Opinion
OP 24-0213
07-16-2024
JARED SUNDOWN HENDRICKSON, Petitioner, v. JAMES SALMONSEN, WARDEN, Montana State Prison,, Respondent.
ORDER
Jared Sundown Hendrickson, via counsel, has filed a Petition for Writ of Habeas Corpus, alleging he is entitled to credit of 1,477 days for time served. Upon review of his Petition and attachments, we deemed it appropriate to request responses from the State of Montana. The State responded and agreed that Hendrickson was due additional credit. However, the State maintains he is entitled to 988 days. At our invitation, Hendrickson filed a reply brief in which he addressed the 489-day discrepancy between their respective positions.
On April 11, 2013, the Lake County District Court sentenced Hendrickson to 20 years, all suspended, on each of four counts of assault with a weapon. The State petitioned to revoke Hendrickson's sentence on August 22, 2018. The District Court revoked Hendrickson's sentence, ultimately issuing an Amended Judgment on October 26, 2018, giving Hendrickson credit for 39 days served.
Hendrickson later moved to correct the Amended Judgment, requesting credit for an additional 245 days. On December 8, 2021, the District Court issued its Order Amending Judgment, in which it gave Hendrickson credit for a total of 284 days served.
Hendrickson, via counsel, has now filed this petition. He explains he was unable to obtain complete probation records prior to filing his motion to correct the Amended Judgment and, upon their receipt, he determined there were 1,477 days where he did not commit a probation violation between November 28, 2013, and February 12, 2018. He argues he is entitled for credit for each of these days pursuant to § 46-18-203(7)(b), MCA, and State v. Jardee, 2020 MT 81, 399 Mont. 459, 461 P.3d 108. Hendrickson admits he is not entitled to credit for every day between those dates as his probation records indicate some violations or alleged violations on certain dates within that timeframe.
In response, the State argues Hendrickson should not get credit for 489 of the days he claims. First, although Hendrickson argues he should receive credit for all but 20 days from July 21, 2014, through January 19, 2015, the State argues Hendrickson is entitled to no credit because he was not registered in Lake County as a violent offender and thus was out of compliance with his sentencing and parole conditions. Hendrickson denies that he' was out of compliance because his Conditions of Probation and Parole did not require him to register as a violent offender. He further points to a Probation and Parole monthly report, filed October 22,2014, which notes that his judgment does not indicate he needs to register,' but indicates Hendrickson "will register anyhow to avoid any possible issues[.]" We thus reject the State's contention that Hendrickson is not entitled to credit for failing to register when the record indicates Hendrickson was not out of compliance for failing to do so. He is thus entitled to the requested 162 days during this timeframe.
The State next asserts Hendrickson should not receive credit for the 36-day period of June 13 through July 19, 2016, because Hendrickson failed to attend a scheduled Probation and Parole appointment and, after his parole officer noted on June 30 that Hendrickson advised him he was taking prescription hydrocodone, Hendrickson did not provide a copy of the prescription until July 19, 2016. Hendrickson replies that he called the Probation and Parole office on June 13, 2016, his subsequent appointments were rescheduled, and he did not receive any reports of violation after that date and through the time that he provided a copy of his prescription. We decline to deny Hendrickson credit for this time as it is not clear any violation occurred. 1
Next, the State argues that Hendrickson should not get credit for August 29 through September 25, 2016. According to the State, Hendrickson failed to call his parole officer as scheduled on August 29, the parole officer called Hendrickson's phone on September 6 but was met by a recorded message stating the "number is not accepting calls," and the parole officer again called Hendrickson on September 13 and instructed Hendrickson to report in person. Henderson did so on September 15, but advised his parole officer he had been charged with driving without insurance or registration. Hendrickson next reported as . required on September 26, 2016.
In reply, Hendrickson argues he is entitled to credit for this time, except for the day on which he was charged with driving without insurance or registration, because he cannot be barred from credit under a "pattern of noncompliance" theory. Jardee, ¶ 11. Hendrickson admits he failed to call his parole officer on August 29, 2016, but he asserts, "this, along with the other notations made by the parole officer, were not violations... that could be counted against him in calculating the credit allowed."
Here, Hendrickson provides no support for his assertion that failing to make a scheduled phone call with his parole officer cannot be counted against him for purposes of calculating time served as he was out of compliance by failing to make his scheduled phone call. Thus, we agree with the State that Hendrickson is not entitled to credit for that day, August 29,2016. However, we disagree with the State that Hendrickson is also not entitled to credit for the following days. Jardee requires an "actual" violation, and the violation . was failing to call on the day scheduled. Jardee, ¶ 11.
Additionally, on September 13, Hendrickson was instructed to report in person but did not do so until September 15, 2016. In Jardee, we concluded Jardee was not entitled to credit when he was out of compliance with his "continuing obligation to report his proper address to probation and parole." Jardee, ¶ 12. Here, although Hendrickson's missed appointments were not ongoing violations of a continuing obligation, where he was directed to report in person and failed to do so for two days, he is not entitled to credit for those two days as he had a continuing obligation to report in person.
The State next asserts that on December 2, 2016, Hendrickson was instructed to report on December 16, 2016, with a daily job log documenting his efforts to secure employment. Hendrickson failed to report on December 16, and next reported on January 9, 2017, at which time the records do not indicate that he remained out of compliance. Hendrickson admits he no-showed his December 16 appointment, but argues that he should get credit for this time because this was not a "reported violation." However, Hendrickson's parole conditions included a requirement that he contact his parole officer as directed. This no-show was an actual violation of the conditions of his parole and he is therefore not entitled to credit for December 16, 2016. However, he is entitled to his requested credit for the remainder of that time period.
The State further argues that Hendrickson should not get credit from May 4 through November 1, 2017. Hendrickson requests credit for some, but not all, of these days. He did not request credit for October 25, 2017. He further admits he failed to report on May 4, 2017, and we agree with the State that he is not entitled to credit for that day, nor is he entitled to credit for September 11,2017, where he similarly failed to report. However, we are unpersuaded by the State's argument that he should receive no credit for the entire sixmonth period. The State rests its position on notes from Hendrickson's parole officer that describe reports the officer received from other people. The notes provide no indicia as to the reliability of those reports: for example, Hendrickson "had been seen" in the company of another felon and "had been seen" smoking meth. Many of these notes do not describe a violation: for example, Hendrickson was "no help" when asked about the whereabouts of a third party.
As Hendrickson asserts in his reply, there is no clear documentation of any violations from May 4 through November 1, 2017, aside from missed appointments. Moreover, in Jardee, ¶ 11, we explained it is insufficient for a district court to deny street time based on a "pattern" of criminal behavior. Rather, the State must "point to an actual violation by the defendant, in the relevant time period, found in the record or recollection of the probation officer, to establish a basis for denial of street time credit for that period[.]" Hendrickson is therefore entitled to credit for the days he claims from May 4 through November 1, 2017, excepting the three days noted above.
The State next argues that Hendrickson is not entitled to any credit after December 6, 2017, because he failed to report as required, admitted to drinking alcohol, and was arrested on hew charges. Alternatively, the State argues that Hendrickson should not receive credit after October 2,2017, because he did not make any restitution payments after that date and he was therefore not in compliance. The State points out that the August' 22, 2018 Report of Violation that ultimately led to the revocation of Hendrickson's sentence lists a compliance violation for failure to make restitution payments since October 2,2017, as Count VII.
Hendrickson admits that on December 7,2017, he smoked meth and is not entitled to credit until December II, 2017, when he returned to compliance by attending his scheduled appointment and admitting to his parole officer that he had violated conditions. Hendrickson also points out that he did not seek credit for January 25 through 30, 2018, because of the violations that the State references. However, he again relies on Jardee, ¶ 11, and asserts he should receive credit for time served on the days where there is no record or recollection of the probation officer to support a denial of credit.
Regarding restitution, Hendrickson asserts he was unable to make payments after October 2, 2017, due to financial hardship. Relying on State v. Puccinelli, 2024 MT 114, 416 Mont. 444, 549 P.3d 441, he argues he thus cannot be considered out of compliance., However, Puccinelli is somewhat distinguishable from Hendrickson's situation. Unlike Hendrickson, Puccinelli moved for modification of restitution under § 46-18-246, MCA. Puccinelli, ¶ 10. We are not persuaded that Hendrickson can rely on financial hardship x when he failed to raise this issue previously. However, similar to Puccinelli, the notes of Hendrickson's parole officer indicate that he never provided Hendrickson with a clear directive as to an adequate monthly payment amount or a monthly due date for these payments. According to the notes, Hendrickson made $100 restitution payments on January 9, February 18, and March 18, 2014. He then made a $50 payment on April 22, 2014. On May 23, 2014, the notes indicate, "[Hendrickson] and I discussed status of his restitution and need to make bigger payments more consistantly [sic]." However, although no payment was recorded in May, there is no record that Hendrickson's probation officer further addressed the matter. On June 20, 2014, Hendrickson made a $70 restitution payment. He then made $100 payments on July 25, August 4, and August 20,2014. From September 2014 through the summer of 2016, he made restitution payments, roughly once a month, that ranged from $20 to $300. After a $20> payment on June 30, 2016,
Hendrickson made no payments for several months. On December 2, 2016, his parole officer noted, "I told him no more excuses" about failing to pay restitution. Hendrickson then made $50 payments on March 15 and May 16, and the aforementioned $200 payment on September 27, 2017-which was apparently recorded as of October 2, 2017. From these notes, it appears that Hendrickson had no set due date or payment amount but was instead expected to pay what he could when he could.
Moreover, if Hendrickson's last restitution payment occurred on October 2, 2017, ■ he was not out of compliance on October 3,. as the State suggests, but would remain in compliance until he failed to make the next payment on its due date and in the required amount. On December 11, 2017, his parole officer noted, "We discussed him making payments and [Hendrickson] said he has no money until he gets a job but he is struggling to find one. [Hendrickson] will need to explain this to reentry." This is the first instance after October 2, 2017, in which Hendrickson's parole officer makes any reference to restitution. The note does not demonstrate that Hendrickson's parole officer did anything other than bring the matter to Hendrickson's attention; there is no indication that he set a deadline for payment or implemented any corrective measures in the Montana Incentives/Interventions Grid (MUG). Thus, although Hendrickson did not pay further restitution after October 2,2017, the State cannot point to an "actual violation ... found in the record or recollection of the probation officer" because the record does not contain any indication as to the point at which the lack of restitution payment became a violation.
Barring some exceptions not applicable here, every person imprisoned or otherwise restrained of liberty within this state may prosecute a writ of habeas corpus to inquire into the cause of imprisonment or restraint and, if illegal, to be delivered from the imprisonment or restraint. Section 46-22-101(1), MCA. The very purpose of habeas corpus is to remedy illegal imprisonment, including remedying a sentence which exceeds statutory or constitutional limits. Lott v. State, 2006 MT 279, ¶ 20, 334 Mont. 270, 150 P.3d 337. Confinement beyond the expiration of a sentence is an unlawful imprisonment or restraint, and habeas corpus actions are a proper means of challenging the proper crediting for time served. Killam v. Salmonsen, 2021 MT 196, ¶ 12, 405 Mont. 143, 492 P.3d 512 (citation omitted). The petitioner in a habeas proceeding bears the burden to convince the Court that a writ should issue. Miller v. Eleventh Jud. Dist. Ct., 2007 MT 58, ¶ 14, 336 Mont. 207, 154P.3d 1186.
In this instance, the record demonstrates that Hendrickson is entitled to more credit for time served than the District Court awarded in his case, albeit slightly less than the 1,477 days requested. As set forth above, we have determined that Hendrickson is entitled to 1,471 days.
IT IS THEREFORE ORDERED that Hendrickson's Petition for Writ of Habeas Corpus is GRANTED in part. This matter is REMANDED to the Twentieth Judicial District Court, Lake County, to include credit for time served in the amount of 1,471 days.
The Clerk of the Supreme Court is directed to provide a copy of this Order to all counsel of record and to Jared Sundown Hendrickson personally.