State v. Pendergrass, 96-419
| Decision Date | 04 February 1997 |
| Docket Number | No. 96-419,96-419 |
| Citation | 281 Mont. 129,932 P.2d 1056 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Billie L. PENDERGRASS, Defendant and Appellant. |
| Court | Montana Supreme Court |
Billie Leon Pendergrass, Pro Se, Prineville, OR.
Joseph P. Mazurek, Attorney General, Jennifer Anders, Ass't Attorney General, Helena, for Respondent.
Billie Leon Pendergrass (Pendergrass) appeals from the judgment and sentence entered by the Third Judicial District Court, Powell County, on his conviction of the offense of misdemeanor escape. We affirm.
The dispositive issue on appeal is whether the District Court erred in concluding that Pendergrass' escape sentence did not merge with the other sentences he was serving.
The following facts are undisputed. Pendergrass was an inmate at the Montana State Prison (MSP) serving terms of imprisonment exceeding thirty years on sentences imposed by district courts in Flathead and Lewis and Clark Counties between 1975 and 1979. On or about August 20, 1990, Pendergrass walked away from his prison job at the Territorial Prison Museum. He subsequently turned himself in and was charged with the offense of felony escape under § 45-7-306, MCA. Pendergrass pled guilty to the charge and, in March of 1991, the District Court sentenced him to a three-year term of imprisonment at the MSP. The court specified that the sentence was to run consecutively to the sentences Pendergrass was serving.
Pendergrass was paroled on or about April 20, 1992. In the spring of 1994, his parole was revoked and he was returned to the MSP. Thereafter, he filed a habeas corpus petition with the District Court, claiming that he had served all of his sentences, including the escape sentence, because his sentences merged and began to run concurrently when he was paroled. The District Court denied his petition on the grounds that the consecutive sentences ran concurrently only while Pendergrass remained on parole.
In December of 1994, Pendergrass filed a habeas corpus petition with this Court. He claimed that, pursuant to § 46-18-401(5), MCA, he had served all of his sentences--including the felony escape sentence--because the consecutive sentences merged and began to run concurrently when he was paroled. We denied his petition in August of 1995, on the grounds that the merger provision contained in § 46-18-401(5), MCA, applies only if the sentencing court does not specify whether the sentences are to run concurrently or consecutively. In Pendergrass' case, the sentencing courts specified whether the sentences imposed were concurrent or consecutive and, therefore, the § 46-18-401(5), MCA, merger provision did not apply.
In 1996, Pendergrass moved the District Court for correction of his felony escape sentence pursuant to our decision in State v. Nelson (1996), 275 Mont. 86, 910 P.2d 247. He also petitioned this Court for postconviction relief claiming that, under Nelson, he had been erroneously sentenced in 1991 for felony escape. We granted his petition and remanded to the District Court for resentencing under the misdemeanor escape provisions of § 45-7-306, MCA. At the resentencing hearing, Pendergrass again argued that his escape sentence and the other sentences he was serving merged and began running concurrently when he was paroled. The District Court again rejected this argument and sentenced Pendergrass to six months in the Powell County Jail for misdemeanor escape, suspended on the condition that he pay a $500 fine to the Powell County Clerk of Court within four months of his release from prison. Pendergrass appeals.
Did the District Court err in concluding that Pendergrass' escape sentence did not merge with the other sentences he was serving?
The District Court's resentencing order states that "the sentence imposed hereby does not merge with the sentences presently being served by [Pendergrass] as argued by [him]." District courts have broad discretion in sentencing criminal defendants and we ordinarily review sentences only to determine whether the court abused its discretion. State v. Zabawa (1996), 279 Mont. 307, ----, 928 P.2d 151, 157, 53 St.Rep. 1162, 1166 (citation omitted). Here, however, the District Court made a legal...
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...1070; State v. Richards, 285 Mont. 322, 948 P.2d 240 (1997); State v. Weigle, 285 Mont. 341, 947 P.2d 1053 (1997); State v. Pendergrass, 281 Mont. 129, 932 P.2d 1056 (1997); State v. Zabawa, 279 Mont. 307, 928 P.2d 151 (1996); State v. McQuiston, 277 Mont. 397, 922 P.2d 519 (1996); State v.......
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State v. Incashola, 98-114
...conclusion of law, we review that conclusion to determine whether the court correctly interpreted the law. See State v. Pendergrass (1997), 281 Mont. 129, 131, 932 P.2d 1056, 1057 (citation ¶10 Section 23.4.213, ARM, provides in pertinent part: Field Certification (1) Breath analysis instru......
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Chandler v. Mahoney, 00-474.
...of his release on parole. § 46-18-401(5), MCA (1993). ¶ 4 In response to Chandler's petition, the State relied on State v. Pendergrass (1997), 281 Mont. 129, 932 P.2d 1056. The State further argued that even if Chandler's sentences merged when he was paroled, those sentences reverted to con......