September 7 2011
DA 10-0623
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 221
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JOSHUA DEAN McCASLIN,
Defendant and Appellant.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and For the County of Ravalli, Cause No. DC 10-89
Honorable Jeffrey H. Langton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Joslyn Hunt, Chief Appellate Defender, Helena, Montana
For Appellee:
Steve Bullock, Montana Attorney General; Mardell Ployhar, Assistant
Attorney General, Helena, Montana
William Fulbright, Ravalli County Attorney; Geoff Mahar, Deputy County
Attorney, Hamilton, Montana
Submitted on Briefs: August 3, 2011
Decided: September 7, 2011
Filed:
__________________________________________
Clerk
Justice Michael E Wheat delivered the Opinion of the Court.
¶1 Joshua Dean McCaslin (McCaslin) appeals from judgment entered by the Twenty-
First Judicial District Court, Ravalli County, committing him to the Montana Department of
Corrections (DOC) for a period of five years, all suspended, and applying credit for pretrial
incarceration time served to any future revocation of his suspended sentence, rather than to
his current fully suspended sentence.
¶2 The sole issue on appeal is whether the District Court erred in crediting pretrial
incarceration time McCaslin served to any future revocation of his suspended sentence,
rather than to his current fully suspended sentence.
¶3 We reverse and remand with instructions that McCaslin receive credit for pretrial
incarceration time served against his current fully suspended sentence.
BACKGROUND
¶4 Pursuant to a plea agreement, McCaslin pled guilty to one count of failure to register
as a sexual or violent offender. At McCaslin’s sentencing hearing, the State and McCaslin
stipulated McCaslin should receive credit for 142 days of pretrial incarceration he served.
Both parties recommended the District Court follow the plea agreement, which provided for
a five-year suspended sentence.
¶5 The District Court committed McCaslin to the DOC for five years, all suspended.
Applicable to this appeal, the District Court ordered that “[McCaslin] will be credited for
142 days in detention against any future revocation commitment sentence.” Similarly, the
written judgment provides that “[McCaslin] shall receive credit for one hundred forty two
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(142) days for time served in detention prior to sentencing, which shall only be applied
toward any future time served in State custody due to a revocation of this sentence.”
STANDARD OF REVIEW
¶6 This Court reviews sentences that impose less than one year of actual incarceration
for legality and an abuse of discretion. State v. Herd, 2004 MT 85, ¶ 22, 320 Mont. 490, 87
P.3d 1017. In the present case, this Court will review McCaslin’s sentence for legality only
because he does not argue his sentence constitutes an abuse of discretion. The determination
of legality is a question of law that we review de novo. State v. Seals, 2007 MT 71, ¶ 7, 336
Mont. 416, 156 P.3d 15. A sentence is legal if it falls within statutory parameters. State v.
Hernandez, 2009 MT 341, ¶ 3, 353 Mont. 111, 220 P.3d 25.
DISCUSSION
¶7 Whether the District Court erred in crediting pretrial incarceration time McCaslin
served to any future revocation of his suspended sentence, rather than to his current fully
suspended sentence.
¶8 As an initial matter, we note McCaslin argues for the first time on appeal that he was
not properly awarded credit for pretrial incarceration time served. Generally, this Court will
not review an issue raised for the first time on appeal; however, we will review a plausible
allegation that a sentence is illegal, even if the defendant did not object below. State v.
Lenihan, 184 Mont. 338, 343, 602 P.2d 997, 1000 (1979). Both McCaslin and the State
agree giving McCaslin less credit than he is entitled to would violate statutory mandates.
Therefore, we consider this claim reviewable under Lenihan.
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¶9 Section 46-18-403(1), MCA, provides that “[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.” (Emphasis added.) The
legislature enacted this statute to eliminate disparate treatment between indigent and
nonindigent defendants. State v. Kime, 2002 MT 38, ¶ 15, 308 Mont. 341, 43 P.3d 290,
overruled on other grounds, State v. Herman, 2008 MT 187, ¶ 12 n. 1, 343 Mont. 494, 188
P.3d 978. “[C]redit 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.” Kime, ¶ 15.
¶10 McCaslin argues the plain language of § 46-18-403(1), MCA, requires the District
Court to credit McCaslin’s fully suspended sentence with the 142 days of pretrial
incarceration he served. The State responds that McCaslin is not presently entitled to any
credit because his fully suspended sentence does not constitute a “judgment of
imprisonment” within the meaning of § 46-18-403(1), MCA. Thus, the question this Court
must determine is whether McCaslin’s suspended sentence constitutes a “judgment of
imprisonment” for purposes of § 46-18-403(1), MCA.
¶11 This Court will read and construe a statute as a whole in order to avoid an absurd
result and give effect to the statute’s purpose. State v. Brendal, 2009 MT 236, ¶ 18, 351
Mont. 395, 213 P.3d 448. Statutory interpretation requires this Court “ ‘simply to ascertain
and declare what is in terms or in substance contained therein, not to insert what has been
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omitted or [to] omit what has been inserted.’ ” State v. Lacasella, 2002 MT 326, ¶ 14, 313
Mont. 185, 60 P.3d 975 (quoting § 1-2-101, MCA).
¶12 The State argues a “judgment of imprisonment” means an actual term of incarceration
or commitment. The State bases its interpretation upon this Court’s prior conclusion that a
deferred imposition of sentence does not constitute a “judgment of imprisonment,” In re
Gray, 163 Mont. 321, 323, 517 P.2d 351, 352 (1973), and our previous characterization of a
suspended sentence and deferred imposition of sentence as being very similar. See In re
LeDesma, 171 Mont. 54, 56, 554 P.2d 751, 753 (1976) (“[A] suspended sentence and a
deferred imposition of sentence are very similar.”). The State argues a suspended sentence
should not be treated differently from a deferred imposition of sentence and, therefore,
should not constitute a “judgment of imprisonment.”
¶13 The State asserts this Court’s interpretation of the statute governing sentencing
review, § 46-18-903, MCA, provides further support for its argument that a fully suspended
sentence is not a “judgment of imprisonment.” Under that statute, “[a] person sentenced to a
term of [one] year or more in the state prison or to the custody of the department of
corrections” may apply to have his or her sentence reviewed by the Sentence Review
Division. Section 46-18-903, MCA. The State argues because this Court held in State ex
rel. Holt v. District Court that a person with a ten-year suspended sentence is not eligible for
sentence review because it is not a sentence to a term in prison or commitment, State ex rel.
Holt v. District Court, 2000 MT 142, ¶¶ 4-10, 300 Mont. 35, 3 P.3d 608, a suspended
sentence cannot constitute a “judgment of imprisonment” here. The State also argues
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awarding McCaslin credit in the future if he is revoked is not unfair because incarceration
and probation serve different purposes. See U.S. v. Johnson, 529 U.S. 53, 58-59, 120 S. Ct.
1114, 1118-19 (2000) (holding the defendant was not entitled to have his supervised release
time reduced by time served in prison because incarceration and supervised release are two
different sentences and are not interchangeable).
¶14 The State’s reliance upon Gray and LeDesma is misplaced, as it neglects to recognize
the fundamental difference between a deferred imposition of sentence and suspended
execution of sentence. This Court has explained the difference between a suspended and
deferred imposition of sentence as follows:
Where the defendant is granted a suspended sentence, sentence is imposed and
execution of the sentence is suspended in whole or in part up to the maximum
time of sentence allowed by law and the defendant can be released on
probation during the time interval with the conditions of probation imposed by
the court. Where the defendant is granted deferred imposition of sentence . . .
the verdict or plea will be taken and the imposition of sentence deferred, or if
you prefer, stayed, for a period not to exceed three years. The court can
impose conditions of probation during this time of deferment which are not in
contradiction to a stay of sentence or deferred sentence. This then means
defendant will not be sentenced, which includes a sentence to a term in jail.
State v. Drew, 158 Mont. 214, 217, 490 P.2d 230, 232 (1971) (emphasis in original deleted).1
In sum, with a suspended sentence, the sentence is imposed, but then suspended in whole or
in part. With a deferred imposition of sentence, the sentence is not imposed. Although this
Court stated in LeDesma that a suspended sentence and deferred imposition of sentence are
very similar, we made this statement in the context of revocation proceedings, noting it was
1
Drew involved the interpretation of a substantially similar predecessor to § 46-18-201, MCA.
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“unlikely that the legislature intended that a person receiving a deferred imposition of
sentence be entitled to credit for the time spent in jail as a condition of the deferment if such
deferment is revoked, but the person receiving a suspended sentence is not so entitled.”
LeDesma, 171 Mont. at 56-57, 554 P.2d at 753. Therefore, had McCaslin’s sentence been
deferred, Gray would control, and he would not be entitled to credit for pretrial incarceration
time served against the length of deferment because a “judgment of imprisonment” was not
imposed. However, that is not the case here. The District Court imposed McCaslin’s
sentence, then suspended any actual incarceration term.
¶15 Similarly, we are not persuaded by the State’s argument that Holt requires us to
exclude a suspended sentence from § 46-18-403(1), MCA. In Holt, this Court interpreted the
phrase “sentenced to a term of [one] year or more in the state prison.” In concluding this
phrase restricted sentence review to defendants actually incarcerated, we read the statute as a
whole and interpreted the statute in order to avoid the absurd result that a defendant with a
suspended sentence would initially be eligible for review of his suspended sentence but then
if later revoked, would be time-barred from review of an un-suspended sentence. Holt, ¶¶ 6-
10. In the present case, including a suspended sentence as a “judgment of imprisonment”
and applying pretrial incarceration time served toward a suspended sentence does not create
the same absurdities that we sought to avoid in Holt. Likewise, the State’s reliance upon
Johnson is misplaced because Montana’s suspension of a sentence’s execution is a different
mechanism from federal supervised release, which is a separate transitional term between the
end of prison and the beginning of community life. See Johnson, 529 U.S. at 56-60, 120 S.
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Ct. at 1117-19. Finally, the interpretation the State urges us to adopt would, in the present
case, violate the general purpose behind § 46-18-403(1), MCA, of eliminating disparate
treatment between indigent and nonindigent defendants. See Kime, ¶ 15.
CONCLUSION
¶16 McCaslin’s suspended sentence constitutes a “judgment of imprisonment” within
§ 46-18-403(1), MCA. His suspended sentence must be credited with the 142 days of
pretrial incarceration he served. We reverse and remand this matter to the District Court
with instructions that the District Court apply McCaslin’s 142 days of pretrial incarceration
time served to his five-year fully suspended sentence.
/S/ MICHAEL E WHEAT
We Concur:
/S/ MIKE McGRATH
/S/ JIM RICE
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
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State v. McCaslin
Court: Montana Supreme Court
Date filed: 2011-09-07
Citations: 2011 MT 221, 260 P.3d 403, 362 Mont. 47
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