State v. F. Day

Opinion

08/04/2026

DA 24-0556 Case Number: DA 24-0556

IN THE SUPREME COURT OF THE STATE OF MONTANA

2026 MT 183N

STATE OF MONTANA,

Plaintiff and Appellee,

v.

FREDERICK CHARLES DAY,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. CDC-14-539 Honorable John A. Kutzman, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Tammy A. Hinderman, Appellate Defender Division Administrator, Anthony Reed, Assistant Appellate Defender, Helena, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Selene Koepke, Assistant Attorney General, Helena, Montana

Joshua A. Racki, Cascade County Attorney, Kory Larsen, Deputy County Attorney, Great Falls, Montana

Submitted on Briefs: July 1, 2026 Decided: August 4, 2026

Filed:

__________________________________________ Clerk Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2 Frederick Charles Day appeals from the July 24, 2024 Disposition Order, Judgment,

Bond Exoneration, & Order to Close issued by the Eighth Judicial District Court, Cascade

County, entered upon revocation of his suspended sentence. We affirm.

¶3 On appeal, Day raises two issues: (1) whether the District Court illegally sentenced

Day when it failed to award him approximately 524 additional days of elapsed time

credit—primarily for the period while his first petition to revoke was pending and from

December 14, 2022, until his first recorded violation on July 18, 2023; and (2) alternatively,

whether his counsel rendered ineffective assistance by failing to challenge the State’s

calculation of elapsed time credit.

¶4 In 2014, Great Falls Police conducted a sting operation which resulted in Day being

charged with Prostitution, or in the alternative Attempted Prostitution. Day entered a plea

agreement and on April 22, 2016, pled guilty to Attempted Prostitution. He was sentenced

August 26, 2016, to 25 years to the Montana Department of Corrections (DOC) with all

but 5 years suspended, and ordered to remain in secure custody until completing phases

one and two of sex offender treatment. On appeal of this sentence, we reversed and

remanded for resentencing—holding the sentence illegal as conditioning release on

2 completion of sex offender treatment improperly imposed a parole restriction on a DOC

sentence. State v. Day, 2018 MT 51, ¶¶ 10-11, 390 Mont. 388, 414 P.3d 267.

¶5 On remand, by the date of resentencing, Day had completed both phases of sex

offender treatment and been released. The District Court resentenced him to 25 years DOC

with all but 5 years suspended and awarded 817 days of credit for time served. Day was

released to parole on August 14, 2018, and began the suspended portion of his sentence on

June 19, 2021.

¶6 On June 25, 2021, Probation Officer Tim Hides filed an Affidavit in Support of

Petition for Revocation of Order of Suspended Sentence (1st Affidavit) and a Report of

Violation. The affidavit alleged eight violations, including a new felony prostitution

charge on June 23, 2021. On June 29, 2021, the State filed a Petition for Revocation of

Suspended Sentence (1st PTR). Day remained under supervision while the petition was

pending. Nearly a year later, on May 4, 2022, the State moved to dismiss the 1st PTR, as

the court had dismissed the new charge which was the basis for the revocation.

¶7 On December 16, 2022, Hides filed another Affidavit in Support of Petition for

Revocation of Order of Suspended Sentence (2nd Affidavit), alleging four violations in

mid-December 2022. The 2nd Affidavit recommended 535 days of street-time credit,

including the period while the 1st PTR was pending. The State did not file a petition to

revoke based on the 2nd Affidavit, and the District Court never adjudicated those

allegations.

¶8 On August 8, 2023, Hides filed a third Affidavit in Support of Petition for

Revocation (3rd Affidavit) and the State filed a second Petition for Revocation of

3 Suspended Sentence (2nd PTR). The 3rd Affidavit alleged seven violations occurring

between July 18, 2023, and August 4, 2023. The 3rd Affidavit also provided a new

calculation of elapsed time credit: “Street Time Credit: 06/15/2021-06/21/2021-6;

04/30/2022-12/14/2022-229” for a total of 235 days. This calculation excluded credit for

the time the 1st PTR was pending and denied credit for any time after December 14, 2022.

¶9 Between October 2023 and March 2024, Hides filed four addenda alleging

additional violations in October 2023, February 2024, and March 2024. On June 25, 2024,

the District Court held an evidentiary and dispositional hearing on the 2nd PTR, addressing

only the 3rd Affidavit and its four addenda. Day admitted or admitted with explanation to

twelve of nineteen allegations; the State dismissed the remaining seven. Hides testified

that Day should receive 105 days of time-served credit but could not recall the exact

street-time calculation. The prosecutor asked, “was it 235 days that you calculated with

Mr. Larson?” Hides responded, “that sounds about right.” No party elicited further detail

on how the 235 days were calculated.

¶10 The State recommended revocation and imposition of a 20-year DOC sentence with

10 years suspended, 105 days of credit for time served, and 235 days of elapsed time credit.

Defense counsel argued for continuation of the suspended sentence with placement in a

DOC program under § 46-18-203(7)(a)(ii)(B), MCA (2023),1 emphasizing Day’s need for

treatment. When asked about credit, counsel stated: “I do not dispute the credit for time

served figures, nor the street time figures offered by the State. So, no objection to those

1 Unless otherwise noted, all statutory references are to the 2023 version in effect at the time of revocation. 4 figures, your Honor.” Later, when the court asked whether its result or conditions were

illegal, counsel replied, “it’s legal, yes.” The District Court revoked Day’s suspended

sentence and resentenced him to 20 years DOC with 10 years suspended, awarding

105 days of time-served credit and 235 days of elapsed time credit, consistent with the

State’s recommendation.

¶11 Day now asserts he is entitled to a total of 759 days of elapsed time credit, rather

than the 235 days awarded. He calculates 759 days from June 19, 2021, when his

suspended sentence began, to July 18, 2023, the date of his first admitted violation in the

3rd Affidavit. He acknowledges the 105 days of time-served credit awarded after July 18,

2023, but contends the District Court wrongfully denied 524 days of elapsed time credit:

(1) the period while the 1st PTR was pending, and (2) the period from December 14, 2022

(the first alleged violation in the 2nd Affidavit) until July 18, 2023.

¶12 Day argues that under § 46-18-203(7)(b), MCA, and this Court’s decisions in State

v. Jardee, 2020 MT 81, 399 Mont. 459, 461 P.3d 108; State v. Gudmundsen, 2022 MT 178,

410 Mont. 67, 517 P.3d 146; and State v. Charles, 2025 MT 58, 421 Mont. 210, 565 P.3d

1191, he is entitled to credit for all elapsed time served without recorded violations,

including periods while a petition to revoke is pending. He contends the District Court’s

failure to award the additional 524 days rendered his sentence illegal and reviewable under

State v. Lenihan, 184 Mont. 338, 602 P.2d 997 (1979). Alternatively, he claims his counsel

was ineffective for failing to independently calculate and request the additional elapsed

time credit.

5 ¶13 The State, relying on Williams v. Green, 2025 MT 102, 422 Mont. 17, 568 P.3d 549,

and State v. Pajnich, 2025 MT 101, 422 Mont. 12, 568 P.3d 562, responds that Day waived

any challenge to the elapsed time calculation by expressly agreeing to the 235-day figure

at disposition and failing to object. It further argues that Day’s ineffective assistance claim

is not record-based and should be left to postconviction relief.

¶14 We review criminal sentences imposing more than one year of incarceration for

legality. State v. Moore, 2012 MT 95, ¶ 10, 365 Mont. 13, 277 P.3d 1212. A sentence is

not illegal if it falls within statutory parameters. State v. Garrymore, 2006 MT 245, ¶ 9,

334 Mont. 1, 145 P.3d 946.

¶15 Ineffective assistance of counsel claims present mixed questions of law and fact,

which we review de novo. State v. Ugalde, 2013 MT 308, ¶ 28, 372 Mont. 234, 311 P.3d

772; State v. Wright, 2021 MT 239, ¶ 7, 405 Mont. 383, 495 P.3d 435.

¶16 We first address whether the District Court illegally sentenced Day by failing to

award approximately 524 additional days of elapsed time credit. Section 46-18-203(7)(b),

MCA, provides:

If a suspended or deferred sentence is revoked, the judge shall consider any elapsed time, consult the records and recollection of the probation and parole office, and allow all of the elapsed time served without any record or recollection of violations as a credit against the sentence. If the judge determines that elapsed time should not be credited, the judge shall state the reasons for the determination in the order.

This Court has interpreted this statute to require that specific violations established upon

“the record or recollection of the probation officer” are necessary to justify denial of

6 street-time credit and that the sentencing court must state its reasons for any denial. Jardee,

¶ 11; Gudmundsen, ¶ 13.

¶17 In Lenihan, 184 Mont. at 343, 602 P.2d at 1000, we held that a defendant may

challenge a criminal sentence alleged to be illegal or in excess of statutory mandates on

appeal even without objecting in the trial court. However, we later clarified that not every

statutory error renders a sentence “illegal” for Lenihan purposes. In State v. Kotwicki,

2007 MT 17, ¶ 13, 335 Mont. 344, 151 P.3d 892, and State v. Youpee, 2018 MT 102, ¶ 11,

391 Mont. 246, 416 P.3d 1050, we explained that a sentence is not illegal if it falls within

statutory parameters and that a sentencing court’s failure to abide by a statutory

requirement creates an objectionable sentence, not necessarily an illegal one invoking

Lenihan. In both Pajnich and Williams, we addressed the impact of failing to object or

acquiescing in the elapsed time credit awarded by a sentencing court.

¶18 In Pajnich, the defendant argued on appeal that her 2018 revocation sentence was

illegal because she was entitled to additional elapsed time credit beyond the 111 days

specified in a plea agreement. We held that when a district court is presented with a plea

agreement providing a specific and agreed-upon calculation of elapsed time, the court may

rely on the parties’ agreement and is not required to state reasons for denying additional

elapsed time when no argument for it was made. Pajnich, ¶ 12. We further held that the

amount of elapsed time credited in a plea agreement will not be reviewed on appeal absent

a contemporaneous objection or a mistake of fact. Pajnich, ¶¶ 12-14. Because Pajnich did

not object to the 111-day calculation and there was no mistake of fact, her assertion was

7 “based solely on a waived legal argument not made contemporaneously at the time of

revocation and not preserved for appeal.” Pajnich, ¶ 13.

¶19 In Williams, the petitioner challenged, via habeas corpus, the District Court’s denial

of elapsed time credit on a revocation sentence. We held that both the 2015 and 2017

versions of § 46-18-203(7)(b), MCA, required the court to consider elapsed time, but

emphasized that the dispositive issue was whether the court had considered the period for

which Williams claimed credit and whether he objected at sentencing. Williams, ¶¶ 10-11.

We concluded that Williams was on notice the State sought to deny street-time credit, had

the opportunity to object, and failed to do so. Because his sentence fell within statutory

parameters, any failure to award elapsed time was objectionable, not illegal, and his failure

to object waived his claim. Williams, ¶¶ 11-13.

¶20 Day argues that, unlike Pajnich, he did not enter a plea agreement and that, unlike

Williams, the District Court failed to consider the first 759 days of his suspended sentence,

including the period while the 1st PTR was pending and the period covered by the 2nd

Affidavit. He contends the court’s general reference to his “performance during his

suspended sentence” is insufficient to satisfy § 46-18-203(7)(b), MCA, and that the denial

of 524 days of elapsed time rendered his sentence illegal.

¶21 The record shows, however, that at the June 25, 2024 hearing, the State expressly

recommended 235 days of elapsed time credit, based on the 3rd Affidavit’s calculation,

and that defense counsel affirmatively agreed to that calculation. The District Court then

adopted the agreed-upon figures in its written judgment.

8 ¶22 Although Day did not sign a plea agreement, his counsel’s express agreement to the

State’s calculation created the same “distinct situation” described in Pajnich: the court was

presented with a specific number of days the parties agreed were owed and could rely on

that agreement. Pajnich, ¶ 12. As in Pajnich, Day could have argued for additional elapsed

time credit at his revocation hearing but did not. He did not ask the court to award credit

for the period while the 1st PTR was pending or for the period from December 14, 2022,

to July 18, 2023, nor did he object to the 235-day calculation or the court’s failure to state

reasons for denying additional credit.

¶23 Likewise, as in Williams, Day was on notice that the State’s 3rd Affidavit and

recommendation excluded certain periods from street-time credit. The affidavit explicitly

limited credit to June 15-21, 2021, and April 30-December 14, 2022, and noted other

violations and intervention efforts. The State’s dispositional argument reiterated the

235-day figure. Day had opportunity to object and to request additional credit but chose

instead to accept the calculation and focus his argument on avoiding revocation

incarceration through treatment under § 46-18-203(7)(a)(ii)(B), MCA.

¶24 Day’s sentence—20 years DOC with 10 years suspended, plus 105 days of credit

for time served and 235 days of elapsed time credit—falls within statutory parameters for

his offense and revocation. See § 45-6-601, MCA (2013); § 46-18-203, MCA. Any alleged

failure to award additional elapsed time or to state reasons for denying it is therefore an

objectionable sentence, not an illegal one. Williams, ¶¶ 11-12; Kotwicki, ¶ 13.

¶25 Consistent with Pajnich and Williams, Day waived his claim to the additional

524 days of elapsed time credit by failing to object to the State’s calculation or to request

9 additional credit at the time of revocation. His assertion on appeal is based solely on a

waived legal argument not made contemporaneously and not preserved for appeal.

Pajnich, ¶ 13. Thus, the District Court did not err in not granting the additional 524 days

of elapsed time Day now seeks.

¶26 We turn now to Day’s alternate issue of whether his counsel provided ineffective

assistance by failing to challenge the State’s elapsed time calculation. When an IAC claim

is raised on direct appeal, the Court ordinarily first determines whether the claim is

record-based and appropriate for direct appeal. If the record does not explain why counsel

acted or failed to act, the claim generally belongs in postconviction proceedings. State v.

White, 2001 MT 149, ¶ 20, 306 Mont. 58, 30 P.3d 340; State v. Crider, 2014 MT 139, ¶ 35,

375 Mont. 187, 328 P.3d 612. If the claim is reviewable, the defendant must prove both

deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.

Ct. 2052, 2064 (1984); Whitlow v. State, 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861.

The Court need not address the two prongs in order and may decide an IAC claim on the

lack of prejudice alone. Whitlow, ¶ 11; see also Strickland, 466 U.S. at 697, 104 S. Ct. at

2069.

¶27 Day argues that his counsel was constitutionally ineffective for failing to

independently calculate elapsed time credit and request the additional 524 days he now

claims. He asserts that an “accurate calculation and argument for elapsed time credit is a

necessary task for defense counsel” at revocation and that no competent lawyer would have

failed to protect his right to all credit to which he was entitled. He contends there was “no

plausible justification” for counsel’s omission and that, had counsel requested the

10 additional credit, the District Court would have been obligated under Jardee, Gudmundsen,

and Charles to award it.

¶28 The record shows that defense counsel did not object to the State’s 235-day

calculation and affirmatively agreed to it. It also shows that counsel focused his

dispositional argument on avoiding revocation incarceration by seeking continued

supervision with DOC treatment under § 46-18-203(7)(a)(ii)(B), MCA. The record does

not reveal counsel’s reasons for accepting the State’s calculation or for prioritizing

treatment over contesting credit.

¶29 As in State v. Mikesell, 2021 MT 288, 406 Mont. 205, 498 P.3d 192, the record

suggests at least plausible strategic considerations. Counsel may have believed that

conceding the State’s credit calculation would enhance Day’s credibility and focus the

court’s attention on treatment rather than punishment. Counsel may have assessed that

challenging the calculation would be unavailing given Day’s extensive violation history

and the reports of violation documenting ongoing noncompliance. Or counsel may have

lacked complete information about the earlier violation periods and chosen not to litigate

an issue he could not substantiate. The record does not answer “why.”

¶30 Unlike State v. Kougl, 2004 MT 243, 323 Mont. 6, 97 P.3d 1095, and State v. Rose,

1998 MT 342, 292 Mont. 350, 972 P.2d 321, this is not a case where counsel failed to take

an obligatory, non-tactical action or where there is clearly “no plausible justification” for

counsel’s conduct. Counsel’s decision not to object to the credit calculation and to focus

on treatment falls within the realm of tactical judgment, potentially influenced by

non-record factors such as discussions with Day, assessments of the judge’s sentencing

11 tendencies, or evaluations of the strength of the violation evidence. Because the record

does not fully explain why counsel failed to object or request additional elapsed time credit,

Day’s IAC claim is not record-based and is better suited for a petition for postconviction

relief, if at all. Mikesell, ¶¶ 20-23.

¶31 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. In the opinion of the

Court, the case presents a question controlled by settled law or by the clear application of

applicable standards of review.

¶32 Affirmed.

/S/ INGRID GUSTAFSON

We Concur:

/S/ CORY J. SWANSON /S/ JAMES JEREMIAH SHEA /S/ LAURIE McKINNON /S/ JIM RICE