McDermott v. MONTANA DEPARTMENT OF CORRECTIONS

• Decision Date: 31 July 2001
• Docket Number: No. 01-074.,01-074.
• Citation: 305 Mont. 462,2001 MT 134,29 P.3d 992
• Parties: Anthony J. McDERMOTT, Petitioner, v. MONTANA DEPARTMENT OF CORRECTIONS; Janet Cox, Supervisor, Montana State Prison Records Department; Montana State Prison; Mike Mahoney, Warden, Respondents.
• Court: Montana Supreme Court

29 P.3d 992

2001 MT 134

305 Mont. 462

Anthony J. McDERMOTT, Petitioner, v. MONTANA DEPARTMENT OF CORRECTIONS; Janet Cox, Supervisor, Montana State Prison Records Department; Montana State Prison; Mike Mahoney, Warden, Respondents.

No. 01-074.

Supreme Court of Montana.

July 31, 2001.

OPINION AND ORDER

¶ 1 This is an original proceeding on a petition for a writ of habeas corpus and writ of mandate. Petitioner Anthony McDermott (McDermott), an inmate in the Montana State Prison, is serving a five-year sentence for issuing a bad check, felony common scheme. He argues that he has been improperly denied good time credits for time he spent on probation and that § 53-30-105, MCA (1993), which grants good time credits to parolees but not probationers, violates equal protection. We deny his petition.

FACTUAL BACKGROUND

¶ 2 McDermott pled guilty to issuing a bad check, felony common scheme in the Fourth Judicial District Court on January 9, 1995. Although the District Court could have sentenced him to a term of up to ten years in the Montana State Prison, it deferred imposition of sentence for six years and placed McDermott on probation. McDermott was free to live and work in the community subject only to certain conditions of probation: that he report regularly to his assigned probation officer, that he make restitution to his victims and that he perform 100 hours of community service, etc. McDermott failed to comply with these conditions. As a consequence, the District Court revoked its order deferring imposition of sentence and sentenced McDermott to serve a term of five years in the Montana State Prison.

¶ 3 McDermott spent one day in county jail prior to imposition of his deferred sentence. He was on probation for a little less than four years. Following revocation of his deferred sentence, he spent 84 days in county jail awaiting sentencing. Since that time McDermott has been incarcerated either in the county jail awaiting transfer or in the Montana State Prison.

¶ 4 When it imposed the five-year sentence, the District Court ordered that McDermott was not entitled to receive credit-as time served-for any time spent on probation. The District Court's order stated:

Due to the Defendant's failure to comply with the terms and conditions of his deferred sentence while under the supervision of the Department of Probation and Parole, the Court finds that he is not entitled to receive, and shall not receive, credit for any elapsed time between the date of his conviction and the date of this Order, except that he shall receive credit for September 14, 1993 [in and out same day] and from November 17, 1998, through date of sentencing, February 8, 1999, in the amount of eighty-five (85) days jail time which he has previously served.

Pursuant to this order and Montana's good time allowance statute, the State credited McDermott with eighty-five days toward his five-year sentence and eighty-five days of good time. McDermott received good time credits for the time in the Montana State Prison but the State denied McDermott time served and good time credit for the time he was on probation.

DISCUSSION

¶ 5 McDermott now claims that he is entitled to both credit for time served and good time credits for the time he was on probation. His petition also claims that the State has failed to award him good time credits for his eighty-five days of presentence incarceration. The State agrees that McDermott is entitled to good time credits for that time and, as noted above, has awarded him those credits. We go on to address the remaining good time and time served credit issues.

I. Good Time Credits

¶ 6 McDermott contends that § 53-30-105, MCA, Montana's good time allowance statute, creates a liberty interest in good time credits for probationers and the State's denial of those credits violates the Due Process Clause of the Fourteenth Amendment. He also contends, somewhat incongruously, that § 53-30-105, MCA, violates equal protection because it denies good time credits to probationers while allowing them for parolees and presentence detainees.

A. McDermott's Due Process Claim

¶ 7 The Due Process Clause of the Fourteenth Amendment to the United States Constitution prohibits states from depriving any person of life, liberty or property without due process of law. Application of this constitutional guarantee requires us first to determine whether the interest at stake is within the scope of its protections. If so, we must determine what process is due and whether the petitioner was accorded the required process. McDermott v. McDonald, 2001 MT 89, ¶ 7, 305 Mont. 166, ¶ 7, 24 P.3d 200, ¶ 7.

1. Liberty Interests in Good Time Credits

¶ 8 The Constitution does not, itself, create a protected liberty interest in good time credits. Wolff v. McDonnell (1974), 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935, 951. However, under certain circumstances, states may, by statute or regulation, create liberty interests that are protected by the Due Process Clause. Sandin v. Conner (1995), 515 U.S. 472, 483-84, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418, 429. McDermott claims that Montana's good time allowance statute creates such a liberty interest in the opportunity to earn good time credits while on probation.

¶ 9 McDermott committed his offenses in the summer and fall of 1993. The good time statute in effect at that time was § 53-30-105, MCA (1993). It provides that:

(1) The department of corrections and human services shall adopt rules providing for the granting of good time allowance for inmates employed in any prison work or activity. . . . The good time allowance shall operate as a credit on the inmate's sentence as imposed by the court, conditioned upon the inmate's good behavior and compliance with the rules made by the department or the warden . . .

(3) A person may not earn good time credits under this section while the person is on probation.

Section 53-30-105, MCA (1993). We have previously held that this statute creates a liberty interest in good time credits for inmates. Orozco v. Day (1997), 281 Mont. 341, 354, 934 P.2d 1009, 1016, and indigent presentence detainees. MacPheat v. Mahoney, 2000 MT 62, 299 Mont. 46, 997 P.2d 753. However, this Court has not addressed the question of whether, or under what circumstances, § 53-30-105, MCA (1993), creates a liberty interest in good time credits for probationers.

2. State-Created Liberty Interests

¶ 10 Given the clear statement in § 53-30-105(3), MCA (1993), excluding probationers from eligibility for good time credits, it should be easy to conclude that the statute creates no liberty interest in good time credits for probationers. However, case law on state-created liberty interests has followed a somewhat tortured path. Because of the high level of prisoner interest in this question, we recount some of this history and attempt to lay out a clear rule.

¶ 11 In the 1970s, the United States Supreme Court identified a state-created liberty interest by looking to see whether a regulation or statute created a "right of real substance." Later, this test gave way to a more formulistic one, based on whether certain statutorily defined findings compelled the state to award some benefit. It was under this "mandatory language/substantive predicate" test that many state statutes, including Montana's parole eligibility statute, were found to create constitutionally-protected liberty interests. The line of cases that developed out of the mandatory language/substantive predicate test created significant problems with prison administration, however, and, in 1995, the Supreme Court repudiated that test. In doing so, it harkened back to the prior "right of real substance" standard but added the limitation that statutorily-defined liberty interests would be restricted to freedom from "atypical and significant hardships in relation to the ordinary incidents of prison life" or restraints which "inevitably affected the duration of the prisoner's confinement."

a. The "Right of Real Substance" Test

¶ 12 In Wolff, Nebraska inmates challenged the validity of disciplinary procedures used to revoke good time credits under a state statute that bestowed sentence reductions for good behavior. Wolff, 418 U.S. at 545-47, 94 S.Ct. at 2969-70, 41 L.Ed.2d at 944-46. The case dealt with two statutes: one that provided for the allowance of good time credits and another, which defined the scope of prison administrators' authority to discipline inmates. The Nebraska good time allowance statute was similar to Montana's in many respects. It provided that the chief executive officer of a facility shall deduct the good time allowance from the offenders term of sentence for good behavior and that the allowance shall act as a credit against the prisoner's parole eligibility and release date. Wolff, 418 U.S. at 548, 94 S.Ct. at 2970-71, 41 L.Ed.2d at 946. The other statute allowed prison officials to forfeit or withhold good time allowances for flagrant or serious misconduct. In general, then, the Nebraska scheme required good time credits to be awarded upon a finding of good behavior and limited officials' authority to revoke them.

¶ 13 The Wolff Court's "liberty interest" analysis consisted solely of its statement that "the State having created the right to good time and itself recognizing that its deprivation is a sanction authorized for major misconduct, the prisoner's interest has real substance and is sufficiently embraced within Fourteenth Amendment `liberty' to entitle him to those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated." Wolff, 418 U.S. at 557,94 S.Ct. at 2975,41 L.Ed.2d at 951. Consequently, it was the statutory grant of good time credits coupled with the restriction that, once granted, credits could only be revoked in limited circumstances, that was the foundation for Supreme Court's...