State v. Usrey

2015 MT 176N

• Court: Montana Supreme Court
• Decided: June 23, 2015
• Docket: 14-0395
• Status: Published

Opinion

June 23 2015

DA 14-0395 Case Number: DA 14-0395

IN THE SUPREME COURT OF THE STATE OF MONTANA 2015 MT 176N

STATE OF MONTANA,

Plaintiff and Appellee,

v.

RICKY JOE USREY,

Defendant and Appellant.

APPEAL FROM: District Court of the Seventh Judicial District, In and For the County of Richland, Cause No. DC-99-21 Honorable Katherine M. Bidegaray, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Ricky Joe Usrey (Self-Represented), Deer Lodge, Montana

For Appellee:

Timothy C. Fox, Montana Attorney General, Brenda K. Elias, Assistant Attorney General, Helena, Montana

Mike Weber, Richland County Attorney, Sidney, Montana

Submitted on Briefs: May 27, 2015 Decided: June 23, 2015

Filed:

__________________________________________ Clerk Chief Justice Mike McGrath 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 Ricky Joe Usrey appeals from the District Court’s order filed June 13, 2014,

denying his motion to modify the sentencing judgment in this case. We affirm.

¶3 In 1999 Usrey pled guilty to a charge of sexual intercourse without consent in

which the victim was a six-year-old girl. His original sentence was fifteen years with ten

suspended. He was released after serving four years, but the District Court revoked his

probation and resentenced him in 2005. Since then, Usrey has been released on probation

several times, but has been resentenced and returned to prison when he failed to abide by

the conditions of release. In 2009 the District Court denied his attempt to withdraw his

guilty plea and this Court affirmed. State v. Usrey, 2009 MT 227, 351 Mont. 341, 212

P.3d 279.

¶4 Usrey commenced the present proceeding on May 7, 2014, when he moved the

District Court to modify his last sentence after revocation. He contends he is serving an

illegal sentence because his current discharge date falls a year or more after the date upon

which he would have been released had he served the entire fifteen-year sentence

imposed in 1999. The District Court denied his motion, noting that at each re-sentencing

2 after Usrey violated the conditions of his release in the last fifteen years, he received

credit for any time of actual incarceration, but not for time served on probationary

release.

¶5 A district court considering a defendant’s sentencing after probation revocation

can allow all or part of the elapsed time as credit against the new sentence, Section

46-18-203(7)(b), MCA. The District Court’s order of January 28, 2011, revoking

Usrey’s suspended sentence specifically stated the reasons for limiting the amount of

credit granted against the new sentence. The District Court fully complied with

§ 46-18-203(7)(b), MCA, in imposing the sentence that Usrey is now serving. The fact

that his discharge date is later than the date he may have anticipated is wholly a result of

his own conduct in repeatedly violating the conditions of his release on probation. It does

not make the sentence illegal.

¶6 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, this case presents a question controlled by settled law or by the clear

application of applicable standards of review. The District Court’s order was not an

abuse of discretion.

¶7 Affirmed.

/S/ MIKE McGRATH We Concur:

/S/ PATRICIA COTTER /S/ JAMES JEREMIAH SHEA /S/ MICHAEL E WHEAT /S/ JIM RICE