11/01/2022
DA 22-0051
Case Number: DA 22-0051
IN THE SUPREME COURT OF THE STATE OF MONTANA
2022 MT 216
STATE OF MONTANA,
Plaintiff and Appellee,
v.
VERNON A. JOHNSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC 16-0808
Honorable Mary Jane Knisely, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Robert L. Stephens, Jr., Southside Law Center, Billings, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Christine Hutchison,
Assistant Attorney General, Helena, Montana
Scott Twito, Yellowstone County Attorney, Holley Metzger, Deputy
County Attorney, Billings, Montana
Submitted on Briefs: August 10, 2022
Decided: November 1, 2022
Filed:
Vir----C if
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 This is an appeal from a Thirteenth Judicial District Court judgment revoking
Vernon Johnson’s suspended sentence and imposing a sentence with a termination date
beyond the original sentence.
¶2 We restate the issues on appeal as follows:
Issue One: Does § 46-18-203(7)(a)(iii), MCA, prevent a sentencing judge in a
revocation proceeding from imposing a longer term of commitment than the original
sentence?
Issue Two: Does the record support the District Court’s denial of credit for elapsed
time following Johnson’s revocation?
¶3 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶4 On August 17, 2017, the Thirteenth Judicial District Court sentenced Vernon
Johnson (Johnson) to the Department of Corrections (DOC) for five years, all suspended
with credit for one day served, following his plea to two counts of felony indecent
exposure. Each count was concurrent with the other. The written judgment included
conditions that Johnson enter and successfully complete sexual offender treatment with a
clinical provider who is a member in good standing with the Montana Sexual Offender
Treatment Association (MSOTA) or its equivalent, subject to the approval of his probation
officer, and that Johnson refrain from electronically accessing pornographic materials.
¶5 On January 9, 2020, Johnson admitted to accessing pornography in violation of his
sentencing conditions. During a subsequent case management response, Johnson agreed
to not possess a phone capable of accessing the Internet without the approval of his
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treatment provider. Less than a month later, on January 27, 2020, an intervention hearing
occurred in light of Johnson acquiring such a phone without the requisite approval. This
hearing concluded with Johnson agreeing to several additional conditions, including
monitoring of any approved Internet-capable phone and Johnson completing a twenty-day
period of continuous supervision at the Alpha House.
¶6 On March 25, 2021, Johnson was questioned about searches for adult dating sites
on his phone. On June 20, 2021, Johnson’s MSOTA provider and probation officer held a
meeting with Johnson about his engagement in the counseling process. On August 16,
2021, Johnson’s MSOTA provider terminated him from her program due to his use of the
Internet for unauthorized purposes, among other reasons. Johnson alleges that he
attempted to establish a relationship with a MSOTA-certified counselor after this
termination. His efforts, acknowledged later in testimony from his probation officer, were
not successful.
¶7 Johnson’s efforts were questionable and indicative of persistent noncompliance
with the condition that he receive treatment. One treatment provider who denied Johnson’s
application for treatment explained that they had “worked with Mr. Johnson in the past and
he didn’t complete treatment.” They detailed that Johnson’s alleged efforts to receive
treatment instead came across as a means to try “to get out from under what was appropriate
accountability within treatment[.]” The provider specified that Johnson could have
obtained treatment at a MSOTA provider had he been willing to do so under an increased
level of custody, such as wearing a house arrest monitor. Relatedly, with respect to the
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completion of a period of continuous supervision at Alpha House, the record contains no
evidence of any effort by Johnson to comply with that condition.
¶8 In response to Johnson’s termination from the MSOTA program on August 16,
2021, the State filed a petition to revoke his sentence on September 8, 2021. Prior to a
hearing on that petition, Johnson admitted that he violated certain terms and conditions of
his probation. In the subsequent disposition hearing, Johnson additionally admitted to not
having completed the twenty-day incarceration sanction at the Alpha House. Johnson’s
probation officer recommended that the court credit Johnson 875 days of elapsed time
(accounting for the time he was sentenced on August 17, 2017, to the start of Johnson’s
reported violations on January 9, 2020) and resentence him to two years, seven months,
and seven days with the DOC, a sentence that would expire in August 2024—two years
later than the potential expiration of the original sentence.
¶9 The District Court followed the officer’s recommendation by imposing a suspended
sentence of two years, seven months, and seven days in an Order of Revocation and
Imposition of Sentence entered on January 24, 2022. In adopting the officer’s
recommendation of 875 days of credit for elapsed time, the court stated that it denied
additional credit because of Johnson’s failure to comply with the terms and conditions of
the original sentence.
¶10 Johnson objected that the District Court could not follow the officer’s
recommendations because the newly-imposed sentence would conclude after his original
sentence would have ended.
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¶11 In the alternative, Johnson argues that the District Court wrongly denied him credit
for elapsed time between January 9, 2020, and August 17, 2021. Johnson alleges that the
court lacked sufficient evidence of “a continuing violation of conditions” to deny credit for
that period. He points out that no testimony related to the denial for credit of elapsed time
spanning from January 9, 2020 (the date Johnson first admitted to a violation) through
August 17, 2021 (the date after the MSOTA program terminated Johnson) occurred during
the revocation hearing. He additionally argues that the court’s “naked recital” explaining
its denial for credit for that period did not contain sufficient facts or findings.
STANDARD OF REVIEW
¶12 This Court applies an abuse of discretion standard when reviewing a district court’s
decision to revoke a suspended sentence. State v. Jardee, 2020 MT 81, ¶ 5, 399 Mont. 459,
461 P.3d 108. Only where a criminal sentence is alleged to be illegal or in excess of
statutory mandates will this Court review an issue on appeal. So long as a sentence falls
within the statutory parameters the sentence will be regarded as legal. State v. Kotwicki,
2007 MT 17, ¶ 5, 335 Mont. 344, 151 P.3d 892.
¶13 An appellate court reviews an issue of statutory interpretation as a question of law
to determine whether a district court’s interpretation is correct. A judge’s role in statutory
interpretation is to ascertain and declare what is in terms or substance contained therein,
not to insert what is omitted or to omit what has been inserted. Section 1-2-101, MCA.
A court’s function is to determine legislative intent, and where that can be determined from
the plain meaning of the words used, the plain meaning controls and the court need not go
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further or apply other means of interpretation. State v. Pennington, 2022 MT 180, ¶ 17,
410 Mont. 104, 517 P.3d 894.
¶14 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 (citation omitted). As such,
a lower court’s determination of credit for time served is reviewed for legality and we
exercise de novo review. Tippets, ¶ 10 (citation omitted).
DISCUSSION
¶15 Issue One: Does § 46-18-203(7)(a)(iii), MCA, prevent a sentencing judge in a
revocation proceeding from imposing a longer term of commitment than the original
sentence?
¶16 Johnson interprets the end date of an original sentence as immovable, even upon the
revocation of that original sentence and imposition of a new sentence at a revocation
hearing pursuant to § 46-18-203(7)(a)(iii), MCA. Under Johnson’s interpretation,
following the revocation, the sentencing judge could not legally impose any sentence with
an end date later than August 15, 2022, the date on which his original five-year sentence
was scheduled to conclude.1
¶17 Johnson’s interpretation creates a legal barrier that does not exist. Offenders must
comply with the conditions of probation for the duration of their suspended sentence and,
upon revocation of that sentence, the district court may require the offender to serve the
1
Johnson was originally sentenced to a five-year term. Upon revoking Johnson’s suspended
sentence, the District Court imposed a new sentence (two years, seven months, and seven days)
that did not exceed the length of that original sentence (five years, concurrent) nor impose any
longer imprisonment than what could have been originally imposed.
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entirety of the original sentence. See State v. Oppelt, 184 Mont. 48, 51, 601 P.2d 394, 396
(1979).
¶18 In Oppelt, the defendant challenged the revocation of his suspended sentence on the
basis that doing so would subject him to double jeopardy by enhancing his punishment.
Oppelt, 184 Mont. at 51, 601 P.2d at 396. The text of the applicable statute in that case,
§ 46-18-201(2), MCA (1979), provided that “[i]f any restrictions [imposed by a suspended
sentence were] violated, any elapsed time, except jail time, shall not be a credit against the
sentence unless the court orders otherwise.” We interpreted that to mean that the
revocation of a suspended sentence “leaves the defendant subject to execution of the
original sentence, as though it had never been suspended.” Oppelt, 184 Mont. at 52, 601
P.2d at 397 (citations omitted). The Court authorized the imposition of the entire original
sentence upon revocation of his suspended sentence. Oppelt, 184 Mont. at 51, 601 P.2d at
397. In Gonzales v. Mahoney, 2001 MT 259, 307 Mont. 228, 37 P.3d 653, we reiterated
that a “defendant under a suspended sentence lives with the knowledge that a fixed sentence
for a definite term hangs over him.” Gonzales, ¶ 6.
¶19 Though the statute has changed since Oppelt, the rationale in that decision applies
because the changes to the law altered provisions not at issue here. Both cases question
the authority to impose the entirety of the original sentence following revocation of a
suspended sentence. Under the applicable provisions of the 1979 version of the Montana
Code Annotated as well as the applicable provisions of the 2021 version, sentencing judges
have the authority to revoke a suspended sentence and to impose the entirety of the original
sentence on an offender. Compare § 46-18-203(7)(a)(iii), MCA (2021), with
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§ 46-18-201(2), MCA (1979). Under § 46-18-203(7)(a)(iii), MCA, following the
revocation of a suspended sentence, the sentencing judge may impose “any sentence that
could have been imposed that does not include a longer imprisonment or commitment term
than the original sentence.”2 This additional language makes explicit what we stated in
Oppelt—that the original sentence may be imposed upon revocation. However, this
language does not alter the requirement that the sentencing judge consider credit for
elapsed time when setting a revocation sentence for compliance violations. Section
46-18-203(7)(b), MCA.
¶20 Oppelt and Gonzales are not abnormalities in our jurisprudence. This Court has not
strayed from its precedent allowing for the imposition of an original sentence upon the
revocation of a suspended sentence. See State v. Cook, 2012 MT 34, ¶ 16, 364 Mont. 161,
272 P.3d 50 (reiterating that “[r]evocation subjects the defendant to execution of the
original sentence as though he had never been given a suspension of sentence.”); State v.
Haagenson, 2010 MT 95, ¶ 16, 356 Mont. 177, 232 P.3d 367 (following and summarizing
precedent that a revocation hearing is an “exercise of the trial court’s supervision over the
offender during probation, and the consequence of revocation is execution of a penalty
previously imposed.” (citation and quotation omitted)); State v. Lange, 237 Mont. 486,
489, 775 P.2d 213, 215 (1989) (upholding a district court’s reimposition of an original
2
The Dissent posits that our interpretation of § 46-18-203(7)(a)(iii), MCA, could allow for
sentences, because of sentence revocations, to continue into perpetuity. Dissent, ¶ 35. In fact, the
opposite is true. As noted herein, a revocation court is now mandated to credit the defendant for
any elapsed time where the defendant was in compliance with the requirements of the original
sentence.
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sentence two years into an offender’s failed attempt to comply with the conditions of a
suspended sentence); State v. LeDeau, 2009 MT 276, ¶ 17, 352 Mont. 140, 215 P.3d 672
rev’d on other grounds State v. Stiffarm, 2011 MT 9, 359 Mont. 116, 250 P.3d 300
(restating the related conclusion that “[d]ouble jeopardy is not applicable to revocation of
suspended sentences.”)
¶21 Though Johnson regarded this case as presenting a conflict between
§§ 46-18-203(7)(a)(iii) and -203(7)(b), MCA, we find that this case can be resolved solely
on the application of our prior interpretation of similar law. What has changed, as we note
below, is how the sentencing judge ought to consider and calculate elapsed time upon the
revocation of the original sentence and imposition of a new sentence. These are distinct
issues.
¶22 Issue Two: Does the record support the District Court’s denial of credit for elapsed
time following Johnson’s revocation?
¶23 Johnson asserts that the District Court failed to comply with the statutory
requirement to grant credit for time served to an offender facing the revocation of their
original sentence. According to Johnson, he should have received credit for time served
from the date he admitted to a violation of the conditions of his sentence—January 9,
2020—to the date on which he committed another violation—on August 17, 2021. The
District Court instead only granted credit for the 875 days of elapsed time that transpired
prior to the State seeking revocation.
¶24 A sentencing judge must consider credit for elapsed time when setting a revocation
sentence for compliance violations. Section 46-18-203(7)(b), MCA; see Jardee, ¶ 7
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(concluding that the 2017 version of the statute eliminated the discretion of district court
judges when deciding whether to grant or deny credit for street time). After such
consideration, the judge “shall . . . allow all of the elapsed time served without any record
or recollection of violations as credit against the sentence.” Section 46-18-203(7)(b),
MCA. A district court cannot deny credit for elapsed time “unless specific violations
during the times in question are demonstrated.” State v. Gudmundsen, 2022 MT 178, ¶ 14,
410 Mont. 67, 517 P.3d 146.
¶25 Here, Johnson argues that there was no evidence of a continuing violation in the
record from January 9, 2020, to August 17, 2021. The record, however, does not align
with Johnson’s argument. By Johnson’s own admission, he was out of compliance during
this time period. He was terminated from the treatment program on August 16, 2021, for
his noncompliance prior to that date.
¶26 As part of his original sentence, Johnson agreed to comply with all intervention
sanctions. Following Johnson’s January 9, 2020 admission to violating the terms and
conditions of that sentence, an intervention hearing was held and resulted in additional
conditions: refraining from possessing an Internet-capable phone without the requisite
permission and completing a period of continuous supervision at Alpha House. Johnson’s
probation officer testified that Johnson never completed that latter condition. Furthermore,
the record contains additional evidence of violations, such as a failure to meaningfully
participate in his treatment and continued impermissible content searches.
¶27 Recently, in Gudmundsen, we determined that a district court’s denial of credit for
elapsed time based on “repeated violations of terms and conditions” but “without a
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connection to the claimed period” was insufficient. Gudmundsen, ¶ 10. We clarified that
a district court cannot deny credit for elapsed time “unless specific violations during the
times in question are demonstrated.” Gudmundsen, ¶ 14.
¶28 In Pennington, we determined a sentence was illegal because the sentencing judge
denied credit for elapsed time based merely on reviewing the file “numerous times” and
concluding “that the sentence imposed was the best sentence for rehabilitation of the
defendant.” Pennington, ¶ 29. We reiterated the requirement that a sentencing judge’s
order denying credit for elapsed time be based on a specific record or recollection of a
violation during the period claimed as elapsed time by the defendant. Pennington, ¶ 29.
¶29 Here, the record contains substantial evidence of Johnson’s continuous violations
during the claimed period.3 Johnson failed to participate in his treatment program or take
the necessary steps to find a replacement MSOTA provider. He also made no demonstrated
effort to comply with the Alpha House condition. Johnson’s specific and ongoing
violations of the conditions imposed on January 9, 2020, serve as a sufficient basis upon
which to deny credit for elapsed time beyond the already-awarded 875 days of elapsed time
during which there was no documented record of violations.
CONCLUSION
¶30 The Thirteenth Judicial District Court judgment did not violate
§ 46-18-203(7)(a)(iii), MCA, nor § 46-18-203(7)(b), MCA, in sentencing Johnson to a
3
Johnson suggests that the District Court’s order was flawed for failure to include more specifics.
However, the court noted the record and, in particular, the defendant’s admissions and the hearing
transcript, which demonstrates that the court was clearly enmeshed in the process.
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term no greater than his original sentence and in denying credit for elapsed time,
respectively.
¶31 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ BETH BAKER
/S/ INGRID GUSTAFSON
/S/ DIRK M. SANDEFUR
Justice Laurie McKinnon, dissenting.
¶32 When Johnson was sentenced to a five-year suspended term on August 17, 2017, he
had notice he would be under supervision for a fixed term, for a definite period of time—
five years. He had the right to expect that the punishment for his crime had an end date.
No one argues here that probation is not a form of punishment or supervision. When the
Court entered its dispositional Order of Revocation on January 24, 2022, Johnson had
approximately seven months remaining on his commitment term. In my view, the amount
of time remaining on his commitment term was the time that Johnson could legally be
required to serve under § 46-18-203(7)(a)(iii), MCA. The Court’s decision extends
Johnson’s period of supervision, and thus his commitment term, by nearly two years, which
exceeds that originally imposed at his initial sentencing for the offense. Montana’s
correctional and sentencing policy requires that “[s]entencing and punishment . . . be
certain, timely, consistent, and understandable.” Section 46-18-101(3)(a), MCA. Clearly,
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this means there must be a deadline after which the suspended sentence is terminated.
Otherwise, a person could be under supervision potentially indefinitely by piecemeal
revocations and extensions of commitment terms. Under the Court’s statutory
interpretation of § 46-18-203(7)(a)(iii), MCA, Johnson’s original sentence for indecent
exposure could last for the remainder of his life.
¶33 The Court relies on Oppelt, a decision from 1979, and holds the “rationale in that
decision applies because the changes to the law altered provisions not at issue here.”
Opinion, ¶ 19. However, the issue in Oppelt was not whether the sentence imposed upon
revocation exceeded the original commitment term. In fact, the term imposed upon
revocation is never mentioned in Oppelt. Rather, the significance of Oppelt was that the
Court established a revocation proceeding and subsequent sentencing did not violate a
defendant’s double jeopardy rights and that the proceeding was not a criminal adjudication.
As a springboard to its analysis, the Oppelt Court cited Roberts v. United States, 320 U.S.
264, 64 S. Ct. 113 (1943), as authority for the proposition that “[t]he revocation of
suspension of sentence leaves the defendant subject to execution of the original sentence,
as though it had never been suspended.” Oppelt, 184 Mont. at 52, 601 P.2d at 397. This
does not address the issue here: whether, pursuant to § 46-18-203(7)(a)(iii), MCA, a
sentence upon revocation may be extended beyond the remaining time of Johnson’s
original “commitment term.” Because Roberts did not address the imposition of a sentence
that extended supervision beyond the term of the remaining commitment time, this
proposition should not undergird the Court’s analysis. The Court’s precedent following
Oppelt perpetuates the error by continuing to rely on this singular statement.
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¶34 The Court’s reading of § 46-18-203(7)(a)(iii), MCA, essentially creates a sentence
in perpetuity. If there are successive revocations, the original suspended sentence produces
a never-ending cycle of suspended sentences and incarceration periods which would clearly
exceed or extend past the originally ordered term of commitment. Moreover, the Court’s
interpretation of § 46-18-203(7)(a)(iii), MCA, gives no effect to the statutory language
“commitment term,” which must be distinguished from the immediately preceding
language, “incarceration,” first, because the legislature has chosen two different terms; and
second, because the statute employs the disjunctive “or.” There is no argument here that a
term of probation is not a term of commitment. If a probationer is under court-imposed
probation, that probationer may be incarcerated if the conditions of probation are not
followed. Probation is a matter of conditional liberty that is not a right or entitlement.
However, probation is a sentence. The fact that sanctions and incentives may be utilized
to avoid a revocation does not authorize a longer sentence when the revocation is finally
filed. Probation officers have the discretion to assess, within the context of a commitment
term that is expiring, whether to continue to attempt rehabilitation or to file the revocation
petition. Undisputedly, probation starts at the time of sentencing and is contemplated by
the sentencing judge at the time the original sentence is imposed. The commitment term
may include a period of incarceration, but under § 46-18-203(7)(a)(iii), MCA, it cannot
extend the commitment term—as it would when a sentence imposed upon revocation
exceeds the remaining balance of the term. Any other statutory interpretation is at odds
with the sentencing policy of this state, the specific provisions of § 46-18-203(7)(a)(iii),
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MCA, and a defendant’s right to have an originally imposed term of commitment
respected.
¶35 I understand that consideration of elapsed time may reduce the time imposed upon
revocation, thus appearing to effectuate some criminal justice reform by aligning the
reimposed sentence more with the commitment term a defendant initially understood he
was receiving. I do not think, however, § 46-18-203, MCA, and—more to the point—this
Court’s interpretation of § 46-18-203, MCA, is consistent with the goals of Montana’s
sentencing policy nor furthers the ends of criminal justice reform the revisions to
§ 46-18-203, MCA, sought to achieve. Section 46-18-203(7)(a)(iii), MCA, as interpreted
by this Court, remains fundamentally inconsistent with the policy that sentencing be
“certain . . . consistent, and understandable.” Section 46-18-101(3)(a), MCA. Although
the Montana Incentive and Intervention Grid (MIIG) and the concept of elapsed time may
appear to be an effort at criminal justice reform, in my opinion it remains contrived and
fosters a game of cat-and-mouse, particularly when a defendant nears the end of his
commitment term, is revoked, and a sentence is imposed extending his term of supervision.
I would reject such benevolent interference, codified by the MIIG and “elapsed time,” in
favor of a certain, consistent, and understandable commitment term. Further, this Court
has been inundated with appeals pertaining to the MIIG and miscalculations of time under
§ 46-18-203, MCA; petitions for habeas corpus relief alleging illegal sentences due to the
litigants’ and courts’ struggles in understanding the statute’s provisions; and Anders briefs,
many with concessions by the State, that § 46-18-203, MCA, was applied incorrectly for
purposes of calculating time and following the MIIG. Not including orders of dismissal
15
pursuant to Anders, there have been over seventy cases since 2017 where this Court has
addressed alleged errors involving the MIIG and elapsed time. Here, while the Court relies
on precedent and the elapsed time provision in § 46-18-203, MCA, to mitigate the impact
of sentences in perpetuity, the outcome, attributable to both the legislature and this Court,
nonetheless remains a commitment term and supervision by the DOC extending beyond
what the initial sentencing judge originally imposed. Certainly, there are 49 other
“experiments” and the federal system from which to draw and correct these ills—and it
may take several attempts to get it right. But defendants have the right to notice of the term
of commitment they will have to serve and to expect the punishment for their crimes has
an end date—a deadline after which they will be done with DOC supervision, courts, and
the criminal justice system—and a date for which they can strive to move on with their
lives.
¶36 I respectfully dissent.
/S/ LAURIE McKINNON
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