file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-774%20Opinion%20&%20Order.htm
IN THE SUPREME COURT OF THE STATE OF MONTANA
No. 01-774
2001 MT 246
______________
OPINION AND ORDER
KEVIN GUNDRUM,
Petitioner,
v.
MIKE MAHONEY,
DEPARTMENT OF CORRECTIONS, et al.,
Respondent.
______________
¶1 Kevin Gundrum (Gundrum) petitions this Court for a writ of habeas corpus. We deny
the writ.
¶2 The following issues are raised:
¶3 Does § 46-23-1012, MCA, apply to parole revocation proceedings?
¶4 Is the Petitioner entitled to good time credits?
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-774%20Opinion%20&%20Order.htm (1 of 5)3/23/2007 1:56:09 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-774%20Opinion%20&%20Order.htm
¶5 Is the Petitioner entitled to credit for time served?
FACTUAL AND PROCEDURAL BACKGROUND
¶6 On March 24, 1987, the Eleventh Judicial District Court, Flathead County, sentenced
Gundrum to a term of ten years at the Montana State Prison (MSP), with six suspended,
for the felony offense of Issuing a Bad Check. On May 3, 1989, the court sentenced
Gundrum to a term of sixteen years at MSP, with twelve suspended, for the felony
offenses of Burglary and Forgery. Gundrum's suspended sentences were subsequently
revoked.
¶7 The parole board granted Gundrum parole, however law enforcement authorities
arrested Gundrum on a parole violation warrant on April 20, 2000. The Department of
Corrections returned Gundrum to MSP and, after a hearing, the parole board revoked
Gundrum's parole. Gundrum filed a writ of habeas corpus challenging the procedure
underlying the revocation of his parole as well as the Department of Corrections'
calculation of good time credits and credit for time served.
DISCUSSION
¶8 Does § 46-23-1012, MCA, apply to parole revocation proceedings?
¶9 Subject to limitations, the writ of habeas corpus permits every person imprisoned or
otherwise restrained of liberty to inquire into the cause of imprisonment or restraint and, if
illegal, to be delivered from the imprisonment or restraint. Section 46-22-101(1), MCA.
¶10 Gundrum first alleges that he is illegally restrained because he was not afforded a
probable cause hearing within 36 hours of his arrest as provided in § 46-23-1012(4), MCA
(1999), and discussed in State v. Giddings, 2001 MT 76, 305 Mont. 74, 29 P.3d 475, and
State v. Goebel, 2001 MT 155, 306 Mont. 83, 31 P.3d 340. In support of his argument,
Gundrum points to the following language from our decision in Goebel:
[T]he statute applies to those individuals whose probation or parole was revoked
between April 28, 1999, the effective date of § 46-23-1012, MCA (1999), and May
1, 2001, the effective date of § 46-23-1012, MCA (2001).
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-774%20Opinion%20&%20Order.htm (2 of 5)3/23/2007 1:56:09 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-774%20Opinion%20&%20Order.htm
Goebel, ¶ 31 (emphasis added).
¶11 The State claims that this language in Goebel referring to "probation or parole"
revocations is an error. The State claims § 46-23-1012, MCA, applies only to probation
violation proceedings. As such, the State argues that § 46-23-1012, MCA, Giddings and
Goebel do not apply to Gundrum's arrest for parole violations or his parole revocation
hearing.
¶12 We agree with the State. Section 46-23-1012, MCA, governs arrests when violations
of probation are alleged, while a separate statute, § 46-23-1023, MCA, governs arrests of
alleged parole violators. In addition, both Giddings and Goebel dealt with probation
violations rather than parole violations. Therefore, we conclude that our reference to
parole revocation proceedings in Goebel was an error, and we hold that § 46-23-1012,
MCA, applies only to probation revocation proceedings.
¶13 Here, Gundrum's parole, rather than probation, was revoked. Accordingly, § 46-23-
1012, MCA, does not apply to Gundrum's parole revocation proceedings, and he was not
entitled to a probable cause hearing within 36 hours of his arrest. We conclude that
Gundrum is thus legally incarcerated.
¶14 Is the Petitioner entitled to good time credits?
¶15 Gundrum was arrested on April 20, 2000, for a parole violation and incarcerated. He
was then returned to MSP on June 2, 2000. He claims that while the parole board awarded
him credit for time served for these 43 days, it did not award good time credits. Citing
MacPheat v. Mahoney, 2000 MT 62, 299 Mont. 46, 997 P.2d 753, Gundrum claims he is
entitled to good time credits for the 43 days.
¶16 The State claims that the Department of Corrections has recently re-evaluated its good
time policy, and it will award Gundrum the good time credits he seeks if appropriate under
the new policy. We conclude that Gundrum remains legally incarcerated during this
process.
¶17 Is the Petitioner entitled to credit for time served?
¶18 Gundrum was placed on probation on August 11, 1992, and a bench warrant was
issued for his arrest on probation violations on December 7, 1993. Gundrum claims that he
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-774%20Opinion%20&%20Order.htm (3 of 5)3/23/2007 1:56:09 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-774%20Opinion%20&%20Order.htm
should receive credit for this period of time under § 46-18-402, MCA, even though he was
not incarcerated.
¶19 The State responds that under § 46-18-203(7)(b), MCA, and McDermott v. Montana
Dept. of Corrections, 2001 MT 134, ¶ 45, 305 Mont. 462, ¶ 45, 29 P.3d 992, ¶ 45, a judge
has complete discretion to consider the elapsed time that an offender is on probation, and
he or she may either expressly allow or reject the time as credit on the offender's sentence.
The State contends that Gundrum does not assert that the sentencing court failed to follow
the mandates of § 46-18-203(7)(b), MCA.
¶20 We agree. First, Gundrum admits he was not incarcerated during this time. Rather, he
was released on probation. Consequently, § 46-18-402, MCA, pertaining to an award of
credit for time served while imprisoned is inapplicable. Second, § 46-18-203(7)(b), MCA,
governs the revocation of suspended sentences and allows a district court judge to reject
all or part of the time an offender serves on probation as a credit against his sentence.
Here, the District Court stated in its May 22, 1997, Order of Revocation, Judgment and
Sentence that given the nature of Gundrum's violations and the magnitude of his financial
obligations, he was not to be given credit for time otherwise served on probation.
Accordingly, Gundrum is not entitled to credit for time he was released on probation in
this case.
¶21 Since Gundrum fails to demonstrate that the cause of his imprisonment or restraint is
illegal, his writ of habeas corpus is hereby denied.
DATED this 6th day of December, 2001.
/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ JIM REGNIER
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ TERRY N. TRIEWEILER
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-774%20Opinion%20&%20Order.htm (4 of 5)3/23/2007 1:56:09 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-774%20Opinion%20&%20Order.htm
/S/ JIM RICE
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-774%20Opinion%20&%20Order.htm (5 of 5)3/23/2007 1:56:09 PM