No. 82-277 

IN THE SUPREME COURT OF THE STATE OF YONTAIJA 

1983 

PJAYNE L. BAGLEY, 

Petitioner and Respondent, 

-vsHENRY RISLEY, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Third Judicial District, 

In and for the County of Deer Lodge, 

The Honorable Robert J. Boyd, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Nick A. Rotering, Dept. of Institutions, Helena, 

Montana 

For Respondent: 

Wayne L. Bagley, pro se, Deer Lodge, Montana 

Aurelio P. Nardi, St. Paul, Minnesota 

Submitted on Briefs: September 2, 1983 

Decided: December 8, 1983 

Filed: 

3:' '983 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Henry Risley, as warden of the Montana State Prison, 

appeals from an order of the District Court of the Third 

Judicial District, Powel-1 County, granting habeas corpus to 

prison inmate Wayne L. Bagley. We reverse. 

On April 3, 1970, the petitioner, Wayne L. Bagley, was 

convicted of burglary in Treasure County and sentenced to ten 

years in the Montana State Prison. He was released on parole 

in December 1971, but was subsequently returned to the 

Montana State Prison in November 1976 after beinq convicted 

of burglary in Stillwater County and given another ten year 

sentence. 

The Board of Pardons revoked the petitioner's parole on 

December 29, 1976. At this time, the Board of Pardons did 

not tak~ any action to forfeit any good time that the 

petitioner may have earned on parole because the Department 

of Institutions was under the impression that the existing 

law did not permit a parolee to earn good time during parole. 

On May 13, 1-982, the petitioner filed a petition for a 

writ of habeas corpus in the District Court contending that 

he was entitled to a credit for good time earned while he was 

on parole, and that the good time earned while he was on 

parole should be applied to reduce the discharge date of his 

second sentence, as the second sentence had been merged with 

the first sentence. The District Court found the 

petitioner's argument to be persuasive and after finding that 

the application of the petitioner's good time earned while he 

was on parole to the petitioner's second sentence, 
effectively discharged the petitioner's second sentence, 

ordered the petitioner released from custody. 

The issues before this Court are: 1) whether the 

petitioner was entitled to receive good time while on parole, 

and 2) whether such good time may properly be applied to 

reduce the petitioner's discharge date on the second 

sentence. 

Section 53-30-105(3), MCA, pertaining to good time 

allowances now reads: "A person may not earn good time under 

this section while he is on probation or parole." 

Before the 1981 amendments to section 53-30-105(3) read: 

"This section applies to all persons who are on 

prohation or parole or eligible to be placed on 

probation or parole. No person convicted and 

sentenced before April 1, 1-955, sha.11 have his good. 

time allowance reduced as a result of this 

section. " 

The prison administration believed that this section 

acted only as a savings clause applicable to inmates 

convicted prior to April 1, 1955. This belief was challenged. 

by two inmates in Crist v. Segna (Mont. 1981), 622 P.2d 1028, 

38 St.Rep. 150, where this Court held that the plain meaning 

of section 53-30-105 is that parolees are entitled to good 

time while on parole. As the 1981 a-mendments were r,ot in 

effect at the time that the petitioner in this case was on 

parole, the Crist decision is applicable, and the petitioner 

is entitled to good time for the period he was on parole. 

The question now arises as to how the good time should 

he applied to the petitioner's sentences. At the hearing on 

the writ of habeas corpus before the District Court, the 

petitioner contended that because the second sentence was to 

be served concurrently with the first sentence, the discharge 

date of the first sentence was rendered meaningless and all 
good time should be applied to the discharge date of the 

second sentence. 

Section 95-3221, R.C.M. 1947, as applicable to the 

petitioner at the time of sentencing provided that: 

"Any prisoner who cornmi-ts a. crime while at large 

upon parole or conditional release, and who is 

convicted and sentenced therefor, shall serve such 

sentence concurrently with the terms under which he 

was released, unless otherwise ordered by the court 

in sentencing for the new offense." 

The statute directs that the petitioner1 s sentences run 

concurrently. The statute does not require that sentences be 

merged for the purposes of applying good time. Good time is 

given to inmates as a reward for good conduct. Stephens v. 

Conley (1914), 48 Mont. 352, 138 P. 189. As such, it is an 

incentive to the i.nmates to follow the rules and conditions 

set forth by the Department of Institutions and the prison 

administration. Therefore, the manner j.n which good time is 

credited must be consistent with the rationale behind qood - 

time . 

Here, the District Court found that if all of the good 

time earned by the petitioner while on parole, a total of 866 

days, were applied to the petitioner's first sentence, that 

sentence would have been discharged 18 days into the second 

sentence. Suppose, then, that the petitioner had continued 

to abide by the conditions of his parole a short time longer; 

if he had, his first sentence wou1.d have been discharged 

before the second sentence had begun and he would not have 

been entitled to apply any of the good time he ha.d previously 

earned to the second sentence. Instea.d, the petitioner in 

this case willfully violated the conditions of his parole by 

committing a burglary; and despite this, he a.rgues that 

simply because his two sentences overlap, he should be 
allowed to app1.y his previously earned qood time to his 

second sentence. 

It would seem incongruous that the petitioner be allowed 

to benefit from his previous1.y earned good time where he 

commits a crime before fully serving his first sentence, and 

yet not be allowed the same benefit if the first sentence had 

been duly served and discharged while on parole. If the 

principle behind good time is to be followed, the 

petitioner's misconduct should not be rewarded by granting 

him the good time on his second sentence. 

We ho1.d that the good time earned by the petitioner 

while on parole on his first sentence is to be applied to his 

first sentence. Any good time the petitioner has earned 

whi1.e serving his second se~tence shall be applied to his 

second sentence. This Court recognizes that the application 

of the good time to the petitioner's first sentence will have 

no effect on the petitioner's ultimate discharge date. This 

is proper. The petitioner cannot draw on a penal checking 

account balance of 866 days of previously earned good time in 

order to make a downpayment against a crime not yet 

perpetrated. In accord, State v. Ouimette (R.I. 1977), 375 

A.2d 209. 

The District Court is reversed and the case remanded for 

further proceedings consistent with this opinion. 

/ Justice 

/ 

We Concur: