11/10/2020
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IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: OP 20-0235
OP 20-0235
FqLED
CLIFFORD OLD HORN,'
NOV 1 0 2020
Bowen Greenwood
Petitioner, of Supreme Court
State of Montana
v.
ORDER
LYNN GUYER, Warden,2
Montana State Prison,
Respondent.
Representing himself. Clifford Old Horn has filed a petition for a writ of
habeas corpus, requesting various forms of relief. In compliance with this Court's
May 4, 2020 Order, the Attorney General for the State of Montana has filed a response
addressing the singular argument about additional credit for time served and requesting
that his petition be denied.
The State provides more details about Old Horn's sentencing background. In
February 2006,the Twentieth Judicial District Court, Lake County,sentenced Old Horn to
the Department of Corrections(DOC)for twenty years with fifteen years suspended for
felony burglary, a common scheme. The District Court also irnposed two suspended
ten-year terms for felony theft and felony deceptive practices, to run concurrently with each
other and consecutively to the DOC comrnitment. The court awarded Old Horn 165 days
of credit for time served.
In April 2010, the State charged Old Horn with deliberate homicide. On
September 2,2010, Old Horn discharged the custodial portion of his burglary sentence but
Old Horn is sometimes spelled as OldHorn and Old-Horn. See State v. Old-Horn,2014 MT 161,
375 Mont. 310, 328 P.3d 638.
2 Since the filing of this petition, Jim Salmonsen is the current Acting Warden for
Montana State Prison.
remained incarcerated because of his recent homicide cha ge. In June 2011, a Lake County
jury convicted Old Horn of deliberate homicide. The District Court sentenced him to the
Montana State Prison(MSP)for 100 years with credit of 364 days for time served. While
Old Horn's criminal case was on appeal, this Court remanded the matter to the
District Court for an evidentiary hearing. State v.; Old-Horn, No. DA 11-0709,
Order(Mont. Nov. 7, 2012). The District Court vacated the deliberate homicide charge.
State v. Old-Horn, No.DA 11-0709, Order (Mont. Jan. 20, 2013).
Old Horn was released from custody on February 13, 2013. Four days later, he was
arrested and held because of alleged probationary violatiOns. The District Court sentenced
Old Horn upon revocation to the DOC for a fifteen-year term with no time suspended. The
court stated that Old Horn will receive credit for time served but not for time on probation.
In its written judgment, however, as the State points out in its response, the court awarded
Old Horn 388 days instead of 38 days from February 17 to March 27, 2013. Old Horn
applied for review with the Sentence Review Division. The Division reduced the DOC
commitment to a fifteen-year term with ten years suspended, to run concurrently with, not
consecutively to, his other suspended sentences. The ciedit for time served of 388 days
remained unchanged.
In March 2018, the District Court revoked Old Horn's ten-year suspended sentence
and imposed a ten-year DOC commitment with five years suspended.
Old Horn states that he is entitled to credit for jail time served for his 2005 offense
of burglary and its subsequent revocations. Old Horn requests jail time credit from
September 2, 2010 to August 31, 2011. He claims that he has served eleven-and-a-half
years in prison instead of ten years. Next, he contends that his sentence is illegal because
the oral pronouncement does not conform with the written judgment. Lastly, he contends
that the Board of Pardons and Parole (Board) erred in denying him parole and that the
Board violated his due process rights because it considered his dismissed case. Old Horn
requests a remand, a sentence recalculation, and his release.
The State responds that Old Horn has not met his burden of sufficient legal cause
for a writ to issue. Miller v. Eleventh Judicial Dist Ct., 2007 MT 58, ¶ 14, 336 Mont. 207,
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154 P.3d 1186. The State points out the court's apparent clerical error in its written
judgment for awarding 350 additional days of credit and contends that Old Horn is taking
advantage ofthe enor in seeking more credit. The State aigues that Old Horn is not entitled
to additional credit for time served. The State maintains that credit for time served for
incarceration must be "directly related to the offense for which the sentence is imposed."
State v. Kime,2002 MT 38,¶ 16, 308 Mont. 341,43 P.3d 290(overruled on other grounds
by State v. Herman, 2008 MT 187, ¶ 12, 343 Mont. 494, 188 P.3d 978). The State
concludes that Old Horn is not due any additional time.
The State points out that the additional time Old Horn seeks is during the time frame
when he was incarcerated for the deliberate homicide conviction that was later dismissed.
The State explains that the time frame at issue is the 364'days from September 2, 2010, to
August 31, 2011. The State correctly asserts that this time would not be directly related to
any pre-trial detention for Old Horn's burglary conviction because it was the time that he
was held for the deliberate homicide offense. Kime,¶ 16 The State further points out that
the sentences for these offenses never were imposed to run concurrently and, thus, the
sentences did not merge. See State v. Tracy, 2005 MT 128, 327 Mont. 220, 113 P.3d 297
(concurrent sentences merge).
We find the State's arguments persuasive. Old Horn has not demonstrated that he
is entitled to habeas corpus relief. Section 46-22-101(1), MCA. We agree with the State
that he is not entitled to additional credit for time served. As evidenced in Old Horn's
attached letter to his petition, the MSP Records Department has given all the credit that
was awarded in his judgments.
Turning to his remaining arguments, we conclude that they lack merit. Old Hom
contends his sentence is illegal because he has served about eleven-and-a-half years for
burglary. Old Horn also contends that his sentence is illegal because the oral
pronouncement does not conform with the written judgment. Old Horn seems to be
mistaken. Old Horn originally received a twenty-year sentence with five years suspended
for felony burglary. Based upon his probationary violations,the sentence has been revoked
twice. Both the 2018 Minute Entry and the written Judginent provide that Old Horn is
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sentenced upon revocation to a ten-year term with five years suspended, given credit for
seventy-nine days, and recommended for NEXUS. Any additional time is not warranted
given the windfall resulting from the mistaken 388 instead of38 days of credit. Old Horn
cannot include any additional time, such as the 364 days served for the later-dismissed
homicide conviction, in his calculation. The time Old Horn has served in prison does not
exceed the sentence imposed.
Finally, Old Horn is not entitled to relief based on the Board's denial of parole. This
Court has stated repeatedly that the Board has broad authority to consider all evidence and
matters, even dismissed cases. McDermott v. McDonald, 2001 MT 89, ¶ 20,
305 Mont. 166, 24 P.3d 200; § 46-23-208(4), MCA. "Moreover, [it] may consider
evidence of offenses which were charged in dismissed counts." McDermott, ¶ 20. The
Board did not err in considering Old Horn's dismissed criminal case. "It is well established
that a parole release determination is not subject to all the due process protections required
to convict or confine." McDermott,¶ 11. Old Horn's due process rights were not violated.
Old Horn has not served an illegal sentence for burglary, and he has not shown that
the Board erred in its denial of parole. Old Horn has not demonstrated that he is illegally
incarcerated. We conclude that he is not entitled to remand, recalculation, or his release.
Moreover, he is precluded from challenging his sentence upon revocation through a writ of
habeas corpus. Section 46-22-101(2), MCA.
IT IS THEREFORE ORDERED that Old Horn's Petition for a Writ of Habeas
Corpus is DENIED.
The Clerk is directed to provide a copy of this Order to counsel of record and to
Clifford Old Horn personally.
DATED this 10 day of November, 2020.
Chief Justice
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