by David M. Reutter
The Supreme Court of Montana, in an opinion issued on October 18, 2022, held that the District Court for the state’s Seventh Judicial Circuit issued an illegal sentence when it failed to award credit for time served on two concurrent sentences. In its ruling, the Court agreed with defendant Russell Kortan that his deferred sentence merged with the sentences in two unrelated cases when the district court ordered all three to run concurrently.
In November 2007, Kortan was charged with one felony bad-check charge. He pleaded guilty, and on April 8, 2008, the district court imposed a five-year deferred sentence and ordered a payment of $6,760 in restitution, also granting credit for 39 days already served in jail.
In two other unrelated criminal cases, Kortan appeared before the district court on December 19, 2008. In each case he was sentenced to five years in prison, with two years suspended, to run concurrently with each other and with the deferred sentence in the prior case. Kortan was imprisoned on those sentences for a total of 565 days between December 19, 2008, and July 7, 2010.
After he was released on probation, the State filed petitions in late 2012 and early 2013 to revoke Kortan’s deferred sentence. Kortan admitted to the allegations in the petitions, and the district court revoked the deferred sentence. It imposed an eight-year prison sentence, with three years suspended, to run concurrently with the sentences in the two unrelated cases. Importantly, Kortan was not granted credit for any time served before his probation.
Kortan, acting pro se, filed a Motion for Credit for Time Served on February 10, 2017. The District Court denied the motion, determining Kortan “was not sentenced until February 28, 2013,” so “the approximately one year eight months” served before that on the two unrelated cases “cannot serve as good time and affect the … sentence in this matter.”
After release on probation, Kortan was again subjected to petitions to revoke his suspended sentence in 2019. He admitted to the allegations and was sentenced to three years in prison with credit for 105 days of elapsed time and 181 days of previously served jail time. Kortan appealed, this time represented by attorney Rachael G. Inabnit of Missoula
On appeal, Kortan sought a total of 565 days credit. The Supreme Court of Montana found “Kortan preserved the issue regarding proper credit for time served.” Turning then to the merits of the claim, the Court noted precedent holding that “unrelated sentences merge when a district court orders that one runs concurrently with the other,” citing State v. Youpee, 2018 MT 102. There was no dispute that all three of Kortan’s sentences were merged to run concurrently when his last two cases were decided in December 2008.
Additionally, Section 46-18-203(7)(b), Montana Code Annotated, provides that when “a suspended or deferred sentence is revoked, . . . Credit must be allowed for time served in a detention center or for home arrest already served.” Thus, the district court failed to award credit for the time Kortan served in prison for his merged sentences between December 19, 2008, and July 7, 2010. That, in turn, rendered his latest sentence illegal, the Court said.
Not only was Kortan owed credit for the 565 days spent in prison once his sentences were merged, the Court concluded, but he was also owed credit for the 39 days spent in jail after he was first charged. Thus the district court was ordered to award credit for a total of 604 days. See: State v. Kortan, Case 2022 MT 204.
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