State v. Mccarthy

• Decision Date: 28 February 2008
• Docket Number: No. 33201.,No. 33411.,33201.,33411.
• Citation: 179 P.3d 360,145 Idaho 397
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Barry I. McCARTHY, Defendant-Appellant.
• Court: Idaho Court of Appeals

179 P.3d 360

145 Idaho 397

STATE of Idaho, Plaintiff-Respondent, v. Barry I. McCARTHY, Defendant-Appellant.

No. 33201.

No. 33411.

Court of Appeals of Idaho.

February 28, 2008.

Molly J. Huskey, State Appellate Public Defender; Eric D. Fredericksen, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Ralph R. Blount, Deputy Attorney General, Boise, for respondent.

LANSING, Judge.

In this consolidated appeal, Barry I. McCarthy challenges the sentences imposed upon him for possession of methamphetamine and delivery of methamphetamine, and the district court's order denying his motion for credit on his possession sentence for a period of incarceration served as a consequence of a probation violation. We affirm in part, reverse in part and remand.

I. FACTS AND PROCEDURE

In 2004, McCarthy pleaded guilty to possession of methamphetamine, Idaho Code § 37-2732(c)(1). The district court imposed a unified term of imprisonment of seven years, with three years determinate, but retained jurisdiction for one hundred and eighty days. Following the period of retained jurisdiction, the district court suspended the sentence and placed McCarthy on probation. Thereafter, a report of probation violations was filed alleging that McCarthy had twice delivered methamphetamine to an undercover officer. Upon this report, the district court issued a bench warrant for McCarthy's arrest, which was served on November 9, 2005. In a separate case arising from the same transactions with the undercover officer, McCarthy was charged with two counts of delivery of methamphetamine, I.C. § 37-2732(a)(1)(A). An arrest warrant for these new charges was served on McCarthy on December 5, 2005, at the Bannock County jail, where he was already incarcerated while awaiting disposition of the charged probation violations. McCarthy ultimately pleaded guilty to one count of delivery of methamphetamine in the new case and admitted to this violation of his probation in the possession case. He remained in jail from his November 9, 2005 arrest on the bench warrant until the disposition of both cases in a consolidated proceeding on March 8, 2006, at which his probation was revoked in the possession case and he was sentenced in the delivery case. For the delivery charge, the district court imposed a unified prison term of seven years with three years determinate, to run concurrently with the sentence executed in the possession case.

Thereafter, McCarthy filed a motion under Idaho Criminal Rule 35 to correct illegal sentences, seeking additional credit for time served in both cases. With respect to the delivery conviction, the district court granted the motion, ordering that McCarthy be credited for time served on that sentence from service of the arrest warrant on December 5, 2005, until the entry of judgment on March 8, 2006. As to the possession conviction, however, the court denied relief for any of McCarthy's incarceration following his November 9, 2005 arrest, stating that an individual is not entitled to receive credit for time served on a probation violation.

McCarthy appeals, asserting that his sentences are excessive and that he is entitled to additional credit on the possession sentence.

II. ANALYSIS

A. Credit for Time Served

McCarthy correctly contends that the district court erred in holding that a defendant may not receive credit for time spent in custody awaiting disposition of a probation violation charge. Although the Idaho Supreme Court has held that a defendant whose probation has been revoked may not receive credit against a prison sentence for time served in jail as a condition of probation, State v. Dana, 137 Idaho 6, 43 P.3d 765 (2002); State v. Banks, 121 Idaho 608, 610, 826 P.2d 1320, 1322 (1992), credit must be given for jail incarceration after arrest for a probation violation. This is mandated by I.C. § 19-2603, which provides that when a defendant has been arrested on a bench warrant for a probation violation and the probation has consequently been revoked, "the time of the defendant's sentence shall count from the date of service of such bench warrant." See also State v. Covert, 143 Idaho 169, 170, 139 P.3d 771, 772 (Ct. App.2006); State v. Lively, 131 Idaho 279, 280, 954 P.2d 1075, 1076 (Ct.App.1998); State v. Buys, 129 Idaho 122, 127-28, 922 P.2d 419, 424-25 (Ct.App.1996). The district court therefore erred by concluding otherwise.

This determination is not the end of the inquiry, however, for the State argues that because McCarthy already received credit on his sentence in the delivery case for a portion of the incarceration that occurred after his arrest for probation violations, he cannot receive credit for the same period in his possession case. That is, the State asserts that McCarthy should be credited in the possession case only for the period from November 9, when he was arrested for the probation violation, to December 5, 2005, when the arrest warrant for the new delivery charge was served. We find no merit in this argument.

When credit is sought for prejudgment incarceration, the applicable inquiry is whether the incarceration was for the same offense or an included offense for which the judgment was entered. See I.C. § 18-309; State v. Vasquez, 142 Idaho 67, 68, 122 P.3d 1167, 1168 (Ct.App.2005). In State v. Hernandez, 120 Idaho 785, 791-92, 820 P.2d 380, 386-87 (Ct.App.1991), where a defendant was jailed simultaneously for three counts of delivery of drugs in a single county and was given concurrent sentences for these offenses, we held that he was entitled to credit against each sentence for his period of prejudgment incarceration. Id. at 792, 820 P.2d at 387. We reasoned that when concurrent sentences are imposed, duplicative credit will not occur because a shorter sentence is necessarily subsumed in the longest of the concurrent sentences. Id. We recognized that credit on all such concurrent sentences is necessary to ensure that, if for some reason one of the charges becomes nullified, the defendant will receive proper credit on the other charge or charges. Id. We contrasted this situation with that of consecutive sentences, the Idaho Supreme Court having held that credit must be allowed on only one of multiple consecutive sentences because conferring credit on each of the consecutive sentences would give the defendant credit for more time than he actually spent in confinement. Id. at 791, 820 P.2d at 386 (citing State v. Hoch, 102 Idaho 351, 630 P.2d 143 (1981)). See also Mickelsen v. Idaho State Corr. Inst., 131 Idaho 352, 355, 955 P.2d 1131, 1134 (Ct.App.1998).

If a defendant is entitled to credit on all concurrent sentences for prejudgment incarceration simultaneously served in a single county on separate crimes, the same logic requires credit on both of McCarthy's sentences where his incarceration on a probation violation in the possession case and on a new criminal charge in the delivery case were based upon precisely the same conduct and concurrent sentences are imposed. When it is...