Killam v. Salmonsen

• Decision Date: 03 August 2021
• Docket Number: OP 20-0583
• Citation: 492 P.3d 512,405 Mont. 143
• Court: Montana Supreme Court
• Parties: Brandon James KILLAM, Petitioner, v. Jim SALMONSEn, Acting Warden, Montana State Prison, Respondent.

405 Mont. 143

492 P.3d 512

Brandon James KILLAM, Petitioner,

v.Jim SALMONSEn, Acting Warden, Montana State Prison, Respondent.

OP 20-0583

Supreme Court of Montana.

Argued and Submitted: June 16, 2021

Decided: August 3, 2021

For Petitioner: Chad Wright, Appellate Defender, Deborah S. Smith (argued), Assistant Appellate Defender, Helena, Montana

For Respondent: Colleen Elizabeth Ambrose, Department of Corrections, Helena, Montana Austin Knudsen, Montana Attorney General, Bree Gee (argued), Assistant Attorney General, Helena, Montana

Justice Ingrid Gustafson delivered the Opinion and Order of the Court.

¶1 Representing himself, Brandon James Killam has filed Petition for Writ of Habeas Corpus, indicating he is entitled to more credit for time served. In compliance with a December 15, 2020 Order, the Attorney General for the State of Montana responds that Killam is not due any more credit and that his Petition should be denied. Killam has since moved this Court to grant him habeas corpus relief. We ordered counsel to be appointed for Killam, and this matter was consolidated with State v. Mendoza , No. DA 19-0587, for purposes of conducting oral argument. Oral argument was held before this Court on June 16, 2021.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Killam was convicted of felony aggravated assault and sentenced in November 2004. He was granted parole on June 17, 2013.

¶3 On May 22, 2019, while released on parole associated with the prior felony, Killam was arrested for felony criminal endangerment in Cascade County. Law enforcement searched Killam's apartment after his arrest and found a loaded firearm, a crossbow, and a compound bow; pursuant to his conditions of parole, Killam was prohibited from possessing these weapons. Following the search, also on May 22, 2019, Killam's Probation and Parole Officer provided the Cascade County Sheriff's Office with a warrant to arrest parolee Killam. This warrant authorized the Sheriff's Office to hold Killam at the Cascade County Detention Center (CCDC) on behalf of the Department of Corrections (DOC). The warrant stated: "OFFENDER IS NOT ENTITLED TO BOND ." (Emphasis in original.)

¶4 The DOC's Location Term Listing indicates Killam was placed on a Parole Hold on May 22, 2019, presumably based on the DOC warrant provided to CCDC indicating Killam was not entitled to bond. The Location Term Listing indicates the Parole Hold ended May 23, 2019.¹

¶5 On May 23, 2019, Killam made his initial appearance on the criminal endangerment charge before the District Court, at which time the court set bond at $25,000. Killam never posted bond, and he remained at CCDC through sentencing.

¶6 On June 30, 2020, Killam entered a plea of guilty to the felony criminal endangerment charge pursuant to a plea agreement. In August 2020, Adult Probation and Parole filed a pre-sentence investigative report in which the authoring officer indicated Killam was arrested on the criminal endangerment offense on May 22, 2019, and he had not been released. Although Killam remained at CCDC from his arrest through the time of this report, the authoring officer did not credit Killam with having served any jail time asserting, "The Defendant was on parole status during this time period and is not eligible for Jail Credit." On August 28, 2020, the Board of Pardons and Parole (Board) revoked Killam's parole.

¶7 On September 22, 2020, the District Court sentenced Killam on the criminal endangerment charge to the DOC for eight years with four years suspended to run concurrently with any prior sentence. The District Court orally advised Killam that, because of his parole status, he was not entitled to credit for the time he spent in jail and then stated in the written sentencing order that Killam "is not entitled to credit for time served because he was on parole at the time of this offense."

¶8 Killam challenges the legality of his sentence on the criminal endangerment charge, asserting § 46-18-403(1), MCA, required the District Court to credit him with the 489 days he spent incarcerated on the criminal endangerment offense prior to sentencing, and the resulting sentence is an illegal sentence because the District Court failed to do so. Killam contends the final sentencing judgment also is in error because it lists two prior violent felonies.

¶9 At oral argument, Killam asserted this Court's application of § 46-18-403(1), MCA, in State v. Kime , 2002 MT 38, 308 Mont. 341, 43 P.3d 290, and State v. Pavey , 2010 MT 104, 356 Mont. 248, 231 P.3d 1104, violated the plain language of the statute and should be overruled. Killam further points to the enactment of § 46-18-201(9), MCA, in 2017, which provides that a sentencing court must give credit for pre-trial or pre-sentencing incarceration regardless of whether the defendant was also held in relation to another criminal matter. Killam maintains that § 46-18-201(9), MCA (2017), either solidifies the existing law or, alternatively, newly mandates that sentencing courts must provide credit for time served before trial or sentencing.

¶10 Prior to oral argument, the State contended Killam knew he would not receive credit for time served prior to sentencing in the District Court, pointing to the September 22, 2020 sentencing hearing, where the District Court specifically stated: "Because you were on parole, you don't get credit for time served for this." The State asserted, based on Kime and Pavey , Killam is not entitled to credit for his incarceration prior to his sentencing on the criminal endangerment charge as we have held that § 46-18-403(1), MCA, does not apply in situations where a defendant would not have been released from custody had s/he been able to post bail as a result of being held on a sentence related to an earlier offense. The State argued Killam is not entitled to this credit because he was in DOC custody for a parole violation during his presentence incarceration for the criminal endangerment offense. At argument, the State continued to assert that Killam should not be given credit for pre-sentencing incarceration as his new criminal endangerment offense could not be considered a "bailable offense" because even if he had posted the bond set on the criminal endangerment matter, he would not have been released as he was in DOC custody related to his prior conviction.

¶11 The issue in this habeas corpus proceeding is restated as follows:

Whether Killam's sentence on his criminal endangerment charge is illegal due to the District Court's failure to credit him for each day of incarceration from the date of arrest through the date of the court's imposition of sentence .

STANDARD OF REVIEW

¶12 Section 46-22-101(1), MCA, allows a person imprisoned or otherwise restrained from liberty to apply for a "writ of habeas corpus to inquire into the cause of the imprisonment or restraint and, if illegal, to be delivered from the imprisonment or restraint." The very purpose of habeas corpus is to remedy illegal imprisonment, including remedying a sentence which exceeds statutory or constitutional limits. Lott v. State , 2006 MT 279, ¶ 20, 334 Mont. 270, 150 P.3d 337. Confinement beyond the expiration of a sentence is an unlawful imprisonment or restraint, and habeas corpus actions are a proper means of challenging the proper crediting for time served. Johnston v. Kirkegard , No. OP 12-0741, 310 P.3d 1098, 2013 Mont. LEXIS 74, *6-*7 (Feb. 5, 2013).

DISCUSSION

¶13 Section 46-18-403(1), MCA (2017), titled Credit for Incarceration Prior to Conviction, 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." By its plain language, § 46-18-403(1), MCA, leaves no discretion to the sentencing court to determine whether a defendant incarcerated on a bailable offense² receives credit for incarceration time prior to or after conviction.

¶14 Some version of this statute has existed since 1947. R.C.M. § 95-2215 (1947). However, as is apparent from this Court's case law regarding the statute's application, determining whether a defendant is "incarcerated on a bailable offense" has proven confusing and difficult for sentencing courts. Generally, courts do not have DOC or prior offense records available at the time of sentencing or are unsure as to how the Board or DOC may respond when a defendant is on probation or parole when arrested on new charges. Thus, courts have been inconsistent in how they determine a defendant is "incarcerated on a bailable offense"—some relying on their understanding of other proceedings³ and some relying only on the record of the case in which the defendant is being sentenced.⁴ Likewise, we have sometimes affirmed and sometimes reversed determinations sentencing courts made in reliance on other legal proceedings as well as those made in reliance only on the record in the cause for which the defendant was being sentenced. State v. Lodge , No. 97-171, 1998 MT 253, ¶¶ 33-34, 1998 WL 740254, 1998 Mont. LEXIS 237 (reversing trial court's denial of credit for time concurrently served on a felony offense to the misdemeanor offenses for which the court had given credit for time served as all the charges defendant faced were bailable offenses);⁵ State v. Price , 2002 MT 150, ¶¶ 25-30, 310 Mont. 320, 50 P.3d 530 (affirming the district court's denial of credit for time served to both the felony and misdemeanor offenses relying on Hawaii and other jurisdictions’ caselaw that credit for time served is properly granted only against the aggregate of the consecutive sentences); Kime , ¶ 16 (affirming trial court's determination that defendant was only entitled to credit for days from arrest to date of transfer to Montana State Prison to serve revoked sentence because Kime was no longer being held on a "bailable offense" even though bond was set and never posted on...