ROBBINS v MCCORMICK
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IN THE SUPREME COURT OF THE STATE OF MONTANA No. 93-221 KENNETH S. ROBBINS, Petitioner, -v- i j JACK MCCORMICK, Warden, Montana State Prison, OPINION AND f ._-. Respondent. Kenneth S. Robbins comes before this Court with a Petition for Writ of Habeas Corpus. Petitioner was released from Montana State Prison on April 29, 1993, and is presently serving probation on the suspended portion of his sentence handed down in March 1982 in Sheridan County for Criminal Sale of Dangerous Drugs and Criminal Possession with Intent to Sell. The issue raised by Petitioner is whether he has been properly ordered to serve probation or if, alternatively, he has completely discharged his sentence. The pertinent facts are as follows: Petitioner, On April 1, 1982, on his plea of guilty to Criminal Sale of Dangerous Drugs and Criminal Possession with Intent to Sell in Sheridan County, received a sentence of fifteen years with ten years suspended. On April 28, 1986, while on parole for the Sheridan County conviction, Petitioner pled guilty to two counts of Criminal Sale 1 of Dangerous Drugs received two District Court, Sheridan June Convictions discharge 26, was placed on sentence in Section (1) 1986, in run to On sentences specify consecutively Petitioner's and August was 1993, ten year failed to revoked date 29, were County. May on 16, his whether or 1986, plea. the concurrently The Gallatin with on years Sheridan discharged the the was on ordered the Sheridan incarcerated County until from probation as Montana County Gallatin the charges, result of a the State but ten he Prison then his on was year suspended pertinent part: County. judge (1985), otherwise provides, in orders: (b) whenever a person under suspended sentence or on probation for an offense committed in this state is sentenced for another offense, the period still to be served on suspended sentence or probation shall be merged in any new sentence of commitment or probation. . the 1986. 46-18-401, MCA Unless he parole (a) whenever a person serving a term of commitment imposed by a court in this state is committed for another offense, the shorter term or shorter remaining term shall be merged in the other term except as provided in subsection (5); and . he sentences. Petitioner April twelve however, County On Gallatin concurrent SentenCeS County in . (5) Except as provided in this subsection, whenever a prisoner is sentenced for an offense committed while he was imprisoned in the state prison or while he was released on parole or under the supervised release program, the new sentence runs consecutively with the remainder of the original sentence. The prisoner starts serving the new sentence when the original sentence has expired or when he is released on parole under chapter 23, part 2, of this title in regard to the original In the latter case, the sentence, whichever is sooner. 2 sentences run concurrently from the time of his release on parole. Petitioner 450, relies 756 P.2d 1169, on Petition Of Arledge wherein we held, (1988), 232 Mont. in the absence of a lower court order specifying whether sentences in the Fourth and Eleventh Judicial Districts were consecutive or concurrent, that ยง 46-18401(l)(a), MCA, required merger of sentences Eleventh Judicial District with those Judicial imposed by the imposed by the Fourth District. We did not discuss in our opinion, however, the application of subsection (5) where, as in the instant case, the defendant is convicted or pleads guilty to a subsequent offense while on parole, nor did we consider the application of subsection (l)(b), when the defendant is also under a suspended sentence at the time of his conviction of or plea to the second offense. Because we did not consider the application of subsections (l)(b) and (5) to the facts in Arledse, we limit our holding on Issue II in Arledoe to that case. In construing a statute where there are several provisions or particulars, the function of this Court is, if possible, to adopt a construction that will give effect to all. Section l-Z-101, MCA. In the absence of the sentencing court's order to the contrary, subsection (5) of the statute provides an exception to the general requirement of merger set forth in subsection (l)(a), if the prisoner is sentenced for an offense committed while he is imprisoned in the state prison or while he is released on parole or 3 under the supervised release program. In the instant case, Petitioner was on parole from the Sheridan County sentence when he was sentenced in Gallatin County. Since the District Court in Gallatin County failed to specify whether the sentences in that case were to be served consecutively or concurrently with the Sheridan County sentences, 5 46-18-401(5), MCA, required that the "new" consecutively (Gallatin with the remainder of the County) sentence "original" run (Sheridan County) sentence with the defendant to start serving the "new" (Gallatin County) sentence when the "original" (Sheridan County) sentence expired. Since Petitioner was also under suspended sentence from Sheridan County at the time he was sentenced on the Gallatin County offenses, subsection (l)(b) required the suspended Sheridan County sentence be merged in the Gallatin County sentences. The net result of the application of subsections 46-18401(l)(b) and (5), MCA, is that the Gallatin County sentences commenced to run when the Petitioner's Sheridan County sentence expired, taking into consideration that the suspended portion of the Sheridan County sentence was merged in the Gallatin County sentences. There is no authority under 5 46-18-401(5), MCA, for the State to require the Petitioner to serve the suspended portion of his "original" (Sheridan County) sentence consecutively with the end of his "new" (Gallatin County) sentence. The plain language of that subsection of the statute requires precisely the opposite, that is, 4 that the "original" sentence be served before the "new" sentence commences to run. The Petitioner having been discharged from the Gallatin County sentence and the suspended portion of the Sheridan County sentence having been merged in the Gallatin County sentence, IT IS HEREBY ORDERED that Petitioner be discharged from his probation on the Sheridan County sentence. DATED this & day of May, 1993.
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