April 13 2010
DA 09-0553
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 75
STATE OF MONTANA,
Plaintiff and Appellee,
v.
CHARLES LEE HORNSTEIN V,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC 08-0489
Honorable John W. Larson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Charles Lee Hornstein V, (self-represented litigant); Shelby, Montana
For Appellee:
Hon. Steve Bullock, Montana Attorney General; Mardell Ployhar,
Assistant Attorney General; Helena, Montana
Fred Van Valkenburg, Missoula County Attorney; Andrew W. Paul,
Deputy County Attorney; Missoula, Montana
Submitted on Briefs: March 17, 2010
Decided: April 13, 2010
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Charles Lee Hornstein V, self-represented, appeals from an order entered by the
Fourth Judicial District Court, Missoula County, denying his motion for credit to his
sentence for time served. We reverse and remand.
¶2 The sole issue on appeal is whether the District Court erred in denying Hornstein’s
motion for credit for time served.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On September 26, 2008, at the Southgate Mall in Missoula, a mall employee
recognized Hornstein as a previous shoplifter and notified mall security. A security
officer responded to the call and found Hornstein in the parking lot, but as the officer
approached, Hornstein fled and a chase ensued. The officer and the Missoula City Police
eventually apprehended Hornstein, who had four baseball caps on his person, three of
which still had store pricing tags.
¶4 Police arrested Hornstein and impounded his vehicle, which was parked in the
mall parking lot. After discovering Hornstein was on parole for a previous crime of
aggravated assault, the police contacted his parole officer, who authorized a search of
Hornstein’s vehicle. This led to the seizure of additional items previously reported stolen
from the mall and two syringes which tested positive for methamphetamine.
¶5 The State filed four charges against Hornstein: Criminal Possession of Dangerous
Drugs, a f e l o n y in violation of § 45-9-102, MCA, Criminal Possession of Drug
Paraphernalia, a misdemeanor in violation of § 45-10-103, MCA, and two counts of
2
Theft, both misdemeanors in violation of § 45-6-301(1), MCA. Hornstein initially pled
not guilty to these charges, and the District Court set bail in the amount of $50,000.
Hornstein was unable to post bail and therefore remained at the Missoula County
Detention Facility (County Jail) after his arrest on September 26, 2008. On
September 28, 2008, Hornstein’s parole officer reported that Hornstein had violated his
parole and recommended that further action be taken with regard to his parole status.
¶6 However, Hornstein was not returned to the Montana State Prison (State Prison) to
face parole-related proceedings, but instead was kept at the County Jail under the $50,000
bail to face his new charges. On May 7, 2009, Hornstein pled guilty to the new charges
pursuant to a plea agreement. The District Court sentenced Hornstein to three years with
the Department of Corrections for the Criminal Possession of Dangerous Drugs and six
months for each of the three misdemeanor counts to be served in the County Jail. The
court ordered the four sentences to run concurrently with each other, but consecutively
with Hornstein’s previous sentence for aggravated assault. The court did not grant
Hornstein credit for the 224 days1 he had served in the County Jail while his new charges
were pending, reasoning that the Board of Pardons and Parole (Parole Board) would
instead apply a credit against his underlying offense of aggravated assault.
¶7 On May 13, 2009, Hornstein was transported to the State Prison. By letter of
June 28, 2009, Hornstein asked the District Court to credit the 224 days he had served in
1
The 224-day period spans the time served from Hornstein’s arrest on September 26, 2008, to
his sentencing on May 7, 2009. The days after the May 7, 2009 sentencing are counted as time
served pursuant to his imposed sentence.
3
the County Jail to his new sentences: “[E]ven though you ordered the [new] sentence to
run consecutive to the previous cause, I must still be given credit for time served in
county jail on the new charge . . . .” Before the District Court could respond to
Hornstein’s request, the Parole Board, on June 30, 2009, revoked Hornstein’s parole and
ordered that no “dead time” 2 would be charged, meaning that the entire time that
Hornstein had been out of prison on parole, including the time spent in the County Jail,
would be counted toward his initial aggravated assault sentence. On August 12, 2009,
the District Court denied Hornstein’s motion for credit for time served in the County Jail
toward his new sentence, reasoning that because the Parole Board had already credited
the 224 days toward the aggravated assault sentence, Hornstein “is not entitled to credit
against both sentences.”
¶8 Hornstein appeals.
STANDARD OF REVIEW
¶9 We review sentences beyond one year of incarceration for legality only. State v.
Ariegwe, 2007 MT 204, ¶ 174, 338 Mont. 442, 167 P.3d 815 (citation omitted); State v.
Herman, 2008 MT 187, ¶ 11, 343 Mont. 494, 188 P.3d 978 (citations omitted). We
review “whether the court adhered to the affirmative mandates of the applicable
sentencing statutes.” Ariegwe, ¶ 174 (citations omitted).
2
“Dead time” is “the time from the issuance of a parole violation warrant to the date a violator is
arrested on that warrant, or the time a parole violator serves in a correctional facility for a
separate felony offense committed on parole.” Admin. R. M. 20.25.202(3). “The [Parole Board]
has sole discretion to determine whether this time will be counted as time served under the
term.” Admin. R. M. 20.25.202(3).
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DISCUSSION
¶10 Did the District Court err in denying Hornstein’s motion for credit for time
served?
¶11 Hornstein argues that the District Court erred by refusing to apply credit for time
served in the County Jail to his second, or new sentence. The State argues that because
the Parole Board essentially credited that same time to Hornstein’s first sentence by not
assessing any “dead time,” and because Hornstein’s new sentence was ordered to run
consecutively to his first sentence, he is not entitled to a “double credit.”
¶12 Pre-conviction jail time credit toward a sentence granted by statute is a “matter of
right.” Murphy v. State, 181 Mont. 157, 160-61, 592 P.2d 935, 937 (1979) (citations
omitted). Whether a district court properly credits time served is not a discretionary act,
but a legal mandate. State v. Hoots, 2005 MT 346, ¶ 31, 330 Mont. 144, 127 P.3d 369
(citation omitted).
¶13 Section 46-18-403(1), MCA (2007), provides: “A person incarcerated on a
bailable offense against whom a judgment of imprisonment is rendered must be allowed
credit for each day of incarceration prior to or after conviction, except that the time
allowed as a credit may not exceed the term of the prison sentence rendered.” We have
explained that the underlying purpose of § 46-18-403(1), MCA, is:
to eliminate the disparity of treatment between indigent and nonindigent
defendants. In other words, credit for time served is given so as not to
penalize indigent defendants who are unable to post bail and must remain in
custody until they are sentenced when nonindigent defendants may secure
their release and remain free during that time period.
5
State v. Kime, 2002 MT 38, ¶ 15, 308 Mont. 341, 43 P.3d 290, overruled on other
grounds by Herman, ¶ 12 and n. 1.
¶14 Hornstein’s argument relies largely upon our analysis in Kime, which addressed
the allocation of time to sentences arising from separate proceedings. See Kime, ¶¶ 3-4.
David Kime (Kime) was serving a prison sentence for felony assault but had been
released from the State Prison to participate in a supervised release program. Kime, ¶ 3.
On November 26, 2000, police arrested and jailed Kime for suspected theft and DUI
offenses. Kime, ¶ 3. The next day bail of $25,000 for the new charges was set. Kime,
¶ 3. On December 5, 2000, Kime was transferred from the jail to the State Prison. Kime,
¶ 4. Charges for the new offenses were filed on December 12, 2000. Kime, ¶ 5. Kime
eventually pled guilty to the new charges and was sentenced on April 2, 2001. Kime, ¶ 5.
Kime requested that the time between his arrest and his sentencing, about 127 days, be
credited toward his new charges, but the District Court refused, crediting only the few
days between his arrest and his transfer to the State Prison. Kime, ¶ 5. We affirmed,
reasoning that § 46-18-403(1), MCA, mandated credit to the new sentence only if the
“defendant [was] [] incarcerated on a bailable offense for which he or she receive[d] a
sentence of imprisonment” and the incarceration prior to sentencing was “directly related
to the offense for which the sentence [was] imposed.” Kime, ¶¶ 13, 16 (emphasis added).
We concluded that most of the 127 days Kime claimed were “related to his prior felony
conviction and not the charges of which he was convicted in the [new] case.” Kime, ¶ 16.
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Here, Hornstein argues that his incarceration in the County Jail was directly related to his
new charges and he is thus entitled to credit under Kime’s reasoning.
¶15 The State does not address Kime, but instead directs our attention to State v. Price,
2002 MT 150, 310 Mont. 320, 50 P.3d 530. Richard Lee Price (Price) was charged with
one felony and four misdemeanors. Price, ¶ 1. While awaiting trial, Price spent eighteen
days in jail. Price, ¶ 1. He was ultimately sentenced to twelve months with the
Department of Corrections for the felony and twelve days in jail for the misdemeanors,
with all sentences to run consecutively. Price, ¶ 22. To account for Price’s eighteen days
of service, the District Court credited twelve days against his misdemeanor sentences and
the remaining six days against the felony sentence. Price, ¶ 22. Price appealed, arguing
that he was entitled to eighteen days of credit toward each of the three charges against
him. Price, ¶ 23. We affirmed the District Court, holding that “§ 46-18-403(1), MCA,
entitles defendants to credit for presentence incarceration only once against the aggregate
of all terms imposed when multiple sentences are imposed consecutively.” Price, ¶ 28.
¶16 While Price remains instructive regarding credit to be granted when multiple
sentences to be served consecutively are imposed, the issue before us does not involve
the judicial imposition of such sentences. The District Court denied Hornstein credit for
his jail time in consideration of the Parole Board’s determination to not count Hornstein’s
time on parole as “dead time,” thus allowing that time to be credited to his first sentence.
However, the Parole Board is an administrative agency and its determination about “dead
time” on parole is an administrative matter within its broad discretion. Admin. R. M.
7
20.25.202(3). Its discretionary actions with regard to parole time do not preempt the
statutory requirement that credit be granted for time served which is “directly related” to
a newly imposed sentence—whether to be served consecutively or concurrently with the
previous sentence. Kime, ¶ 16.
¶17 Hornstein was arrested and jailed on the new charges on September 26, 2008. A
probation violation report was made, but Hornstein was left in the County Jail to await
resolution of his new charges. Bail was ordered, but because Hornstein was unable to
pay, he remained incarcerated on his new charges for 224 days. Hornstein would not
have been incarcerated in County Jail for this period but for the new charges, making that
time “directly related” to those charges. Thus, under Kime, Hornstein was entitled to a
224-day credit against his new sentence.
¶18 We are aware that Hornstein may, as a practical matter, receive a “double credit”
toward his sentences for the time at issue here. However, that is ultimately a
consequence of the Parole Board’s discretionary determination about Hornstein’s parole
time. Regarding his jail time, the law required credit to be given for the time he served.3
¶19 We reverse and remand for the entry of an amended judgment consistent with this
Opinion.
3
At the time of sentencing, the Parole Board had not yet determined how to treat Hornstein’s
parole time. The sentencing court’s denial of the statutory credit for time served thus allowed
the possibility, had the Parole Board discretionarily decided not to count the parole time, of the
denial of any credit for the time Hornstein served.
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/S/ JIM RICE
We concur:
/S/ MIKE McGRATH
/S/ PATRICIA O. COTTER
/S/ MICHAEL E WHEAT
/S/ W. WILLIAM LEAPHART
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