No. 04-858

IN THE SUPREME COURT OF THE STATE OF MONTANA

2006 MT 84

_______________________________________ STATE OF MONTANA, Plaintiff and Respondent,

v. KELLY DEE MEGARD, Defendant and Appellant.

______________________________________ APPEAL FROM: District Court of th e Nineteenth Judicial District, In and for the County of Lincoln, Cause Nos. DC 99-6; DC 99-28; DC 01-29 The Honorable Michael C. Prezeau, Judge presiding.

COUNSEL OF RECORD: For Appellant: Amy N. Guth, Attorney at Law, Libby, Montana For Respondent: Hon. Mike McGrath, Attorney General; Tammy Plubell, Assistant Attorney General, Helena, Montana Bernard G. Cassidy, County Attorney; Robert Slomski, Deputy County Attorney, Libby, Montana

____________________________________ Submitted on Briefs: August 10, 2005 Decided: April 25, 2006 Filed:

______________________________________ ClerkJustice John Warner delivered the Opinion of the Court. ¶1 Kelly Dee Megard (Megard) appeals from two nunc pro tunc judgments entered against him in the Nineteenth Judicial Distri ct Court, Lincoln County. These judgments reduced the number of days credit he receiv ed for prior incarceration after two of his suspended commitments to the Department of Corrections (DOC) were revoked. We

vacate and remand with instructio ns to credit Megard for the number of days contained in the original judgments. ¶2 Megard has three different cr iminal convictions in Lincol n County. The first, Cause No. DC-99-6, arose on February 5, 1999, wh en the State filed an information charging Megard with four offenses, including felony Driving Under the Influence of Alcohol or Drugs (DUI). The second, Caus e No. DC-99-28, which this a ppeal does not address, arose on May 10, 1999, when the State filed an info rmation charging Megard with four offenses, including Carrying a Conceale d Weapon, a felony. Megard entered a plea agreement concerning both DC- 99-6 and DC-99- 28. He agreed to plead guilty to felo ny DUI and felony Carrying a Concealed We apon, and the State agreed to move to dismiss the other charges. Accepting the plea ag reement, the District Court se ntenced Megard on July 7, 1999. In DC-99-6, Megard was committed to the DOC for six months without parole followed by a four-year suspended commitmen t to DOC. In DC-99-28, Megard was

committed to the DOC for five years, with three years susp ended. These commitments were ordered to run concurrently. ¶3 Megard was released from prison on April 27, 2001, to serve the suspended portions

of his commitments in DC-99-6 and DC-99-28 . On July 23, 2001 , the State filed an

2information charging Megard wi th three offenses, including felony DUI, in Cause No. DC01-29. On December 5, 2001, th e State also filed a petition to revoke the suspended portion of Megard’s commitments in both DC-99-6 and DC-99-28. ¶4 Megard entered a plea agreement on December 10, 2001. He agre ed to plead guilty to the felony DUI charge and have his su spended commitments revoked in DC-99-6 and

DC-99-28. The State agreed to dismiss the two othe r charges in DC-01-29. Again accepting the plea agreement, the District Court committed Megard to the DOC for 13 months, followed by a four-year suspended commitment to the DOC in DC-01-29. The District Court also re-imposed and suspende d the balance of the commitments in DC-99-6

and DC-99-28. The balance of these su spended commitments was ordered to run

consecutive to the comm itment and suspended sentence in DC-01-29. Also in accord with the plea agreement, the District Court ordere d that if Megard co mpleted a residential treatment program during his commitment to th e DOC in DC-01-29, the remainder of that commitment would be suspended. ¶5 Megard was again released on January 21, 2003, to serve the suspended portion of his commitments. The State petitioned to rev oke Megard’s suspende d commitments in DC01-29 on March 20, 2003, and in DC-99-6 an d DC-99-28 on March 21, 2003. Megard denied some of the allegations of violation, and on April 24, 2003, the District Court held an evidentiary hear ing on the petition. ¶6 At the beginning of the evidentiary hearing, Mega rd admitted violating two conditions of his suspended comm itments. At the end of the hearing, the District Court found that Megard had also vi olated various other conditions . The District Court then

3continued on to a dispositional hearing, and from the bench imposed commitments to the

DOC as follows: In any event, I’m going to give you some breaks here . First of all, your sentences are going to be to the Department of Corrections and not to the Montana State Prison. I think I’m required to do that since that = s what the original sentences were. And two of th e original sentences ran concurrent to one another and I’m not sure if I can cha nge that status. I’m not going to do it, in any event. I’m going on DC-99-6, I’m going to sentence you to four years to the Montana Department of Corrections. On DC-99-28, I’m going to sentence you to five years to the Montana Department of Corrections, and those two sentences will run concurrent to one another. On DC-01-29, I’m going to sentence you to four years to the Montana Department of Corrections. That sent ence will run consecu tive to the other two sentences. Against all of those senten ces, or each of those sentences, you will receive time B or credit for time actually served in the county jail, or at the WATCH program, or at pre-releas e, or any state institution. In the event that you should be released on parole, I’m going to reimpose those same conditions, numbered 1 through 21, that were made a part of your previous judgments. That = s 1 through 21 as B . Let’s make that the conditions that were part of th e judgment and sentence in DC-01-29, which are slightly different. Conditions 1 through 22 will be reimposed. The Defendant is entitled to receive credit also against the fines that were previously imposed. Credit in the am ount of $63.76 a day, I think it is. The reasons for the se ntence are that it ta kes into account the Defendant’s criminal record. It takes in to account his failure to live up to the rules of probation including the violation that resulte d in physical violence directed toward another individual. It takes into account the nature of the offense B offenses. And I will ask the State to prepare sentencing orders for my consideration and signature. ¶7 Thus, from the bench, the District Court ga ve Megard credit for all time that he had served on any of the commitments to apply to each of the commitments . This means, that

for the concurrent commitments in DC-99-6 and DC-99-28, he was to receive credit for all

time served from his arrest to hi s release on these charges, and in addition for all time that he had served on DC-01-29 up to and including April 24, 2003. On DC-01-29, the District

4Court gave Megard credit against time served on the commitments since the date he was first arrested on that charge up to and including April 24, 2003. What the District Court did not do was specify what portio n of the time that Megard sp ent in jail on any particular commitment was time served not on a suspended commitment, but served on inmate status. ¶8 The District Court signed and filed its written judgment and sentence in DC-99-28 on April 28, 2003, crediting Me gard with 823 days. The Di strict Court filed its written judgment and sentence for DC-9 9-6 on April 29, 2003 , crediting him with 763 days. The District Court filed its written judgment and sentence for DC-01-29 on April 29, 2003, crediting Megard with 398 days for time served. This Court affirmed these judgments in State v. Megard , 2004 MT 67, 320 Mont. 323, 87 P.3d 44 8, and remittitur issued on April 12, 2004. ¶9 All three judgments included the following language: Having considered ' 46-18-203(7)(b), M.C.A., the Court expressly denies Defendant credit toward his senten ce for any elapsed time while the Defendant was under his in itial probationary sentence, except for the time that Defendant was actually incarcerated. The Court’s reasons for denying credit are Defendant’s violations of the te rms and conditions of his probation. ¶10 Thus, in both the oral sentence and the written judgments Megard was given credit

for the time he was incarcerated on all three of the commitments, but no credit for time he spent on the street. Neither the oral pronouncement from the bench nor any of the written judgments state that credit for time served is denied for tim e spent while incarcerated on another of the charges. ¶11 From the bench, the District Judge stated that Megard was to receive credit for time spent at the WATCH program, at a pre-release center, or in another state institution on each

5commitment. However, Megard spent some time in prison on all three charges, and in connection with DC-01-29, he spent up to 13 m onths at the WATCH program. There is no indication whether time spent in jail, whic h was not suspended tim e on one commitment, was to be credited as time sp ent on the suspended portion of another of the commitments. The oral judgment is h opelessly confusing. ¶12 However, the written judgments are not confus ing. They are precise, and state the exact number of days of incarceration Megard wa s to be credited with on each commitment. ¶13 On September 22, 2004, the State filed mo tions to correct Megard’s judgment and

sentence in both DC-99-6 and DC-01-29. The St ate alleged that Megard had received too many days credit against these sentences. The State argued that Megard should have received only 89 days credit on DC-99- 6, and 47 days credit on DC-01-29. ¶14 Over Megard’s objection, the District Court granted the State’s motions and on October 29, 2004, issued a Judg ment and Sentence Nunc Pro Tu nc in both cases, changing

the credit for time served to 89 days in DC-99-6 and 47 days in DC-01-29. This appeal

followed. ¶15 The issue before the Court is whether th e District Court erred in amending its judgments, nunc pro tunc , to the effect that Megard re ceived less credit for time served. ¶16 This Court reviews a district court’ s imposition of senten ce for legality only. State v.

Kroll , 2004 MT 203, & 12, 322 Mont. 294, & 12, 95 P.3d 717, & 12. The question is one of

law and the determination is whether the dist rict court interpreted the law correctly. Kroll , & 12.

6¶17 Once a valid sentence has been pronounced, the court imposing that sentence has no authority to modify or change it, except as provided by statute. State v. Fertterer (1993), 260 Mont. 397, 400, 860 P.2d 151, 154. The applicable st atute in the present case, ' 46-18- 116(2)-(3), MCA, provides as follows: (2) If a written judgment and an oral pronouncement of sentence or other disposition conflict, the defendant or the prosecutor in the county in which the sentence was imposed may, within 120 days after filing of the written judgment, request that the co urt modify the written judgment to conform to the oral pronouncement. The court shall modify the written judgment to conform to the oral pr onouncement at a hearing, and the defendant must be present at the hearing unless the de fendant waives the right to be present or elects to proceed pursuant to 46-18-115. The defendant and the prosecutor waive the ri ght to request modificati on of the written judgment if a request for modification of the wr itten judgment is not filed within 120 days after the filing of the written ju dgment in the sentencing court. (3) The court may correct a factually erroneous sentence or judgment at any time. Illegal sentences must be addressed in the manner provided by law for appeal and postconviction relief.

¶18 The oral pronouncement from the bench, while confusing, does not conflict with the written judgments. Thus, it is the written j udgments of April 29, 2003, that control Megard’s commitments, unless they can be corr ected pursuant to § 46-18-116, MCA. The District Court entered the original written j udgments on April 29, 2003. The State did not move to correct these judgments until Sept ember 22, 2004, appr oximately seventeen months later. Thus, only subsection (3) of § 46-18-116, MCA, could apply in this case, which allows a factually erroneous judgme nt to be corrected at any time. ¶19 Pursuant to § 46-18- 116, MCA, and long standing precedent, a court can amend a factually erroneous judgment. State v. Winterrowd , 1998 MT 74, ¶ 14 , 288 Mont. 208, ¶ 14, 957 P.2d 522, ¶ 14. Such an amendment ma y only be made to corre ct an error that is

7apparent on the face of the reco rd so as to insure that the correction doe s not in effect set aside a judgment actually rendered nor ch ange what was orig inally intended. State v. Christianson, 1999 MT 156, ¶ 25, 295 Mont. 100, ¶ 25, 983 P.2d 909, ¶ 25; State v. Owens (1988), 230 Mont. 135, 138, 748 P. 2d 473, 474. The law does no t permit a court to exercise a revisory power over its own ad judications after they have, in contemplation of the law, passed out of the “breast of the judges.” Fredericks v. Davis (1887), 6 Mont. 460, 463, 13 P. 125, 127 (quoting Freem. Judgm. (2 nd Ed.) § 101). It is in cumbent upon a sentencing judge to choose his words carefully so that the defendant kn ows what his sentence is. State v. Lane, 1998 MT 76, ¶ 38, 288 Mont. 286, ¶ 38, 957 P.2d 9, ¶ 38. ¶20 The distinction between what ca n be corrected by a judgment nunc pro tunc and what cannot was drawn by Justice Bach some time ago. The court does not have the power to amend the record, in order th at the record may show that which did not take place, thus exercising a revisory or appella te power over its own decisions. What the court always has is the power to make the record speak the truth. Territory v. Clayton (1888), 8 Mont. 1, 16- 17, 19 P. 293, 300. ¶21 The District Court, in its orders gran ting the State’s motions to correct the judgments, nearly a year and a half later, ruled that its inte ntions were not carried out in the written judgments of April 29, 2003, and that such judgments granted Megard too much credit for time served. However, these first judgments are not factually incorrect. They

state the truth of what credit for time served was at that tim e ordered. They are not in conflict with the oral pronouncement of Mega rd’s sentences from the bench. The record created at or near the time of sentencing reflec ts the intent of the sent encing judge. In order

8to enter the later judgments of October 29, 2004, an amendment adding to the record was required. Thus, the amended judgments of Octo ber 29, 2004, are not within the purview of § 46-18-116(3), MCA, are illegal, and must be vacated. ¶22 The judgments entered Octobe r 29, 2004, in Lincoln C ounty Cause Nos. DC-99-6 and DC-01-29 are vacated, and this case is rema nded to the District Cour t with directions to re-instate the judgments entered on April 29, 2003, in both DC-99-6 and DC-01-29.

/S/ JOHN WARNER

We Concur:

/S/ KARLA M. GRAY /S/ JAMES C. NELSON /S/ W. WILLIAM LEAPHART /S/ JIM RICE

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