed Galicia to the Department of Corrections for a concurrent, three-year term for felony aggravated assault by accountability (second sentence). The District Court did not mention credit for time served.
Galicia explains that he was a parolee when he was arrested on December 12, 2019, for violation of his parole, and pending disposition of his first criminal case. He adds that he was also arrested for new charges. Galicia notes that he was unable to post bond in his cases and that his first sentence does not provide any credit for time served, even though his counsel requested 671 days of credit for time served in jail. Galicia explains that the final judgment for his second sentence did not include any credit.
Both the State and Galicia provide that he was in custody following his arrests, at the time of his change of plea hearings, and until sentencing. The State agrees that Galicia is entitled to credit for time served for his first and second sentences. State v. Pitkanen, 2022 MT 231, ¶ 25,410 Mont. 503, 520 P.3d 305 (citations omitted). The State calculates that for his first sentence (Cause No. ADC-18-826), Galicia is entitled to 670 days from the January 25, 2019 warrant's service date to the November 25, 2020 sentencing date. Further, the State notes that Galicia should be awarded 387 days toward his second sentence because that is the time between his December 23, 2019 arrest until the January 13, 2021 sentencing (Cause No. DDC-19-904).
Given that a portion of Galicia's first and second sentences are illegal, we conclude that remanding his underlying matters to the District Court is proper. State v. Heafner, 2010 MT 87, ¶ 11, 356 Mont. 128, 231 P.3d 1087. The District Court should amend both written judgments to award credit for time served. Accordingly, IT IS ORDERED that:
1. Galicia's Petition for Writ of Habeas Corpus is GRANTED in part and Galicia's underlying criminal matter, Cause No. ADC-18-826, is REMANDED to the Eighth Judicial District Court, Cascade County, to amend its November 25,2020 Sentence, Order to Close File, and Order Exonerating Bond, to reflect credit for time served of 670 days from January 25, 2019 to November 25, 2020;
2. Galicia's Petition for Writ of Habeas Corpus is GRANTED in part and Galicia's underlying criminal matter, Cause No. DDC-19-904. is REMANDED to the Eighth Judicial District Court, Cascade County, to amend its January 13, 2021 Judgment of Conviction and Sentencing Order, to reflect credit for time served of 387 days from December 23, 2019 to January 13. 2021; and
3. this matter is CLOSED as of this Order's dale.
The Clerk of the Supreme Court is directed to provide a copy of this Order to: the Honorable David J. Grubich. District Court Judge; the Honorable John W. Parker. District Court Judge: Tina Henry. Clerk of District Court. Cascade County, under Cause Nos. ADC-18-826 and DDC-19-904: counsel of record, and Guadalupe Pablo Galicia Sr. personally.