No. 14252
IN THE SUPREME COURT OF THE STATE OF MONTANA
KEVIN T. MURPHY,
Petitioner,
VS.
STATE OF MONTANA,
Respondent.
ORIGINAL PROCEEDING:
Decided: hfRR 2 7 1979
Filed: W 2
R 1Q79
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
Petitioner, Kevin T. Murphy, filed a pro se application
for habeas corpus on April 10, 1978. By order of July 21, 1978
this petition was denied as a proceeding for habeas corpus but
it was decided that the portions of the petition concerning
sentence imposed upon the petitioner would be treated as a pe-
tition for post conviction relief under Title 95, Ch. 26, R.C.M.
1947, now Title 46, Ch. 21 MCA.
Kevin T. Murphy was found guilty by a jury on September
23, 1976 of a burglary committed on May 3, 1976. He was sentenced
on October 1, 1976 to confinement in the State Prison for the term
of not less than 10 years. The order of commitment contains the
following:
"It is further ordered and adjudged and this
order does order and adjudge that said defendant,
Kevin T. Murphy, is a persistent offender, and
that said Defendant receive no credit for the
time served to date in the Silver Bow County Jail.
That the defendant is not to be granted good time
as a first offender, but must earn his own credit
for good time."
One issue raised by petitioner is whether a letter dated
September 28, 1976 addressed to the sentencing judge and signed
by John Lynch as parole and probation officer at Butte, Montana
was used as a presentence report by the judge at the sentencing
on October 1, 1976.
The memorandum filed by the Silver Bow County Attorney
in response to the court order of July 21, 1978 raised factual
questions as to his letter. The court ordered an evidentiary
hearing in the District Court. The hearing was held on January
26, 1979 and on February 14, 1979 the judge of the District Court
filed an order and judgment with this Court.
In part the order states:
"That an evidentiary hearing was had and a report
dated September 28, 1976 of the Pardon and Parole
Officer, namely John Lynch, was entered in evidence,
and said report was recognized by the court as being
the same as was served upon the parties and delivered
to the Court before sentencing in this matter which
had occurred on the first day of October, 1976."
The order then confirmed the order of October 1, 1976.
The Silver Bow County Attorney's brief states:
"This letter, dated September 28, 1976, is in the
form of an arrest record of the Defendant while
under the supervision of Probation and Parole Office.
This letter is not in the proper form of a presen-
tence as required by Section 95-2004, R.C.M. 1947
(now section 46-18-112 MCA) ...
The letter after listing ten arrests from March 1973 to
February 1976 concludes as follows:
"Along with the current charge, there have been a
total of six charges involving burglary that Kevin
Murphy has been involved in during the time this
office has been associated with him - a period of
a little over three years.
"During this time, we have attempted to work with
him in every way possible. We have tried to get
him help for his drug and alcohol problems but he
has been totally unreceptive.
"At this time, the only alternative I can recommend
is incarceration in Montana State Prison."
The memorandum of the Silver Bow County Attorney states:
"In March, 1973 petitioner KEVIN T. MURPHY entered
a plea of Guilty to the charge of Burglary, a Felony,
in the District Court of the First Judicial District,
Lewis and Clark County, and received a three (3) year
Deferred Imposition of Sentence. In September, 1974,
the Petitioner entered a plea of Guilty to the charge
of Burglary, a Felony, in the District Court of the
Second Judicial District, Butte-Silver Bow County,
and received a one (1) year Deferred Imposition of
Sentence. The Petitioner completed the probationary
period in both cases without being revoked. Motions
by the Petitioner to have these Guilty pleas expunged
from the Court records were not filed until November,
1977.
"Based on the two (2) above-mentioned cases the Peti-
tioner was found to be a persistent Felony offender,
pursuant to Section 95-2206.5, R.C.M. 1947, (section
repealed by section 6, Ch. 340, Laws of 1977) after
he was found Guilty of Burglary, a Felony, on October
1, 1976. . ."
From the above it is clear that the letter of September 28,
1976 was used as a presentence investigation. Further it did not
comply with the requirements of section 95-2204, R.C.M. 1947,
now 46-18-112 MCA, and while there may be discretion in the trial
judge not to order a presentence investigation under section
95-2203, R.C.M. 1947, now 46-18-111 MCA, such was not the case
here; especially where the report was used to find the defendant
a persistent offender. Under section 95-2206.5, enacted by Sec-
tion 2, Ch. 312, Laws of 1975. Repealed by Section 6, Ch. 340,
Laws of 1977.
Also enacted by Ch. 12 as Section 3, Laws of 1975 was an
amendment of section 95-3214, R.C.M. 1947, now section 46-23-
201 MCA but amended by Section 60, Ch. 184, Laws of 1977, amended
Section 3, Ch. 340, Laws of 1977, and amended Section 3, Ch. 580,
Laws of 1977, which provided that no convict serving a time sen-
tence could be paroled until he had served at least one-third
of his full term, less good time allowance off if he were desig-
nated a persistent felony offender under section 95-2206.5 as
opposed to serving one-fourth of a full term less good time allow-
ance off if not a persistent felony offender.
The defendant therefore is entitled to be returned to the
District Court in Silver Bow County for resentencing for the follow-
ing reasons:
(1) The letter of September 28, 1976 did not comply with
section 95-2204, R.C.M. 1947, now 4.6-18-112MCA, and the proce-
dure set out in Kuhl v. District Court (1961), 139 Mont. 536, 366
P.2d 347, 351.
(2) The denial of credit for time served in the Silver
Bow County jail before conviction is error. Section 95-2215, R.C.M.
1947, now section 46-18-403 MCA, states:
"Credit for incarceration prior to conviction.
(a) Any person incarcerated on a bailable offense
and against whom a judgment of imprisonment is
rendered shall be allowed credit for each day of
incarceration prior to or after conviction . . ."
Such credit is granted by the statute as a matter of
right. Maldanado v. Crist (1973), 162 Mont. 240, 510 P.2d
887; State ex rel. Bovee v. District Court (1973), 162 Mont. 98,
508 P.2d 1056; In the Matter of Hanson (1976), 169 Mont. 80, 544
P.2d 816; Matter of LeDesma (1976), Mont . , 554 P.2d 751,
33 St.Rep. 902.
The remaining issue presented is not ready for decision.
As stated above the court apparently relied on two previous
deferred impositions of sentence to find defendant a persistent
felony offender under section 95-2206.5, R.C.M. 1947 as it existed
on October 1, 1976.
Section 95-2207, R.C.M. 1947, now 46-18-204 MCA, provides
for dismissal after deferred imposition.
"Whenever the court has deferred the imposition of
sentence and after termination of the time period
during which imposition of sentence has been deferred,
upon motion of the court, the defendant, or the de-
fendant's attorney, the court may allow the defen-
dant to withdraw his plea of guilty or may strike the
verdict of guilty from the record and order that the
charge or charges against him be dismissed."
Here the defendant did not move until November 1977, more
than a year after the October 1, 1976 sentence, to have the pleas
of guilty withdrawn and the charges dismissed.
As to the question of whether a guilty plea followed by a
deferred imposition of sentence can be relied upon by the State
as a prior felony conviction in order to invoke the persistent
felony offender statute, sufficient facts are not known. As this
matter must be returned to the District Court for resentencing
the issue should be addressed by the District Court.
In passing it should be noted that other courts have come
to different conclusions on this or similar issues. See State v.
Drew (1971), 158 Mont. 214, 490 P.2d 230.
Judge Russell Smith refers to it as "adopting the Omar
Khayyam approach". Fite v. Retail Credit Company (D.C.Mont. 1975),
For a good discussion of the development of the similar
California statute, California Penal Code, Sec. 1203.4, see
State v. Walker, 14 Wash.App. 348, 541 P.2d 1237, 1240; see also
State v. Bock (1958), 80 Idaho 296, 311, 328 P.2d 1065; ~adilla
v. State (1977), 90 N.M. 664, 568 P.2d 190; (1949) 2 Stanford L.
Rev. 221; (1954) 27 S.Cal. L.Rev. 327.
As to the definition of conviction under such a statute
see 12 S.Cal. L.Rev. 201.
Effect of expungement on criminal conviction, (1967), 40
S.Cal. L.Rev. 127; Expungement myth, (1963) 28 Los Angeles Bar
Bulletin (1963) 161; Wiping out a criminal or juvenile federal
jury, L. Baum (1965), 40 S.Bar J. 816.
The sentence is vacated and the cause remanded to the
District Court with directions to resentence petitioner Kevin T.
Murphy in a manner not inconsistent with this opinion.
Chief Justice
s'
Jus ices