96-419
No. 96-419
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
STATE OF MONTANA,
Plaintiff and Respondent,
v.
BILLIE L. PENDERGRASS,
Defendant and Appellant.
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:
Billie Leon Pendergrass, Pro Se, Prineville,
Oregon
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Jennifer Anders, Ass't Attorney General, Helena,
Montana
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Submitted on Briefs: December 12, 1996
Decided: February 4, 1997
Filed:
__________________________________________
Clerk
Justice Karla M. Gray delivered the Opinion of the Court.
Billie Leon Pendergrass (Pendergrass) appeals from the
judgment and sentence entered by the Third Judicial District Court,
Powell County, on his conviction of the offense of misdemeanor
escape. We affirm.
The dispositive issue on appeal is whether the District Court
erred in concluding that Pendergrassþ escape sentence did not merge
with the other sentences he was serving.
The following facts are undisputed. Pendergrass was an inmate
at the Montana State Prison (MSP) serving terms of imprisonment
exceeding thirty years on sentences imposed by district courts in
Flathead and Lewis and Clark Counties between 1975 and 1979. On or
about August 20, 1990, Pendergrass walked away from his prison job
at the Territorial Prison Museum. He subsequently turned himself
in and was charged with the offense of felony escape under 45-7-
306, MCA. Pendergrass pled guilty to the charge and, in March of
1991, the District Court sentenced him to a three-year term of
imprisonment at the MSP. The court specified that the sentence was
to run consecutively to the sentences Pendergrass was serving.
Pendergrass was paroled on or about April 20, 1992. In the
spring of 1994, his parole was revoked and he was returned to the
MSP. Thereafter, he filed a habeas corpus petition with the
District Court, claiming that he had served all of his sentences,
including the escape sentence, because his sentences merged and
began to run concurrently when he was paroled. The District Court
denied his petition on the grounds that the consecutive sentences
ran concurrently only while Pendergrass remained on parole.
In December of 1994, Pendergrass filed a habeas corpus
petition with this Court. He claimed that, pursuant to 46-18-
401(5), MCA, he had served all of his sentences--including the
felony escape sentence--because the consecutive sentences merged
and began to run concurrently when he was paroled. We denied his
petition in August of 1995, on the grounds that the merger
provision contained in 46-18-401(5), MCA, applies only if the
sentencing court does not specify whether the sentences are to run
concurrently or consecutively. In Pendergrass' case, the sent-
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encing courts specified whether the sentences imposed were
concurrent or consecutive and, therefore, the 46-18-401(5), MCA,
merger provision did not apply.
In 1996, Pendergrass moved the District Court for correction
of his felony escape sentence pursuant to our decision in State v.
Nelson (1996), 275 Mont. 86, 910 P.2d 247. He also petitioned this
Court for postconviction relief claiming that, under Nelson, he had
been erroneously sentenced in 1991 for felony escape. We granted
his petition and remanded to the District Court for resentencing
under the misdemeanor escape provisions of 45-7-306, MCA. At the
resentencing hearing, Pendergrass again argued that his escape
sentence and the other sentences he was serving merged and began
running concurrently when he was paroled. The District Court again
rejected this argument and sentenced Pendergrass to six months in
the Powell County Jail for misdemeanor escape, suspended on the
condition that he pay a $500 fine to the Powell County Clerk of
Court within four months of his release from prison. Pendergrass
appeals.
Did the District Court err in concluding that
Pendergrassþ escape sentence did not merge with the other
sentences he was serving?
The District Court's resentencing order states that "the
sentence imposed hereby does not merge with the sentences presently
being served by [Pendergrass] as argued by [him]." District courts
have broad discretion in sentencing criminal defendants and we
ordinarily review sentences only to determine whether the court
abused its discretion. State v. Zabawa (Mont. 1996), 928 P.2d 151,
157, 53 St.Rep. 1162, 1166 (citation omitted). Here, however, the
District Court made a legal conclusion that Pendergrassþ sentences
did not merge. We review a district courtþs conclusion of law to
determine whether its interpretation of the law is correct. State
v. Vargas (Mont. 1996), 928 P.2d 165, 166, 53 St.Rep. 1184, 1185
(citation omitted).
Pendergrass acknowledges that both the District Court and this
Court previously have denied his merger arguments in the context of
his escape sentence. Nevertheless, based on his underlying
argument that the escape sentence merged with his other sentences
and that all of the sentences began running concurrently when he
was paroled in April of 1992, he contends in this appeal that the
District Court was required to give him credit for time served
pursuant to 46-18-402, MCA. The State of Montana argues that our
denial of Pendergrass' merger argument in his previous habeas
corpus action is now the law of the case and, therefore,
Pendergrass cannot argue to the contrary in seeking credit for time
served on the escape sentence.
Under the doctrine of law of the case, a prior decision by
this Court resolving a particular issue between the same parties in
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the same case is binding and cannot be relitigated in a subsequent
appeal. State v. Smith (1993), 261 Mont. 419, 430, 863 P.2d 1000,
1007 (citing State v. Van Dyken (1990), 242 Mont. 415, 425-26, 791
P.2d 1350, 1356). Indeed, our prior decision must be adhered to
throughout all subsequent proceedings, both in the trial court and
on appeal. See Haines Pipeline Const. v. Montana Power (1994), 265
Mont. 282, 289, 876 P.2d 632, 637.
Pendergrass raised his merger argument vis-a-vis his escape
sentence in his 1994 habeas corpus action in this Court. We
rejected that argument, concluding that the merger provision
contained in 46-18-401(5), MCA, did not apply. On resentencing
in the District Court for the same escape, Pendergrass premised his
"time served" argument on the merger argument previously rejected
by this Court. The District Court was not free to ignore our
decision or to make a legal conclusion contrary to, or inconsistent
with, the law of the case as pronounced by this Court. Haines, 876
P.2d at 637. We hold, therefore, that the District Court did not
err in concluding that Pendergrassþ escape sentence did not merge
with the other sentences he was serving.
Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ WILLIAM E. HUNT, SR.
/S/ JAMES C. NELSON
/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM LEAPHART
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