10/25/2016
DA 15-0630 Case Number: DA 15-0630
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 276N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JOSHUA JOSEPH JOHNSON,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. BDC 2014-197
Honorable Jeffrey M. Sherlock, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad M. Wright, Chief Appellate Defender, Alexander H. Pyle, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
Attorney General, Helena, Montana
Leo Gallagher, Lewis and Clark County Attorney, Jeff Sealey, Deputy
County Attorney, Helena, Montana
Submitted on Briefs: September 28, 2016
Decided: October 25, 2016
Filed:
__________________________________________
Clerk
Justice Michael E Wheat 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 In April 2014, Johnson was charged with felony driving under the influence of
alcohol or drugs (DUI). He posted bond and was released three days later subject to
certain conditions and restrictions. In July 2014, the First Judicial District Court revoked
bond and issued a warrant for Johnson’s arrest based upon his failure to comply with the
terms of his earlier release. In August 2014, Johnson and his counsel appeared before the
court for an omnibus hearing. In October 2014, Johnson changed his plea and entered a
guilty plea to felony DUI. Sentencing was set for December 11, 2014. Inexplicably, the
arrest warrant issued in July 2014 was not served on Johnson until November 5, 2014.
Following service of the warrant, Johnson was incarcerated in the Lewis and Clark
County Jail from November 5 through November 14, 2014. A bond hearing was
conducted and the court set Johnson’s bond at $10,000 but subsequently released Johnson
on his own recognizance (OR release).
¶3 On December 3, 2014, Johnson was stopped by the Montana Highway Patrol for
speeding. The officer discovered that Johnson was driving without a driver’s license and
insurance, and possessed alcohol. On December 9, 2014, the State moved to revoke
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Johnson’s OR release and an arrest warrant was issued. Johnson failed to appear at his
December 11, 2014 sentencing hearing. At the time of the hearing, the December 9
warrant for Johnson’s arrest had not yet been served.
¶4 On December 30, 2014, the District Court was notified that Johnson was
incarcerated in Kent, Washington; consequently, his Montana bond was revoked. In
April 2015, the District Court received notice that the Helena Police Department had
faxed the December warrant to the applicable county jail in Washington and the county
jail had served it on Johnson on or around April 15, 2015. Johnson was jailed in
Washington from December 21, 2014, until June 29, 2015, when he returned to Montana
and was immediately incarcerated.
¶5 On July 2, 2015, the District Court set Johnson’s bond at $100,000. Sentencing
was held on August 6, 2015, and Johnson was sentenced to the Department of
Corrections for 13 months, followed by a three-year suspended commitment. The
District Court granted Johnson 50 days credit for the amount of time he spent in the
Lewis and Clark County Jail. Johnson argued at sentencing that under § 46-18-403,
MCA (credit for incarceration prior to conviction), he was entitled to credit for 122 days
of the 193 days he spent in the Washington jails. He claimed that 71 days were spent
serving time for his Washington offenses and 122 days were spent serving time for the
Washington offenses while also being held under the Montana warrant. The District
Court denied his request for additional credit and Johnson appeals.
¶6 Section 46-18-403(1), MCA, provides:
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A person incarcerated on a bailable offense against whom a judgment of
imprisonment is rendered must be allowed credit for each day of
incarceration prior to or after conviction . . . .
Additionally, we have interpreted § 46-18-403, MCA, to allow credit for time served
“prior to sentencing where the incarceration is directly related to the offense for which the
sentence is imposed.” State v. Erickson, 2008 MT 50, ¶ 21, 341 Mont. 426, 177 P.3d
1043 (emphasis in original).
¶7 The record indicates that Johnson was incarcerated in Washington from December
21, 2014, until June 29, 2015. As noted above, the Washington county officers did not
serve the Montana warrant on Johnson until April 15, 2015. Therefore, the time spent in
the Washington county jails from December 21, 2014, through April 15, 2015, could not
have been related to Johnson’s Montana warrant and he is not entitled to credit for these
days. However, under § 46-18-403, MCA, and as conceded by the State, Johnson is
entitled to credit for the 20 days served in the Stevens County Jail in Washington from
April 15, 2015, until May 5, 2015. Johnson does not seek credit for time spent in the
Stevens County Jail between May 5, 2015, and June 29, 2015, as he acknowledges that
this time was served on his Washington offenses exclusively.
¶8 As Johnson was entitled to credit for the 50 days he served in the Lewis and Clark
County jail and for 20 days of the time he served in the Stevens County, Washington jail,
we affirm the District Court’s ruling but remand for an amended judgment to include 20
additional days credit toward Johnson’s sentence.
¶9 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for noncitable memorandum opinions. In
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the opinion of the Court, the case presents a question controlled by settled law or by the
clear application of applicable standards of review. The District Court’s interpretation
and application of the law were correct.
¶10 Affirm and remand.
/S/ MICHAEL E WHEAT
We Concur:
/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ LAURIE McKINNON
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