State v. R. Kortan

2022 MT 204, 518 P.3d 1283

Opinion

10/18/2022

DA 20-0577 Case Number: DA 20-0577

IN THE SUPREME COURT OF THE STATE OF MONTANA 2022 MT 204

STATE OF MONTANA,

Plaintiff and Appellee,

v.

RUSSELL KORTAN,

Defendant and Appellant.

APPEAL FROM: District Court of the Seventh Judicial District, In and For the County of Dawson, Cause No. DC-07-047 Honorable Katherine M. Bidegaray, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Rachel G. Inabnit, Law Office of Rachel Inabnit, PLLC, Missoula, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana

Brett Irigoin, Dawson County Attorney, Glendive, Montana

Submitted on Briefs: August 17, 2022

Decided: October 18, 2022

Filed:

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

¶1 Defendant and Appellant Russell Kortan (Kortan) appeals from the October 6, 2020

Order Revoking Suspended Sentence and Imposing Sentence issued by the Seventh

Judicial District Court, Dawson County. The District Court’s Order revoked Kortan’s

suspended sentence, committed him to the custody of the Montana Department of

Corrections (DOC) for three years, and gave him credit for 105 days of elapsed time and

181 days of previously-served jail time.

¶2 We address the following restated issue on appeal:

Whether the District Court issued an illegal sentence by failing to give credit for time served on sentences that were ordered to run concurrent to Kortan’s revocation sentence.

¶3 We reverse and remand with instructions to credit Kortan with an additional 604

days of time served.

FACTUAL AND PROCEDURAL BACKGROUND

¶4 In November 2007, Kortan was charged with one felony count of issuing bad

checks, common scheme, in Dawson County Cause No. DC-07-047. Kortan pled guilty to

this charge via a nonbinding plea agreement in December 2007. On April 8, 2008, the

District Court held a sentencing hearing. At that hearing, the court orally imposed a

five-year deferred sentence with conditions including the payment of $6,760 in restitution,

and granted Kortan credit for 39 days served in jail prior to sentencing. A written order

reflecting the court’s judgment and deferred imposition of sentence followed on April 10,

2008. 2 ¶5 On December 19, 2008, Kortan was sentenced by the District Court on two other

criminal matters: Dawson County Cause No. DC-08-027 and Prairie County Cause No.

DC-08-04. In each of those cases, Kortan was sentenced to DOC custody for a period of

five years, with two years suspended. The District Court ordered the sentence in both cases

to run concurrently with each other, and concurrently with Dawson County Cause No.

DC-07-047. Relevant to this proceeding, Kortan was incarcerated in various facilities

around the state between December 19, 2008, and July 7, 2010.

¶6 In late 2012 and early 2013, the State filed a petition and an amended petition to

revoke Kortan’s deferred sentence in Dawson County Cause No. DC-07-047. Kortan

ultimately admitted to the allegations of the State’s amended petition and the District Court

held a dispositional hearing on February 28, 2013. At that hearing, the court revoked

Kortan’s deferred imposition of sentence and sentenced him to an eight-year DOC

commitment, with three years suspended. The District Court ordered this sentence to run

concurrently with the sentences in Dawson County Cause No. DC-08-027 and Prairie

County Cause No. DC-08-04. The court did not grant Kortan credit for any elapsed time

served while on probation. A written order reflecting the court’s sentence was issued on

March 4, 2013.

¶7 On February 10, 2017, Kortan filed, pro se, a Motion for Credit for Time Served,

seeking credit for two years of time served “towards District Court No. DC 07-047[.]” On

March 3, 2017, the State filed its Response to Defendant’s Motion for Credit for Time

Served. In its response, the State, relying on State v. McCaslin, 2011 MT 221, 362 Mont. 3 47, 260 P.3d 403, argued no sentence was imposed in this case until February 28, 2013,

and therefore Kortan was not entitled to credit for the time he spent incarcerated due to the

sentences in Dawson County Cause No. DC-08-027 and Prairie County Cause No.

DC-08-04. On March 21, 2017, the District Court issued its Order Denying Motion for

Credit for Time Served. The court denied Kortan’s motion, determining Kortan “was not

sentenced until February 28, 2013,” and, “[s]ince he had not been sentenced in this matter,

the approximately one year eight months referred to by the defendant in DC 08-027 and

DC 08-04 cannot serve as good time and affect the February 28, 2013[] sentence in this

matter.”1

¶8 In 2019, DOC Probation and Parole Officer Melanie Etchemendy (PO Etchemendy)

filed an Affidavit in Support of Petition for Revocation of Order of Suspended Sentence,

along with a Report of Violation. The State thereafter filed a Petition for Revocation of

Suspended Sentence. Throughout late 2019 and early 2020, PO Etchemendy filed several

addendums to her report of violation, and the State filed both an amended and second

amended petition to revoke Kortan’s suspended sentence. Kortan admitted to the

allegations of the State’s second amended petition to revoke at an adjudicatory hearing on

May 19, 2020. The District Court ultimately held a dispositional hearing on September 28,

2020. At that hearing, counsel for Kortan requested the court “simply give [Kortan] credit

1 The presiding judge at this time was the Honorable Richard A. Simonton, who has since passed away.

4 for time served and close this docket so he can start anew on his new cases.” The State

noted Kortan had already filed a motion for time served, which was denied by the court

because Kortan had not been sentenced and “the jail days, or the incarceration days from

that previous time has already been addressed by Judge Simonton, and the Defendant was

not given credit for that.” The District Court then orally sentenced Kortan to a three-year

DOC commitment and gave him credit for 105 days of elapsed time and 181 days of

previously-served jail time. The court’s written Order Revoking Suspended Sentence and

Imposing Sentence followed on October 6, 2020.

¶9 Kortan appeals. Additional facts will be discussed as necessary below.

STANDARD OF REVIEW ¶10 “While we review a district court’s revocation of a suspended sentence for abuse of

discretion, when the district court’s authority to take a specific action is at issue, the

question is one of law and our review is de novo.” State v. Gudmundsen, 2022 MT 178,

¶ 8, 410 Mont. 67, ___ P.3d ___ (internal citation omitted). “Calculating credit for time

served is not a discretionary act, but a legal mandate.” State v. Tippets, 2022 MT 81, ¶ 10,

408 Mont. 249, 509 P.3d 1 (quoting State v. Parks, 2019 MT 252, ¶ 9, 397 Mont. 408, 450

P.3d 889). A district court’s determination of credit for time served is therefore reviewed

for legality. Tippets, ¶ 10 (citing Parks, ¶ 7). A determination of legality is a question of

law that we review de novo. Parks, ¶ 7 (citing State v. Seals, 2007 MT 71, ¶ 7, 336 Mont.

416, 156 P.3d 15).

5 DISCUSSION

¶11 Whether the District Court issued an illegal sentence by failing to give credit for time served on sentences that were ordered to run concurrent to Kortan’s revocation sentence.

¶12 As a preliminary matter, the State points out that the District Court’s October 6,

2020 revocation sentence (as well as the February 28, 2013 revocation sentence) failed to

give Kortan credit for 39 days served in jail prior to the court’s April 8, 2008 deferred

imposition of sentence, credit for which the court granted at that time, and concedes the

matter should be remanded to grant Kortan credit for an additional 39 days of time served.

¶13 The remainder of this matter concerns whether Kortan should have been granted

credit for time spent incarcerated between December 19, 2008, and July 7, 2010—a total

of 565 days. Kortan argues he is entitled to credit for this time because, when he was

sentenced in Dawson County Cause No. DC-08-027 and Prairie County Cause No.

DC-08-04, those sentences merged with the underlying deferred sentence in Dawson

County Cause No. DC-07-047 and credit for time spent incarcerated is mandatory under

§ 46-18-203(7)(b), MCA. The State asserts Kortan’s argument is both “meritless and

unpreserved,” because, when Kortan was sentenced in Dawson County Cause No.

DC-08-027 and Prairie County Cause No. DC-08-04, “he was not serving any sentence at

all in this case.” We agree with Kortan.

¶14 We must first determine whether Kortan’s claim is preserved for appellate review.

Based upon the unique nature of sentencing upon revocation, we conclude the claim is

preserved. The general sentencing statutes are not applicable in this revocation matter 6 because “sentencing upon the revocation of a suspended or deferred sentence is particularly

and expressly governed by § 46-18-203, MCA[.]” Seals, ¶ 15. Here, while Kortan does

allege he should have originally been given credit for the additional 565 days when the

District Court conducted its first sentencing upon revocation in 2013, he is specifically

challenging the sentence upon revocation imposed by the District Court in 2020. As Kortan

notes, he is not challenging his underlying conviction from 2008, the first revocation

sentence from 2013, or the fact his sentence was revoked on either occasion here, but

instead is arguing the 2020 revocation sentence itself is illegal. When an “illegal sentence

is challenged during a revocation proceeding held while the defendant is serving the

suspended portion of the illegal sentence, the court, upon sentencing in the revocation

proceeding, is constrained by the particulars of § 46-18-203(7), MCA.” Seals, ¶ 15.

¶15 The State correctly notes counsel for Kortan conceded that “the [c]ourt was not

required to give him credit” for the challenged 565 days of time served during the

September 28, 2020 dispositional hearing. We disagree with the State, however, that this

concession operates to preclude appellate review in this case. Kortan’s counsel stated, “I

think Judge Simonton is technically correct in that, because it was on a deferred, he wasn’t

technically sentenced. Um, but it still happened.” Kortan’s counsel then continued to

request credit for the time Kortan served in jail. While asserting Kortan has not preserved

his objections for appeal, the State concedes Kortan is due credit for an additional 39 days

of time served and requests this Court to “remand to the district court to correct the

omission of 39 days of jail time credit that was granted in the original judgment.” Between 7 Kortan’s unequivocal request for more credit for time served, the State’s concession Kortan

is in fact due credit for more time served (though for different days than he originally

requested here), and the District Court’s 2020 sentencing upon revocation being

“constrained by the particulars of § 46-18-203(7), MCA,” Seals, ¶ 15, regardless of what

occurred at the 2013 sentencing or with the District Court’s 2017 denial of Kortan’s motion

for time served, it is clear Kortan preserved the issue regarding proper credit for time

served.

¶16 We turn now to whether the District Court’s calculation of credit for time served

complied with legal mandates. We hold it did not. When denying Kortan’s pro se motion

for credit for time served in 2017, the District Court determined Kortan “was not sentenced

until February 28, 2013,” and, “[s]ince he had not been sentenced in this matter, the

approximately one year eight months referred to by the defendant in DC 08-027 and

DC 08-04 cannot serve as good time and affect the February 28, 2013[] sentence in this

matter.” At the September 28, 2020 dispositional hearing, both the State and counsel for

Kortan referenced this earlier decision, and counsel for Kortan appeared to acquiesce to its

correctness, but maintained Kortan should be given credit for time served anyway because,

regardless of the court’s order, Kortan’s incarceration during the period at issue “still

happened.” The State continues to contend that when Kortan “was serving time for

DC-08-27 and DC-08-04, he was not serving any ‘sentence’ at all in this case.” The State’s

contention Kortan was not serving a sentence in this case during the time he was

incarcerated from December 19, 2008, to July 7, 2010, is incorrect. 8 ¶17 “‘Sentence’ means the judicial disposition of a criminal proceeding upon a plea of

guilty or nolo contendere or upon a verdict or finding of guilty.” Section 46-1-202(25),

MCA. “[T]he imposition of a deferred sentence does constitute a conviction and final

judgment.” State v. Tomaskie, 2007 MT 103, ¶ 13, 337 Mont. 130, 157 P.3d 691. While

it is true we have, in the past, stated that “[w]ith a deferred imposition of sentence, the

sentence is not imposed,” McCaslin, ¶ 14, we have since clarified our previous

misstatements on this point as mere dicta based on cases decided under prior statutory

schemes and now recognize that a deferred imposition of sentence is in fact a sentence.

State v. Thibeault, 2021 MT 162, ¶ 21 n.16, 404 Mont. 476, 490 P.3d 105.

¶18 Here, Kortan was given a deferred sentence on April 8, 2008. On December 19,

2008, in two unrelated cases, Kortan was sentenced to five years DOC, with two years

suspended. When sentence was imposed in those two cases, the District Court ordered

those sentences to run concurrently with the previously-imposed sentence in this case.

“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 run

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). Kortan’s sentences 9 in Dawson County Cause No. DC-07-047, Dawson County Cause No. DC-08-027, and

Prairie County Cause No. DC-08-04 merged and began to run concurrently on

December 19, 2008, when he was sentenced on the latter two cases. See Johnston v.

Kirkegard, No. OP 12-0741, 369 Mont. 540, 310 P.3d 1098 (Feb. 5, 2013).

¶19 Kortan’s sentence was thereafter revoked on February 28, 2013, when he was

sentenced to an eight-year DOC commitment, with three years suspended. At that time,

the District Court, as the State concedes, failed to give Kortan credit for the 39 days of time

served it had previously awarded in its 2008 deferred sentence. The court also did not give

Kortan credit for the 565 days he had been incarcerated on Dawson County Cause No.

DC-08-027 and Prairie County Cause No. DC-08-04 during his merged sentence. After

serving the custodial portion of his sentence, Kortan began serving the suspended portion

of his sentence, which was revoked on September 28, 2020. Kortan does not contend the

District Court erred in any way by revoking his sentence on either occasion, as he admitted

to the violations each time, but asserts the court was required to give him credit for time

served.2

2 In support of his assertion he is entitled to credit for time served, Kortan cites to several cases, including, more than once, to our unpublished opinion in Ronemus v. State, No. 00-867, 2001 MT 203N, 2001 Mont. LEXIS 361. “[U]npublished orders and opinions from this Court are not to be cited as precedent.” State v. Oie, 2007 MT 328, ¶ 16, 340 Mont. 205, 174 P.3d 937. “We plainly and unambiguously state in the first paragraph of every unpublished opinion that such opinions ‘shall not be cited as precedent.’” State v. Ferre, 2014 MT 96, ¶ 15, 374 Mont. 428, 322 P.3d 1047. Once again, we “admonish counsel not to cite to or rely on such orders and opinions in the future” and reiterate that “when included in briefs, we give no regard to such citations.” Oie, ¶ 16.

10 ¶20 “[S]entencing upon the revocation of a suspended or deferred sentence is

particularly and expressly governed by § 46-18-203, MCA[.]” Seals, ¶ 15. Regarding a

district court’s authority to award credit for time served, the relevant portion of

§ 46-18-203, MCA, states:

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 officer, 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. Credit must be allowed for time served in a detention center or for home arrest time already served.

Section 46-18-203(7)(b), MCA.

¶21 Quite notably, the statute here also refers to the revocation of a “suspended or

deferred sentence[.]” Section 46-18-203(7)(b), MCA (emphasis added). If, as the State

contends, a deferred sentence is not considered a sentence until it is either revoked or the

deferral period ends, there would be no need for the language referring to a deferred

sentence in this statute because there could never be credit awarded on a deferred sentence.

As previously explained, Opinion, ¶ 17, the State’s interpretation regarding when a

deferred sentence comes into existence is not accurate. The language of the statute at issue

here is not discretionary when it comes to the awarding of credit for time served on a

revoked suspended or deferred sentence, as it states that “[c]redit must be allowed for time

served in a detention center or for home arrest time already served.” Section

46-18-203(7)(b), MCA (emphasis added). “Both ‘shall’ and ‘must’ are mandatory, rather

than permissive.” Montco v. Simonich, 285 Mont. 280, 287, 947 P.2d 1047, 1051 (1997). 11 Because Kortan’s deferred sentence in Dawson County Cause No. DC-07-047 merged with

his sentences in Dawson County Cause No. DC-08-027 and Prairie County Cause No.

DC-08-04 on December 19, 2008, the District Court was required to grant him credit for

the time he spent incarcerated between December 19, 2008, and July 7, 2010. Its failure

to do so in this case violates statutory mandates and therefore constitutes an illegal

sentence. This matter must be remanded for the District Court to enter a corrected

judgment imposing a legal sentence which grants Kortan additional credit for time served.

CONCLUSION

¶22 Because Kortan’s three sentences merged on December 19, 2008, Kortan is entitled

to 565 days of credit for the time he spent incarcerated between December 19, 2008, and

July 7, 2010. The District Court therefore issued an illegal sentence when it failed to give

Kortan credit for this time served. In addition, Kortan should have been credited with an

additional 39 days of credit for time served which the District Court provided for in its

original deferred imposition of sentence.

¶23 Reversed and remanded with instructions to grant Kortan credit for an additional

604 days of time served.

/S/ INGRID GUSTAFSON

We concur:

/S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ BETH BAKER /S/ JIM RICE 12