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No. 00-574 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2000 MT 324

303 Mont. 8

15 P. 3d 884

CRISS A. CASE,

Petitioner,

v..

MIKE MAHONEY, Warden, Montana State Prison,

Respondent.

ORIGINAL PROCEEDING: Writ of Habeas Corpus 

COUNSEL OF RECORD:

For Appellant:

Criss A. Case, Pro Se, Deer Lodge, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; Diana P. Leibinger-Koch, 

Special Assistant Attorney General, Montana Department of Corrections

Helena, Montana

Submitted: December 7, 2000 

Decided: December 12, 2000

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Filed:

__________________________________________

Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

¶1 Petitioner (Case) is an inmate at the Montana State Prison where he has served approximately twenty 

years on a 175-year sentence. He argues that he has been incorrectly declared ineligible for parole and 

petitions this Court for a writ of habeas corpus directing the Warden of the Montana State Prison to 

declare him eligible. The Montana Department of Corrections (DOC) has filed a response in opposition.

BACKGROUND

¶2 On June 20, 1979, Case pled guilty to three counts of murder, three counts of aggravated kidnaping, 

one count of robbery and one count of theft. The District Court imposed a sentence of seventy-five years 

on each of three murder counts (to run concurrently); seventy-five years on each of three counts of 

aggravated kidnaping (to run concurrently); twenty years for robbery and five years for theft. The 

murder, kidnaping, robbery and theft sentences were all ordered to run consecutively so that the sentence 

resulted in a 175-year term of imprisonment. Case was designated a nondangerous offender and given 

credit for pretrial incarceration

DISCUSSION

¶3 Under Montana law, any person deprived of liberty may petition this Court for a writ of habeas 

corpus to be delivered from illegal imprisonment or restraint. Section 46-22-101(1), MCA. Furthermore, 

this Court has held that prisoners sentenced prior to 1989 have a liberty interest in parole that is 

protected by the due process clause of the federal constitution. Worden v. Board of Pardons, 1998 MT 

168, ¶ 41, 289 Mont. 459, ¶ 41, 962 P.2d 1157, ¶ 41 (citing Board of Pardons v. Allen (1987), 482 U.S. 

369, 377, 107 S.Ct. 2415, 2420, 96 L.Ed.2d 303, 312). Therefore, Case's parole eligibility is a proper 

subject for our habeas review. 

¶4 The controlling parole eligibility statute at the time of the Case's conviction was § 46-23-201(1)(a), 

MCA (1978). It provides in relevant part:

[A] convict designated as a nondangerous offender under 46-18-404 may be paroled after he has 

served one-quarter of his full term, less the good time allowance provided for in 53-30-105. Any 

offender serving a time sentence may be paroled after he has served, upon his term of sentence, 

171⁄2 years. 

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The controversy arises out of the seeming conflict between the first and last sentences of § 46-23-201(1)

(a), MCA (1978), and the application of those provisions to prisoners serving consecutive sentences. As 

a designated nondangerous offender, Case is eligible for parole either after he has served one-quarter of 

his full term, less good time, or after he has served seventeen and one-half years upon the term of his 

sentence. Case relies upon the second sentence of the statute to conclude that he is eligible for parole as 

of May 9, 1996- seventeen and one-half years after he began serving his sentence. DOC applies the "onequarter less good time" rule to the 175-year sentence and concludes that Case is not entitled to be 

considered for parole until June 11, 2004. 

¶5 DOC cites State ex rel. Herman and Roy v. Powell (1961), 139 Mont. 583, 367 P.2d 553, for the 

proposition that the one-quarter less good time rule is the only applicable rule for determining parole 

eligibility. In doing so, however, DOC, misstates the law and misconstrues our holding in that case. 

Rather than setting out a rule for determining parole eligibility, the language DOC cites from Herman

merely suggests a method of calculating one-quarter time for inmates serving consecutive sentences.

¶6 Historically, the Board of Pardons determined parole eligibility separately for each term of a 

consecutive sentence. An inmate serving consecutive sentences of eight and twelve years, for example, 

could be paroled after two years on the first sentence but remain incarcerated serving the second 

sentence. After three more years he would become eligible for parole on the second sentence and could 

be released from prison. The net effect was the same as if the Board had simply applied the one-quarter 

rule to the entire term of twenty years and released the prisoner on parole after five years.

¶7 InHerman, the defendant had been sentenced to a five-year term in the Montana State Prison. He 

escaped and, following his recapture, was sentenced to an additional term of one year. Shortly thereafter, 

he was paroled on the original charge but remained incarcerated on the escape charge. A few months 

later he was paroled on the escape charge and released from prison. He then violated the conditions of 

parole and was returned to prison.

¶8 At the time, he had approximately two years left on his original sentence and several months left on 

his escape sentence. The question in the case was how much time he should serve after he was returned 

to prison. Herman argued that his parole on the escape charge acted as a discharge of his original 

sentence and he was entitled to be released from prison when the escape sentence was served. The Court 

presented the issue in the case as "whether the granting of a parole to the escape sentence . . . in effect 

resulted in a discharge of the original sentence. Herman, 139 Mont. at 586, 367 P.2d at 555. 

¶9 The Court held, of course, that it did not. Along the way, however, we commented on the system 

used by the Board to calculate parole eligibility for inmates subject to consecutive sentences:

The Board could, in order to avoid any ambiguity or confusion in the case of consecutive 

sentences, issue one parole to cover the maximum period of confinement. The result, of course, 

would be the same. That is, the prisoner would be required to serve a period equivalent to one 

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fourth of the combined total of each sentence (less good time) before he would be eligible for 

parole.

Hermon, 139 Mont. at 589-90, 367 P.2d at 557. What was originally an aside about how the Board of 

pardons might simplify the parole eligibility calculation has subsequently been cited by DOC as the 

"longstanding rule" of Herman, that prisoners are required to serve one-quarter of their total sentence 

before becoming eligible for parole. See also Taylor v. Risley (1984), 210 Mont. 356, 684 P.2d 1118.

¶10 Taylor came before the Court on a motion for clarification regarding a previous denial of a habeas 

petition. The petitioner had been serving three consecutive sentences. He was paroled on all three 

sentences but later had his parole revoked. In denying his habeas petition the Court stated that:

"The action of the Board of Pardons purporting to release petitioner on parole from all three 

consecutive sentences was and is illegal. All the time served, whether in prison or on parole, 

applies only against the twenty year sentence for robbery, and petitioner has never begun serving 

his sentence for second degree assault or escape." Taylor, 210 Mont. at 357, 684 P.2d at 1119 

(citation omitted). Both the petitioner and the State sought clarification of this language and its 

implication for the procedure for calculating parole eligibility on consecutive sentences. In 

Taylor, this Court struck this language from its previous order and reaffirmed the rule of Herman; 

i.e., that parole eligibility should be determined by applying the one-quarter rule to the total

sentence.

¶11 Of course, neither Herman nor Taylor deals with application of the seventeen and one-half year rule 

to consecutive sentences. And neither resolves the apparent conflict between the "one quarter" and 

"seventeen and one-half year" rules that we must resolve here. Rather, they simply say that, when 

applying the one-quarter rule to prisoners serving consecutive sentences, the Board of Pardons should 

use the total term rather than the individual sentences for each offense as a basis for its calculations of 

parole eligibility. The issue presented here is not how one-quarter time should be calculated for 

prisoners serving consecutive sentences, but which of two seemingly contradictory statutory provisions 

applies to determine an inmate's parole eligibility.

¶12 The legislature has given us clear guidelines for construing statutes. Where a statute contains several 

provisions or particulars, we are to construe them, if possible, in such a way as will give effect to all. 

Section 1-2-101, MCA; Butte v. Indus. Accident Board (1916), 52 Mont. 75, 77, 156 P. 130, 131; 

Stadler v. Helena (1912), 46 Mont. 128, 139, 127 P. 454, 457. The intention of the legislature is to be 

pursued if possible. Section 1-2-102, MCA. 

¶13 Both Case and DOC contend that the other's interpretation vitiates the remaining statutory provision. 

In addition, DOC argues that the seventeen and one-half year rule is either inapplicable to consecutive 

sentences or must be applied against each individual term to determine eligibility. It is suggested that 

this latter approach somehow harmonizes the two provisions, but it is unclear to this Court how one 

could apply both the one-quarter rule to the total term and the seventeen and one-half year rule to each 

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individual term to achieve any rational or consistent determination of eligibility. Rather, we conclude 

that the only way to give effect to both provisions and the intention of the legislature is to interpret § 46-

21-201(1)(a), MCA (1978), as establishing a general "one quarter less good time" rule subject to a 

seventeen and one-half year outer limit on parole eligibility.

¶14 Montana's original parole eligibility statute was enacted in 1907. It includes the distinction between 

"time" sentences and "life" sentences which has been retained in the modern statute. The original, 

however, more clearly indicates the character of the statute as a general rule with an outside limit on 

parole eligibility:

That no convict serving a time sentence shall be paroled until he has served at least one-half of 

his full term, not reckoning his good time; except that any convict serving a time sentence may be 

paroled after he shall have served, upon his term of sentence, twelve and one half years. 

Section 9573, R.C.M. (1907). Although the proportions and time limits are now one-quarter of the term 

and seventeen and one-half years rather than one-half of the term and twelve and one-half years, the twopart structure of today's statute is also found in the original. But, in the original, the clause dealing with 

the twelve and one-half year limit clearly modifies the general "one-half" rule. 

¶15 In 1975, the legislature amended the statute to include a special condition for persistent felony 

offenders. In doing so, they shifted the modifying clause to the end and made it a new sentence:

That no convict serving a time sentence shall be paroled until he has served at least one-quarter 

(1/4) of his full term, less the good time allowance off, as provided in section 80-1905; except 

that no convict designated a persistent felony offender under section 95-2206.5 may be paroled 

until he has served at least one-third (1/3) of his full term, less good time allowances off, as 

provided in section 80-1905. A first offender serving a time sentence may be paroled after he has 

served, upon his term of sentence, twelve and one-half (12 1⁄2) years. A persistent felony offender 

as defined in section 95-2206.5 may be paroled after he has served, upon his term of sentence, 

seventeen and one-half (17 1⁄2) years. [Emphasis added.]

See Compiler's Notes, Section 95-3214, R.C.M. (1977). The special conditions for persistent felony 

offenders and first offenders were dropped in 1977 and replaced with a special condition for 

nondangerous offenders. In doing so, the legislature left the seventeen and one-half years condition in a 

separate sentence. However, there is no evidence in the legislative histories that placement of this "outer 

limit" condition in its own sentence was other than a stylistic change necessitated by the inclusion of the 

special condition for persistent or nondangerous offenders and then simply retained after those 

provisions were deleted.

¶16 Therefore, while the two conditions in § 46-23-201(1)(a), MCA (1978), are in apparent conflict, 

they can be harmonized in a way that comports with the intent of the legislature. Section 46-23-201(1)

(a), MCA (1978), must be read as establishing a general one quarter less good time rule subject to a 

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seventeen and one-half year outer limit on parole eligibility for nondangerous offenders. Under this 

interpretation, Case became eligible for parole after serving seventeen and one-half years of his 

sentence. He has already served over twenty years. 

¶17 THEREFORE, IT IS HEREBY ORDERED that Case's writ of habeas corpus is GRANTED.

¶18 IT IS FURTHER ORDERED that the Warden is DIRECTED to declare Case eligible for parole.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ J. A. TURNAGE

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER 

/S/ JAMES C. NELSON

/S/ TERRY N. TRIEWEILER 

/S/ KARLA M. GRAY

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