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 JudicialDistrict, In and for the County of Deer Lodge, The Honorable Robert J. Boyd,Judgepresiding.

COUNSELOF RECORD: ForAppellant: 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

ClerkMr. 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-1County, 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 theMontana State Prison. Hewas 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 lawdid notpermit aparolee to earn good time duringparole. 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 forgood time earnedwhile hewas 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 tobe persuasiveand after finding that the applicationof the petitioner'sgood time earnedwhile he

was on parole to the petitioner's second sentence,effectively discharged the petitioner's second sentence, ordered thepetitioner released from custody. The issues before this Court are: 1) whether the petitionerwas 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 allowancesnow reads: "Aperson may not earn good time under this sectionwhile he is onprobation orparole." Before the 1981amendments 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 beforeApril 1, 1-955,sha.11have 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 convictedprior toApril 1, 1955. Thisbeliefwas challenged. by two inmates in Cristv. Segna (Mont. 1981), 622P.2d 1028, 38 St.Rep. 150,where this Court held that theplain meaning of section 53-30-105 is that parolees are entitled to good time while on parole. As the 1981 a-mendmentswere 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 sentencewas to be served concurrentlywith the first sentence,the discharge date of the first sentence was rendered meaningless and allgood 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 sentencingprovided that: "Any prisoner who cornmi-tsa. crime while at large upon parole or conditional release, and who is convicted and sentenced therefor, shall serve such sentenceconcurrentlywith 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 doesnot require that sentencesbe merged for thepurposes 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.nmatesto follow the rules and conditions set forth by the Department 

### of Institutions and the prison administration. Therefore, the manner j.nwhich 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 onparole, 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 abideby 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 timehe ha.dpreviously 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 beallowed to app1.y his previously earned qood time to his second sentence. Itwould seem incongruous that thepetitioner be allowed to benefit from his previous1.y earned good time where he commits a crime before fully serving his first sentence, and yetnotbe allowed the same benefit if the first sentencehad 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 onhis second sentence. We ho1.d that the good time earned by the petitioner while onparole 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~tenceshall be applied to his second sentence. This Court recognizes that the application of the good time to thepetitioner's first sentencewill 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. TheDistrict Court is reversed and the case remanded for furtherproceedings consistent with this opinion.

/ Justice

/

We Concur: