State v. Kortan

• Docket Number: DA 20-0577
• Decision Date: 18 October 2022
• Citation: 518 P.3d 1283
• Parties: STATE of Montana, Plaintiff and Appellee, v. Russell KORTAN, Defendant and Appellant.
• Court: Montana Supreme Court

518 P.3d 1283

STATE of Montana, Plaintiff and Appellee,

v.Russell KORTAN, Defendant and Appellant.

DA 20-0577

Supreme Court of Montana.

Submitted on Briefs: August 17, 2022

Decided: October 18, 2022

For Appellant: Rachel G. Inabnit, Law Office of Rachel Inabnit, PLLC, Missoula, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana, Brett Irigoin, Dawson County Attorney, Glendive, Montana

Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 Defendant and Appellant Russell Kortan (Kortan) appeals from the October 6, 2020 Order Revoking Suspended Sentence and Imposing Sentence issued by the Seventh Judicial District Court, Dawson County. The District Court's Order revoked Kortan's suspended sentence, committed him to the custody of the Montana Department of Corrections (DOC) for three years, and gave him credit for 105 days of elapsed time and 181 days of previously-served jail time.

¶2 We address the following restated issue on appeal:

Whether the District Court issued an illegal sentence by failing to give credit for time served on sentences that were ordered to run concurrent to Kortan's revocation sentence.

¶3 We reverse and remand with instructions to credit Kortan with an additional 604 days of time served.

FACTUAL AND PROCEDURAL BACKGROUND

¶4 In November 2007, Kortan was charged with one felony count of issuing bad checks, common scheme, in Dawson County Cause No. DC-07-047. Kortan pled guilty to this charge via a nonbinding plea agreement in December 2007. On April 8, 2008, the District Court held a sentencing hearing. At that hearing, the court orally imposed a five-year deferred sentence with conditions including the payment of $6,760 in restitution, and granted Kortan credit for 39 days served in jail prior to sentencing. A written order reflecting the court's judgment and deferred imposition of sentence followed on April 10, 2008.

¶5 On December 19, 2008, Kortan was sentenced by the District Court on two other criminal matters: Dawson County Cause No. DC-08-027 and Prairie County Cause No. DC-08-04. In each of those cases, Kortan was sentenced to DOC custody for a period of five years, with two years suspended. The District Court ordered the sentence in both cases to run concurrently with each other, and concurrently with Dawson County Cause No. DC-07-047. Relevant to this proceeding, Kortan was incarcerated in various facilities around the state between December 19, 2008, and July 7, 2010.

¶6 In late 2012 and early 2013, the State filed a petition and an amended petition to revoke Kortan's deferred sentence in Dawson County Cause No. DC-07-047. Kortan ultimately admitted to the allegations of the State's amended petition and the District Court held a dispositional hearing on February 28, 2013. At that hearing, the court revoked Kortan's deferred imposition of sentence and sentenced him to an eight-year DOC commitment, with three years suspended. The District Court ordered this sentence to run concurrently with the sentences in Dawson County Cause No. DC-08-027 and Prairie County Cause No. DC-08-04. The court did not grant Kortan credit for any elapsed time served while on probation. A written order reflecting the court's sentence was issued on March 4, 2013.

¶7 On February 10, 2017, Kortan filed, pro se, a Motion for Credit for Time Served, seeking credit for two years of time served "towards District Court No. DC 07-047[.]" On March 3, 2017, the State filed its Response to Defendant's Motion for Credit for Time Served. In its response, the State, relying on State v. McCaslin , 2011 MT 221, 362 Mont. 47, 260 P.3d 403, argued no sentence was imposed in this case until February 28, 2013, and therefore Kortan was not entitled to credit for the time he spent incarcerated due to the sentences in Dawson County Cause No. DC-08-027 and Prairie County Cause No. DC-08-04. On March 21, 2017, the District Court issued its Order Denying Motion for Credit for Time Served. The court denied Kortan's motion, determining Kortan "was not sentenced until February 28, 2013," and, "[s]ince he had not been sentenced in this matter, the approximately one year eight months referred to by the defendant in DC 08-027 and DC 08-04 cannot serve as good time and affect the February 28, 2013[ ] sentence in this matter."¹

¶8 In 2019, DOC Probation and Parole Officer Melanie Etchemendy (PO Etchemendy) filed an Affidavit in Support of Petition for Revocation of Order of Suspended Sentence, along with a Report of Violation. The State thereafter filed a Petition for Revocation of Suspended Sentence. Throughout late 2019 and early 2020, PO Etchemendy filed several addendums to her report of violation, and the State filed both an amended and second amended petition to revoke Kortan's suspended sentence. Kortan admitted to the allegations of the State's second amended petition to revoke at an adjudicatory hearing on May 19, 2020. The District Court ultimately held a dispositional hearing on September 28, 2020. At that hearing, counsel for Kortan requested the court "simply give [Kortan] credit for time served and close this docket so he can start anew on his new cases." The State noted Kortan had already filed a motion for time served, which was denied by the court because Kortan had not been sentenced and "the jail days, or the incarceration days from that previous time has already been addressed by Judge Simonton, and the Defendant was not given credit for that." The District Court then orally sentenced Kortan to a three-year DOC commitment and gave him credit for 105 days of elapsed time and 181 days of previously-served jail time. The court's written Order Revoking Suspended Sentence and Imposing Sentence followed on October 6, 2020.

¶9 Kortan appeals. Additional facts will be discussed as necessary below.

STANDARD OF REVIEW

¶10 "While we review a district court's revocation of a suspended sentence for abuse of discretion, when the district court's authority to take a specific action is at issue, the question is one of law and our review is de novo." State v. Gudmundsen , 2022 MT 178, ¶ 8, 410 Mont. 67, 517 P.3d 146 (internal citation omitted). "Calculating credit for time served is not a discretionary act, but a legal mandate." State v. Tippets , 2022 MT 81, ¶ 10, 408 Mont. 249, 509 P.3d 1 (quoting State v. Parks , 2019 MT 252, ¶ 9, 397 Mont. 408, 450 P.3d 889 ). A district court's determination of credit for time served is therefore reviewed for legality. Tippets , ¶ 10 (citing Parks , ¶ 7 ). A determination of legality is a question of law that we review de novo. Parks , ¶ 7 (citing State v. Seals , 2007 MT 71, ¶ 7, 336 Mont. 416, 156 P.3d 15 ).

DISCUSSION

¶11 Whether the District Court issued an illegal sentence by failing to give credit for time served on sentences that were ordered to run concurrent to Kortan's revocation sentence.

¶12 As a preliminary matter, the State points out that the District Court's October 6, 2020 revocation sentence (as well as the February 28, 2013 revocation sentence) failed to give Kortan credit for 39 days served in jail prior to the court's April 8, 2008 deferred imposition of sentence, credit for which the court granted at that time, and concedes the matter should be remanded to grant Kortan credit for an additional 39 days of time served.

¶13 The remainder of this matter concerns whether Kortan should have been granted credit for time spent incarcerated between December 19, 2008, and July 7, 2010—a total of 565 days. Kortan argues he is entitled to credit for this time because, when he was sentenced in Dawson County Cause No. DC-08-027 and Prairie County Cause No. DC-08-04, those sentences merged with the underlying deferred sentence in Dawson County Cause No. DC-07-047 and credit for time spent incarcerated is mandatory under § 46-18-203(7)(b), MCA. The State asserts Kortan's argument is both "meritless and unpreserved," because, when Kortan was sentenced in Dawson County Cause No. DC-08-027 and Prairie County Cause No. DC-08-04, "he was not serving any sentence at all in this case." We agree with Kortan.

¶14 We must first determine whether Kortan's claim is preserved for appellate review. Based upon the unique nature of sentencing upon revocation, we conclude the claim is preserved. The general sentencing statutes are not applicable in this revocation matter because "sentencing upon the revocation of a suspended or deferred sentence is particularly and expressly governed by § 46-18-203, MCA[.]" Seals , ¶ 15. Here, while Kortan does allege he should have originally been given credit for the additional 565 days when the District Court conducted its first sentencing upon revocation in 2013, he is specifically challenging the sentence upon revocation imposed by the District Court in 2020. As Kortan notes, he is not challenging his underlying conviction from 2008, the first revocation sentence from 2013, or the fact his sentence was revoked on either occasion here, but instead is arguing the 2020 revocation sentence itself is illegal. When an "illegal sentence is challenged during a revocation proceeding held while the defendant is serving the suspended portion of the illegal sentence, the court, upon sentencing in the revocation proceeding, is constrained by the particulars of § 46-18-203(7), MCA." Seals , ¶ 15.

¶15 The State correctly notes counsel for Kortan conceded that "the [c]ourt was not required to give him credit" for the challenged 565 days of time served during the September 28, 2020 dispositional hearing. We disagree with the State, however, that this concession operates to preclude appellate review in this case. Kortan's counsel stated, "I think Judge Simonton is technically correct in that, because it was on a deferred, he wasn't technically sentenced. Um, but it still happened." Kortan's counsel then continued to request credit for the time Kortan served in jail. While asserting Kortan has not preserved his...