NO. 93-211
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
SHERMAN P. HAWKINS,
Plaintiff and Appellant,
-vs-
JANET COX, DAN RUSSELL, JAMES OBIE,
JACK MCCORMICK, STATE OF MONTANA,
Defendants and Respondents.
APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Powell,
The Honorable Ted L. Mizner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Sherman P. Hawkins, Deer Lodge, Montana, Pro Se
For Respondent:
James B. Obie, David L. Ohler, Legal Counsel,
Department of Corrections & Human Services, Helena,
Montana
Justice John Conway Harrison delivered the Opinion of the Court.
Appellant Sherman Hawkins (Hawkins) appeals from an order of
the Third Judicial District Court, Powell County, determining that
he received the proper amount of credit for the days he was
incarcerated prior to his conviction and sentencing and for good
time earned during that period of incarceration. Hawkins sued the
respondents (collectively referred to herein as the State) in their
official capacities within the Department of Corrections and Human
Services. We affirm.
The sole issue on appeal is whether the District Court erred
in determining that Hawkins received the proper credit.
On September 28, 1973, Hawkins received a life sentence for
his conviction of murder in the first degree. He received seventy-
one days credit for the time he spent in jail prior to sentencing.
He was released on a work furlough to the Billings area in January
1984. In February 1987, Hawkins' furlough was revoked and he was
returned to Montana State Prison to continue serving the life
sentence. Hawkins' furlough was revoked because of an incident in
which he was eventually charged with assault, criminal possession
of dangerous drugs, carrying a concealed weapon, and escape.
After Hawkins was found guilty by a jury of criminal
possession of dangerous drugs, Judge Baugh sentenced him on May 23,
1988, to five years in prison to be served consecutively to the
life sentence Hawkins was then serving. The judgment stated,
"Defendant shall receive credit for time spent in continuous
incarceration from February 16, 1987 through May 24, 1988 (464
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days)." Judge Baugh also designated Hawkins a persistent felony
offender and sentenced him to another ten years to be served
consecutively to the five-year sentence and the life sentence.
After a subsequent trial, a jury found Hawkins guilty of
assault. Judge Baugh sentenced him to a term of nine years to be
served consecutively to the other sentences. Judge Baugh stated
that "defendant is to receive credit for four hundred and sixty
four (464) days time served to be applied against the nine (9) year
sentence for Assault (Felony) as it also was previously applied
against the five (5) year sentence for Count III: Criminal
Possession of Dangerous Drugs." Judge Baugh also designated
Hawkins a persistent felony offender and sentenced him to thirteen
years to be served consecutively to the other sentences.
On July 10, 1991, Hawkins filed an amended complaint in
District Court alleging that the State had "refused to apply the
464 days of jail-time to either of the sentences imposed by the
sentencing court." He claimed that his parole eligibility date was
not accurate because of this alleged refusal. He sought a judgment
"instructing the [State] to apply the 464 days to both sentences or
928 days total, as directed by the sentencing judge."
The State alleged in its answer that the 464 days had been
applied to Hawkins' sentence as requested by Judge Baugh in his
sentencing order and as clarified in a letter he wrote to the
State's legal counsel. The State asserted that Janet Cox, Records
Supervisor at Montana State Prison, had accomplished the credit by
moving Hawkins' prison commencement date 464 days back in time.
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After a hearing on December 30, 1991, the District Court
entered an opinion and order. The court determined that by then
Hawkins had been credited with 464 days jail time on both the
possession and assault sentences. Noting that Hawkins had
complained that he should also receive good time on the jail time
credited to his sentences, the court determined that Hawkins had
been properly credited with all good time earned while in prison.
The court also ordered that the State's proposed findings and
conclusions be adopted.
Hawkins then petitioned the District Court for a rehearing,
claiming that the court's opinion and order contained errors of
both fact and law. Hawkins claimed error in fact because the State
asserted in its proposed findings and conclusions, which the court
adopted, that Hawkins was not incarcerated at Montana State Prison
during the 464 days. Hawkins claimed an error in law because the
court denied good time for the 464 days credited to the possession
and assault sentences.
The District Court granted Hawkins' request for rehearing.
After the rehearing Hawkins filed a motion for judgment on the
pleadings. The State objected to that motion and filed a cross-
motion for summary judgment. On March 4, 1993, the District Court
entered the order from which Hawkins appeals. The court made the
following findings: 1) Hawkins had received 464 days credit on each
of the two new consecutive sentences (i.e. the possession and
assault sentences); 2) Hawkins received good time during the 464
day period spent at Montana State Prison prior to the new
4
convictions; 3) the good time earned during that period was applied
to the original life sentence; 4) Hawkins also wanted good time
applied to each of the two new sentences for that 464 day period.
The court concluded that Hawkins was not entitled to good time
on the 464 days for the two new sentences because they were
determined to be n'pre-conviction days " for which Hawkins received
credit as though it were jail time. The court also granted the
State's motion fox summary judgment.
We begin our discussion by clarifying the procedural posture
of this case and the standard of review we will apply. After the
court held two separate hearings on this matter, Hawkins moved for
judgment on the pleadings and the State moved for summary judgment.
However, these motions were procedurally untimely and
inappropriate. See Clayton v. Atlantic Richfield Co. (1986), 221
Mont. 166, 717 P..2d 558 (Rule 12(c) motion for judgment on the
pleadings was procedurally incorrect where the district court was
asked to consider matters beyond the pleadings in order to resolve
the issues); and Berens v. Wilson (1990), 246 Mont. 269, 271, 806
P.2d 14, 16, where we said that "[t]he purpose of Rule 56,
M.R.Civ.P., is to dispose of those actions which fail to raise
genuine issues of material fact, thereby eliminating the burden and
expense of an unnecessary trial." By the time the parties made
their motions, the District Court had already considered matters
far beyond the scope provided for by Rule 12(c) and Rule 56,
M.R.Civ.P. It had held two hearings at which witnesses testified
and the parties introduced documentary evidence. Therefore, the
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motions were untimely.
Our standard of review, therefore, will focus on the findings
and conclusions of the District Court and not on whether it
properly granted summary judgment. We will not set aside a
district court's findings of fact unless they are clearly
erroneous. Rule 52(a), M.R.Civ.P.; Weber v. Rivera (1992), 255
Mont. 195, 198, 841 P.2d 534, 536. In reviewing conclusions of law
we look to whether the district court's determination is correct.
Weber, 841 P.2d at 537.
Hawkins claims that he has not received credit for 464 days on
each of his two new sentences, or a total of 928 days, as ordered
by Judge Baugh. The State introduced a diagram at trial which
illustrated how Hawkins' sentence had been credited with a total of
999 days (928 days credit for the present sentences and 71 days
credit for the life sentence). Hawkins introduced letters from
Janet Cox in which she explained how the credits are factored into
a sentence for purposes of determining a parole eligibility date.
The letter explained that the credits are "backed off" the original
sentence commencement date to create a fictitious sentence
commencement date. In Hawkins' case this meant that his sentence
commencement date for purposes of determining parole eligibility
was January 25, 1.971, rather than September 28, 1973. To that
date, the full statutory amount to be served on each sentence would
be added and any credit for good time already earned would be
subtracted. In this case that meant adding twenty-five years for
Hawkins' life sentence; three years and nine months (which is one-
6
quarter of the fifteen years for possession and persistent felony
offender designation); and eleven years (which is one-half of the
twenty-two years for assault and persistent felony offender
designation). Lastly, Cox's letter explained, a parole eligibility
date would be projected based on the rate of good time the inmate
is currently receiving.
Hawkins fails to understand that this method credits an inmate
fully. It compensates for using the full statutory amount that the
inmate must serve on a sentence by moving the commencement date to
a fictitious ear:Lier date. There is nothing wrong with this
method. Hawkins' inability to understand this does not change the
fact that the evidence supports the District Court's finding that
he has been credited with a total of 928 days.
Next, Hawkins argues that he was entitled to earn good time
during that 464 days to be applied to the life sentence and to the
two new sentences., He claims that all three sentences were to run
concurrently for t.he 464 days, and he claims that case law requires
that he receive good time credit for all three. The District Court
determined that Hawkins was to receive credit for the days he spent
incarcerated prior to conviction. This credit is required by 5 46-
18-403, MCA. However, the court concluded that he was not entitled
to good time credit on the new sentences.
In its order the court stated, "The 464 days as to [the] new
sentences have been determined to be pre-conviction days and thus
Plaintiff has received credit for that time as though it were jail
time. Plaintiff has therefore received day-for-day credit on each
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of the two new convictions for the 464 days plus good time credit
applied to the life sentence during the same 464 days."
Judge Baugh's intent is unclear. In his judgment on the
possession offense, Judge Baugh indicated that Hawkins was to
receive "credit for time spent in continuous incarceration from
February 16, 198'7 through May 24, 1988 (464 days)." In his
judgment on the assault conviction he stated that "defendant is to
receive credit for four hundred and sixty four (464) days time
served to be applied against the nine (9) year sentence for Assault
(Felony) . . . .I0 In his letter clarifying his judgment, Judge
Baugh stated:
On these recent convictions in my court Mr. Hawkins got
five years for possession less 464 days credit plus ten
years for persistent felony offender. He also got nine
years for assault less 464 days credit plus thirteen
years for persistent felony offender. I intended all of
these (including the life sentence) to run consecutively
to one another.
The reason Hawkins was in prison rather than the Yellowstone
County Detention Facility was because he was returned to the prison
to continue serving the life sentence. He was returned to prison
on February 27, 1987, but not convicted on the new charges until
Apri11988. We conclude substantial credible evidence supports the
District Court's determination that these were pre-conviction days
for which Hawkins was to receive credit as jail time.
Relying on State v. Forsyth (1988), 233 Mont. 389, 761 P.2d
363, and North Carolina v. Pearce (1969), 395 U.S. 711, 89 S.Ct.
2072, 23 L.Ed.2d 656, however, Hawkins argues that he was entitled
to good time credits during that period for each of the new
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sentences as well as the life sentence. These cases are
inapplicable. Forsvth did not discuss good time. Pearce involved
a defendant whose conviction was set aside after he had served two
and a half years in prison: he was retried and convicted a second
time. The United States Supreme Court held that it was error to
deny him credit for the time spent in prison on the original
judgment. 395 U.S. at 718-19. In a footnote, the Court indicated
that he should also receive any credits he had earned for good
behavior. 395 U.S. at 719, n. 13. The facts of Pearce would be
governed by 3 46-18-402, MCA, which specifically provides for the
granting of good time earned "[w]here defendant has served any
portion of his sentence under a commitment based upon a judgment
which is subsequently declared invalid or which is modified during
the term of imprisonment . . . .I' This statute does not apply to
Hawkins.
Under Department of Corrections and Human Services Policy
Number 505, vrGood time accrual shall begin on the first day of
custody after the inmate is sentenced to confinement in a State
correctional facility." Hawkins had not been sentenced to
confinement on the possession or assault charges during the 464
days; therefore, be was not entitled to good time under the policy.
He cannot in effect accrue triple credit for good time because he
violated conditions of his furlough and was returned to Montana
State Prison rather than spending that time in county jail, where
he clearly would not be entitled to earn good time credit.
Affirmed.
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Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter and West Publishing Company.
We concur: F
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August 17, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Sherman P. Hawkins
700 Conley Lake Rd.
Deer Lodge, MT 59722
James B. Obie, Chief Legal Counsel
Dept. of Corrections & Human Services
1539-11th Ave.
Helena, MT 59620
ED SMITH
CLERK OF THE SUPREME COURT
STAWF, FONTANA
DeP&J