DA 20 - 0033



### IN THE SUPREME COURT OF THE STATE OF MONTANA 20 2 1 MT 145N ST ATE OF MONTANA,

Plaintiff and Appellee, v. JUSTIN LEE LONGTINE,

Defendant and Appellant. APP EAL FROM: Di strict Court of the Eleventh Judicial District ,

In and For the County o f Flathead , Cause No s . DC - 09 - 461(A) , DC - 12 - 304(A), D C - 14 - 376(A) , and DC - 19 - 036(A) Honorable Amy Eddy, Presiding Judge COUNSEL OF RECORD:

For Appellant: Chad Wr ig ht , Appellate Defender, Moses Okeyo , Assistant Appellate Defender, Helena, Montana For Appellee : Au stin Knudsen, Montan a Attorney General, Kat ie F . Schulz, Assistant Attorney General , Helena, Montana Travi s R. Ahner, Flathead Count y Attorney, Amy Kennison, Deput y County A ttorney, Kalispe ll , Montana

Submitted on Briefs: May 12, 2021 Decided: June 8, 2021 Filed:

__________________________________________ Clerk 

# sr---6ma•—•f 06/08/20212

Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 Purs uant to Section I, Paragraph 3(c ), Montana Supre me Court Inte rnal Ope rating Rules, this case is decided by me morandum opinion and shall not be cited and does not serve as precedent . Its case title, cause number, and disposition shall b e inc lud ed in this Court’s quarterly list of noncitable cases publis hed in the Pa cific Reporter and Montana Reports. ¶2 Justin Lee Longtine appeals an order from the Eleventh Judicial District Court, Flathead County , denyin g him street time credit when his probationary sentences for driving under the influence (DUI) , criminal en dangerment , and the ft were revoked . We aff irm. ¶3 In April 20 12, Longtine pled guilty to theft and bail jump ing in D C - 09 - 461( A) and DC - 11 - 294(C) , respec tively. Th e District Court de f erred imposition for two years and imposed a conc urrent term of s ix month s in jail, all suspended. In July 2012, Longtine was charged with felony assault with a weapon and felony partner/family me mber assault in DC - 12 - 304(A). The State filed a report of violation and a petition to revoke his de ferred sentence s in DC - 09 - 461(A) and DC - 11 - 2 94(C) . Longtine ’ s bon d was revoked because he continued to use alcohol and he was arrested on an outstanding warrant. The report of violation indicated Longtine violated the conditions of his prob ation by consuming alc ohol and entering bars , possessing a firearm, and failing to remain law abiding. In January 2013, Longtine ple d guilty in DC - 12 - 304(A) to an amen ded charge of felony criminal endangerment .3

¶4 In A

pril 2013, the District Court sent enced Longtine for his convictions in DC - 09 - 461(A) , DC - 11 - 294( C ), and DC - 12 - 304(A) . Longtine was sentenced as follows: 10 years to the D epartment of C orrec tions (DOC) with 5 years suspended in DC - 09 - 461(A); a concurrent period of 6 months in DC - 11 - 294(C) ; 20 years to the D OC , all suspended, in DC - 12 - 304(A), and cons e cutive to his sentence in DC - 09 - 461(A) . Longtine entered Connections Corrections in October 2 01 3 . Two months later he transiti oned to the Billings Pre - release Center . L ongtine was granted a conditional release in June 2 014 . ¶5 Longtine ’ s conditional rele a se was revoked after he was arrested for felony DUI , DC - 14 - 3 76(D), in October 2014 . For this new offense , Lon gtine was sentenc e d to 13 months to the D OC, followed by 5 years of probation. The sentence was imposed consecutive to his sentences in DC - 09 - 46 1 (A), DC - 11 - 294(C), and DC - 12 - 304(A). Longtine was granted conditional release in November 201 5. ¶6 In late 2016, Longtine violate d his conditional release by not maintaining employment and driving without approval . He was plac ed in the Intensive Supervisio n Program (ISP) in January and remained in ISP until June of 2017. In April 2018, Longtine was unemployed an d te sted positive f or cocaine . F ollowing the test, he absconded from sup ervisi on. Longtine ’ s concurrent sentence s in D C - 09 - 461(A) and DC - 11 - 294(C ) be gan to run in August 2018 . However, h e was classified as

“non - compliant” because he had not reported since April 2018. Lon gtine ’ s probation officer filed an affidavit and addendum regarding his absconder status and recommended he not rece ive credit f

o r street time. The State filed petitions to revoke and the4

District Court issued bench warrants for his arres t . L on gtine was arrested for his second DUI offense in January 2 019, in DC - 19 - 036(A). A re vocation hearing was scheduled for February 2019 . ¶7 Lon gtine ple d not guilty to his January 201 9 DUI offense and denied the alleged probation vio lations in DC - 09 - 461( A), DC - 1 2 - 304(A), and DC - 14 - 3 76(D). The re voc ation hearing was continued twice so Longtine could complete a chemical dependency evaluation. On June 2 7, 2019, L ongtine appeared by telephone for a change of plea hearing . L ongtine pled gu ilty to the DUI ch arge in DC - 19 - 036 ( A) and admitted to violating his probationary sentences. Longtine also asserted he told his probation officer about his empl oyment change and change in residence , but did not hear back through email , which was his primary form of communi cation w ith his probation officer . The District Court revoked his probationary sentences and se t a combined sentencing and dispositi onal hearing f or No ve mber 14, 2 019. ¶8 The District Court e valuated the p robation officer ’ s affidavit an d addendum , and a pres entence investigation rep ort (PSI) pertaining to DC - 19 - 036(A). The PSI indicated Longtine “report[ ed] some sobriety with SCRAM since his releas e , ” but faile d to complete the chemical dependency evaluation . Longtine declined to speak at the dispositional hearing. Regardin g DC - 19 - 036(A)

—the January 2019 DUI charge

—the District Court sentenced Longtine to the D OC for 1 3 months followed by 5 years o n probation , with 3 days credit. Th e sentence would run consecutively to the following sente nces: DC - 09 - 461(A)

—the the ft charge

— 5 years to the DOC , suspended , with 128 days served ; DC - 12 - 304( A)

—the amended charge of criminal endangerment

—5

10 ye ar s to the D O C , suspende d , w ith 128 days served ; DC - 14 - 376(D)

—the October 20 14 DUI charge

— 5 years to the DOC , suspended , wi th 133 day s served . The net sentence imposed on Longtine was a 13 - month commitment to the DOC followed by a 20 - year commitment to th e DOC, all s u spended. The District Court did not grant any

“ good stree t tim e credit” to Longtine due to continued violatio ns of hi s probationary conditions . In December 2019, Longtine filed a motion to conform the oral and written judgments to reflect th e correct amo unt of actu al street time credit. The District Court denied the motion concluding the amended judgment and sentence co n forme d with the oral pro nouncement. ¶9 On appeal , Longtine asserts the District C o urt did not have authority to deny h im street time cre dit wi thout an evidentiary hearing. ¶10 “ This Court reviews a district court ’ s decision to re voke a s uspended sentence to determine whether the court abused its discretion. ” State v. J ardee , 2020 MT 81, ¶ 5, 399 Mont. 459, 461 P.3d 108. “ Additionally, revo cation deci sion s involve bo th legal and factual findings[,] and we review a district court ’ s legal findings de novo and its f ac tual findings for clear error. ” Jardee , ¶ 5 . “ A district court ’ s factual findings are clearly erroneous if the y are n ot support ed by substanti al credible evidence, if the court misapprehen ded the effect of the evidence, or if a re view of the re cord leave s this Court with the de finite firm conviction that a mistake has been ma de. ” Jarde e , ¶ 5 (citing State v . Johnson , 2018 MT 277, ¶ 10, 393 Mont . 320, 430 P .3d 494). ¶11 Although Longtine failed to object to the District Co urt ’ s d enial of stree t ti me credi t, we will nonetheless address the issue on appeal . Longtine argues he was entitled6

to 154 days of street time credit in DC - 09 - 461 (A) fo r the time between A ugust 201 8 and January 2019. Section 46 - 18 - 203(7)(b), MCA, provides : If a suspended or de ferred se ntence i s revoked , the judge shall consider any elapsed time, consult the records and recollection of the probation and parole off

icer, and allow all of the elaps ed time served without any record or recollection of violations as a credit ag ainst the senten ce . I f th e judge determines that elapsed time should not be credited, the judge shall state the reasons for the de te rmination in the order. Cre dit must be allow ed for time served in a detention ce nter or for home arrest time already served. Th is Court h as held th e statute now re quire s a specific demonstration of a “record or recollection of violations ” in the period in question to defeat the cre dit. Jardee , ¶ 1 1. Thus, a district court must “ state the reasons ” for a denial of credit b ased upon the reco rd or re co llection of the probation officer before street time credit may be denied for the relevant time period. Ja rdee , ¶ 11. Longtine assert s, based on Jardee , the Distri ct Court did n ot provide reasons for a d enial of credit during the time he was on probati on . However, the District Court utilized the probation officer ’ s affidavit and add endum to the report of vio lation , in addition to the P SI in its determination th at Longtine had not adh ered to the conditions of probatio n . Accordingly, the Distric t Court wa s informed that Longtine failed to report a change in address and em ployment , possess ed a firearm, consum ed alcohol and entered bars, and fail ed to abi de by laws. The District Court indicated it had “ consulted” these sources of information in de terminin g that Longtine was not entitled to credit for street time. We c onclude the Distric t Court did not err in de nying Longtin e credit for street time. ¶12 Longtine additionally argues the Dis trict Court could not consider the affidavit o r addendum to the report o f violation as proof of whether he had adhered to probation7

conditions in it s decision to deny stree t time cre dit. Both the report of vi olation and the PSI confirmed Longtine ’ s absconder status when he was arrested in J anuary 201 9 for his s econd D UI of

fen se . The report of violation included statements from Longtine ’ s probation officer recommending he not receiv e street time credit . Additionally , the PSI detailed that Longtine failed to report for his chemical dependency evaluati on . At the revocation hearing, Longtine confirmed he had n ot reported to his probation officer in April 2018 due to an inability to re ach her by email. Longtine also confirmed he had n ot informed his probation officer of the change of addres s and emplo yment by writing

— a requirement of his probation con ditions. We conclude the District Court was permitted to consider this information wh en it denied street time cre dit between the time Lon gtine began serving his probation, August 201 8 , and when he was arres ted for his second DUI off en se, January 2019. ¶13 We have determined to decide this case pursuant to Sectio n I, Paragraph 3(c ) of our Int ernal Ope rating Rules , which provides fo r me morandum opinions . In the opinion of the Court, the case presents a question controlled by se ttl ed law o r by the clear application of applicable standards of review. ¶14 Affirmed . /S/ LAURIE McKINNON We c oncur: /S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ BETH BAKER /S/ JIM RICE