08/03/2021
DA 19-0587
Case Number: DA 19-0587
IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 197
STATE OF MONTANA,
Plaintiff and Appellee,
v.
MARK ALAN MENDOZA,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and For the County of Lake, Cause No. DC 19-16
Honorable Deborah Kim Christopher, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Colin M. Stephens (argued), Smith & Stephens, P.C., Missoula, Montana
Chad M. Wright, Office of the Appellate Defender, Helena, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Bree Gee (argued), Assistant
Attorney General, Helena, Montana
Steven N. Eschenbacher, Lake County Attorney, Polson, Montana
Argued and Submitted: June 16, 2021
Decided: August 3, 2021
Filed:
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__________________________________________
Clerk
Justice Ingrid Gustafson delivered the Opinion of the Court.
¶1 Defendant and Appellant Mark Alan Mendoza (Mendoza) appeals from the
August 16, 2019 Judgment issued by the Twentieth Judicial District Court, Lake County,
denying him full credit for all days he spent incarcerated from the date he was served with
the arrest warrant through sentencing.
¶2 We restate the issue on appeal as follows:
Whether Mendoza’s sentence on his DUI is illegal due to the District Court’s failure
to credit him for each day of incarceration from the date he was served with the
arrest warrant through the date of the court’s imposition of sentence.
¶3 We reverse and remand to the District Court to amend the Judgment to provide
Mendoza credit against his sentence for the time he served from December 5, 2017, the
date he was served with the arrest warrant, to July 18, 2019, the date he was sentenced—
approximately 579 days.
FACTUAL AND PROCEDURAL BACKGROUND
¶4 Mendoza was charged by citation in Lake County, Montana, for felony Driving
Under the Influence of Alcohol or Drugs (DUI) on September 3, 2015. He failed to appear
for his initial appearance, and a warrant was issued for his arrest on September 9, 2015.
The arrest warrant set bond at $25,000. While incarcerated in Gallatin County, Montana,1
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Mendoza was arrested December 3, 2017, in Gallatin County and charged with DUI. He
remained in the Gallatin County Detention Center until he was sentenced to a two-year
commitment to the DOC, followed by a suspended five-year term, with credit for 290 days
pre-sentence incarceration on September 18, 2018. During this time Mendoza was also charged
with a felony DUI in Missoula County, Montana. Mendoza was adjudged guilty of the DUI in
Missoula County on January 7, 2019, and sentenced to 24 months to the DOC to run concurrently
with the Gallatin County sentence. Any credit Mendoza would receive under the Gallatin County
2
Mendoza was served with the Lake County arrest warrant on December 5, 2017. Mendoza
appeared on the warrant before the Justice of the Peace on January 9, 2019, and was
arraigned on the DUI offense on January 31, 2019.
¶5 Pursuant to a plea agreement—which specifically provided Mendoza “shall receive
credit for any time served on these charges”—Mendoza entered a guilty plea to the DUI
on March 21, 2019. On June 11, 2019, Mendoza filed a Motion to Dismiss for Lack of
Speedy Trial, asserting a due process violation by the near two-year delay between the date
he was served with the arrest warrant on December 5, 2017, and the date he made an initial
appearance on January 31, 2019. At the sentencing hearing discussion was had regarding
the delay in appearance as well as credit for time served. Mendoza argued that as the Lake
County warrant was holding him on this case, he should be entitled to credit for all time
from the date he was served with the warrant through the date of sentencing. The State
indicated that after the Justice Court warrant was issued, “for whatever reason the justice
court did not bring him over until he had resolved [the Gallatin and Missoula County]
charges” and argued, “He was on some kind of bond in those [Gallatin and Missoula
County] cases. The State objects to him receiving double time credit . . . .” The District
Court commented, “Well, someone was also holding him.” As Mendoza did not reserve
sentence would merge with his sentence from Missoula County. Section 46-18-401(3), MCA;
State v. Tracy, 2005 MT 128, ¶ 28, 327 Mont. 220, 113 P.3d 297 (superseded by statute). Mendoza
appealed his conviction and sentence from Gallatin County on other grounds. State v. Mendoza,
No. DA 18-0637, 2020 MT 306N, 2020 Mont. LEXIS 2568.
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the right in the plea agreement to make his due process claim, the court denied it. The
court determined, despite the Lake County warrant being served on Mendoza and it
imposing an active hold, Mendoza was not entitled to credit for the time he was also being
held pursuant to the Gallatin and Missoula County matters. In discussing what credit to
provide, the court addressed Mendoza’s argument that he was entitled to credit for all days
from the date he was served with the warrant through the date of sentencing regardless of
whether he was also being held by other counties for some of that time. The court noted,
“You know what? We’re going to let the supreme court sort this out.” Following further
discussion the court noted, “Well, to the extent that we have to add those additional days
in, they should be determined. I’m not going to do the math.” Ultimately, the court
provided Mendoza 192 days credit for the time after the sentence in the Gallatin County
matter was imposed to the date of sentencing. Mendoza appeals.
¶6 Following submission of appellate briefs, we ordered this matter consolidated with
Killam v. Salmonsen, No. OP 20-0583, for purposes of conducting oral argument. Oral
argument was held before this Court on June 16, 2021. At oral argument, Mendoza asserted
he was served with an arrest warrant on December 5, 2017, which set bond at $25,000. He
did not ever post the bond and remained incarcerated to July 18, 2019, the date he was
sentenced. He asserts, pursuant to § 46-18-403(1), MCA, he was entitled to credit for all
time from December 5, 2017 to July 18, 2019, as he was incarcerated, the DUI offense was
a “bailable offense” and indeed bail was set on the offense at $25,000, he never posted the
bail, and he was subject to a judgment of imprisonment. Mendoza asserts this Court’s
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application of § 46-18-403(1), MCA, in State v. Kime, 2002 MT 38, 308 Mont. 341, 43
P.3d 290, and State v. Pavey, 2010 MT 104, 356 Mont. 248, 231 P.3d 1104, violated the
plain language of the statute and should be overruled. Mendoza further points to the
enactment of § 46-18-201(9), MCA, in 2017, which provides that a sentencing court must
give credit for pre-trial or pre-sentencing incarceration regardless of whether the defendant
was also held in relation to another criminal matter. Mendoza maintains that § 46-18-
201(9), MCA (2017), either solidifies the existing law or, alternatively, newly mandates
that sentencing courts must provide credit for time served before trial or sentencing.
¶7 The State argues Mendoza is not entitled to credit for time served from December 5,
2017, the date Mendoza was served with the arrest warrant, but rather is only entitled to
credit from the date his Gallatin and Missoula County cases were resolved. The State,
using a different definition of “bailable offense” than that set forth in § 46-9-102, MCA,
argued Mendoza was not incarcerated on a “bailable offense” as had he posted the bond
set on the Lake County DUI, he would not have been released prior to resolution of the
Gallatin and Missoula County DUIs as he was still being held on those other charges.2 The
2
Section 46-18-403(1), MCA (2017), titled Credit for Incarceration Prior to Conviction,
provides:
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, except that the time allowed as a credit may not exceed the
term of the prison sentence rendered.
Section 46-18-403(1), MCA (2017).
Section 46-9-102, MCA, bailable offenses, provides:
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State asserts that any pre-sentence incarceration should only be counted once and not
applied toward each sentence, regardless of whether bail was set on each charge, when an
offender faces charges in multiple jurisdictions.
STANDARD OF REVIEW
¶8 We review a district court’s sentence for legality. State v. Parks, 2019 MT 252, ¶ 7,
397 Mont. 408, 450 P.3d 889. A sentence is legal if it falls within the parameters set by
applicable sentencing statutes and if the sentencing court adheres to the affirmative
mandates of those statutes. Parks, ¶ 7. “A determination of legality is a question of law
which we review de novo.” Parks, ¶ 7 (citation omitted).
DISCUSSION
¶9 Whether Mendoza’s sentence on his DUI is illegal due to the District Court’s failure
to credit him for each day of incarceration from the date he was served with the
arrest warrant through the date of the court’s imposition of sentence.
¶10 As we recently discussed in State v. Killam, 2021 MT 196, ___ Mont. ___, ___ P.3d
___, despite §§ 46-18-403(1) and 46-9-102(1), MCA, determining whether a defendant is
“incarcerated on a bailable offense” has proven confusing and difficult for sentencing
(1) All persons shall be bailable before conviction, except when death is a possible
punishment for the offense charged and the proof [of the potentially death invoking
offense] is evident or the presumption great that the person is guilty of the offense
charged.
Whereas, the State defined “bailable offense” as meaning that the offender would be set free if
s/he posted bond and then reasoned that had Mendoza posted the bond set in his Lake County case,
he would not have been released as he was being held on the Gallatin and Missoula County
charges. Under the State’s argument, the “bailable offense” referenced in § 46-18-403(1), MCA,
would be a different offense than the one for which the defendant is actually being sentenced.
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courts.3 The confusion courts have experienced is evident here from the District Court’s
remarks at sentencing—“You know what? We’re going to let the supreme court sort this
out.” As our holding in Killam—issued simultaneous to this matter—discusses, the
Legislature has resolved this confusion with enactment of § 46-18-201(9), MCA (2017),
by eliminating sentencing courts’ need to determine whether a defendant is incarcerated on
a “bailable offense.” Killam, ¶¶ 16-17.
¶11 Section 46-18-201(9), MCA (2017), provides:
When imposing a sentence under this section that includes incarceration in a
detention facility or the state prison, . . . the court shall provide credit for the
time served by the offender before trial or sentencing.
Our holding in Killam is controlling and discusses application of § 46-18-201(9), MCA, in
determining what credit must be given for pre-sentence incarceration. Killam, ¶¶16-17.
¶12 We turn now to the application of § 46-18-201(9), MCA, to Mendoza’s case.
Mendoza was served with his Lake County arrest warrant on December 5, 2017, which set
bond at $25,000. Mendoza never posted the bond and remained incarcerated to July 18,
2019, the date he was sentenced on the Lake County DUI. He is thus entitled to credit,
pursuant to § 46-18-201(9), MCA, for each day he was incarcerated from December 5,
3
As we set forth a discussion regarding the confusion and inconsistent approaches courts have
used to determine if an offense is bailable in Killam, we do not repeat that discussion here.
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2017 to sentencing on July 18, 2019, regardless of whether he was also being held in
connection with another matter in a different county.4
CONCLUSION
¶13 This matter is reversed and remanded to the District Court to amend the judgment
to provide Mendoza credit for each day he was incarcerated from December 5, 2017 to
July 18, 2019.
/S/ INGRID GUSTAFSON
We concur:
/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR
/S/ JIM RICE
4
Mendoza’s credit for this time is not related to or dependent on any credit he received or did not
receive in the Gallatin County and Missoula County matters, but rather is determined solely on the
record in his Lake County case.
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