State v. Allison

                                                                                         September 2 2008


                                         DA 07-0641

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2008 MT 305



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

STEPHEN D. ALLISON.

              Defendant and Appellant.


APPEAL FROM:          District Court of the Twentieth Judicial District,
                      In and For the County of Sanders, Cause No. DC-86-1223
                      Honorable C. B. McNeil, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Jim Wheelis, Chief Appellate Defender; Lisa S. Korchinski, Assistant
                      Appellate Defender, Helena, Montana

               For Appellee:

                      Hon. Mike McGrath, Montana Attorney General; J. Stuart Segrest,
                      Assistant Attorney General, Helena, Montana

                      Coleen Magera, Sanders County Attorney; Thompson Falls, Montana



                                                   Submitted on Briefs: July 30, 2008

                                                              Decided: September 2, 2008


Filed:

                      __________________________________________
                                        Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1    After Stephen D. Allison (“Allison”) violated his probation, the District Court

issued an order revoking his suspended sentence. Allison appeals the portion of the

sentence denying him credit for time served prior to August 25, 2006. We affirm.

¶2    We restate the issue as follows:

¶3    Did the District Court err in refusing to credit Allison for the time he served in

Oregon, following his arrest there and pending his return to Montana, the original

sentencing state?

                                   BACKGROUND

¶4    Allison was convicted of two counts of felony sexual assault in 1988 and

sentenced to serve two consecutive twenty-year sentences in Montana State Prison

(“MSP”). The Sanders County District Court suspended the second sentence. Once

Allison had discharged his sentence on count one, he applied for interstate compact

supervision in order to serve the remainder of his suspended sentence on count two in

Oregon. His request was granted.

¶5    Several years later, on March 24, 2005, Allison was indicted by a Deschutes

County Grand Jury for thirty-six counts of sexual abuse, sexual harassment, and other

sexual crimes. On March 29, 2005, Lee Wilson (“Wilson”),          Allison’s supervising

probation officer, completed an Offender Violation report, which stated that Allison had

been arrested by the Bend Police Department in Bend, Oregon on March 9, 2005. Wilson

attached a copy of the indictment, detailing the numerous sexual crimes Allison was

charged with committing in Oregon between December 1, 2004, and January 31, 2005.


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Wilson faxed the report to Montana on April 1, 2005, and recommended that Allison be

returned to Montana for a probation violation hearing.

¶6     The State of Montana did not take any action on the report until after Allison was

found guilty by an Oregon jury of twenty-five of the thirty-six sexual crimes he was

charged with. On August 1, 2006, the Deschutes County Circuit Court sentenced Allison

to “[s]erve 1 year in jail w/credit for time served consecutive to each other” for six of the

counts, and to sixty months probation for the remaining counts.

¶7     A month later, the State of Montana filed a petition to revoke Allison’s suspended

sentence, relying on the Offender Violation report filed March 29, 2005, and the July 28,

2006 conviction. Judge McNeil found probable cause to hold a probation violation

hearing, and issued a bench warrant for Allison’s arrest on August 25, 2006.

¶8     A probation violation hearing was held.         Allison admitted that the Oregon

convictions constituted a violation of his probation for his original Montana sentence for

the 1988 felony sexual assaults.     Following the hearing, the District Court revoked

Allison’s suspended sentence, and sentenced him to serve twenty years in MSP, with ten

years suspended. The District Court provided that Allison would not be eligible for

parole until he had completed all three phases of the MSP sex offender treatment

program. The court gave Allison credit for time served since August 25, 2006, when the

State of Montana issued the bench warrant for his arrest. Allison requested that the court

give him credit for his sentence as of March 29, 2005, when Wilson issued the Offender

Violation report. The District Court denied Allison’s request, and gave him credit only

for the time served since “the time the State of Montana put a hold on him for violation of


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the terms of his Montana probation.” Allison appeals this portion of the District Court’s

sentence.

                                 STANDARD OF REVIEW

¶9       We review a sentence for legality only; i.e., whether or not the sentence falls

within the relevant statutory parameters. State v. Clark, 2008 MT 112, ¶ 8, 342 Mont.

461, ¶ 8, 182 P.3d 62, ¶ 8.

                                        DISCUSSION

¶10      Did the District Court err in refusing to credit Allison for the time he served

in Oregon, following his arrest there and pending his return to Montana, the

original sentencing state?

¶11      Section 46-18-201(3), MCA (1987),1 provides that “credit . . . must be allowed for

jail time already served.” A defendant is entitled to credit for time served only “if the

incarceration was directly related to the offense for which the sentence is imposed.”

State v. Henderson, 2008 MT 230, ¶ 9, 344 Mont. 371, ¶ 9, --- P.3d ---, ¶ 9.

¶12      The District Court held that Allison was entitled to credit for time served

beginning August 25, 2006, the date when the court issued a bench warrant for his arrest

for allegedly violating his probation. The court further concluded he was not entitled to

any time served before that, because the prior time served was for the Oregon offenses,

and was unrelated to the Montana proceeding.

¶13      The District Court’s conclusion is supported by the evidence in the record. The

Offender Violation report indicates that Allison was arrested by the Bend Police

1
    Recodified at § 46-18-203(7)(b), MCA (2005).


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Department on March 9, 2005, after one of his victims stepped forward. The Oregon

indictment alleged that Allison committed more than thirty sexual crimes in Oregon

between December 1, 2004, and January 31, 2005.               Finally, and perhaps most

significantly, the Oregon court gave Allison credit for time served against his sentence

for these offenses. Montana took no action on the Offender Violation report until well

after Allison was convicted and sentenced by the State of Oregon for the offenses he

committed there. All the evidence in the record supports the conclusion that the time

Allison served in Deschutes County was related to his Oregon crimes, not his Montana

sentence.

¶14    Allison argues, however, that the “violations which formed the basis for the

petition to revoke Allison’s suspended sentence were exactly the same as the Oregon

indictment.” He claims that he was arrested on March 29, 2005, for violating his parole,

and thus, he is entitled to credit for time served as of that date. The Offender Violation

report, however, states that Allison was arrested on March 9, 2005. Allison was indicted

for thirty-six counts of sexual crimes on March 24, 2005. There is no record of a second

arrest for the probation violation in the record, nor did Allison present any such evidence

before the District Court. Again, Montana did not take any action on the report until

August 25, 2006, when the court issued a bench warrant for his arrest. Allison has failed

to point to any evidence in the record which supports his assertion.

                                     CONCLUSION

¶15    We conclude that the sentence imposed by the District Court was legal. The time

Allison served prior to August 25, 2006, was not related to his Montana proceeding.


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Thus, under § 46-18-201(3), MCA (1987), he is not entitled to any additional credit for

time served prior to August 25, 2006. We affirm the District Court’s sentence.


                                               /S/ W. WILLIAM LEAPHART



We concur:

/S/ KARLA M. GRAY
/S/ BRIAN MORRIS
/S/ PATRICIA COTTER
/S/ JIM RICE




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