IN THE SUPREME COURT OF THE STATE OF MONTANA

ZANE AARON TENOLD,

Petitioner,

v. WARDEN JIM SALMONSEN,

Respondent. OP 21-0048 

# F!' MAR 2 3 2021

Sowen Cireenwood Clerk of Supreme Court State of Montana
ORDER

Zane Aaron Tenold has filed aPetition for a WritofHabeas Corpus,explaining that he is due more credit for time served for his concurrent sentences from the Ravalli County District Court. In compliance with this Court's February 3, 2021 Order, the Special Assistant Attorney General for the Department of Corrections (the Department or DOC) responds that Tenold's Petition should be denied because Tenold has a consecutive sentence. Lastly,Tenold moves this Court for leave to file a reply brief. Both Tenold and the Department provide his criminal sentencing background along with attachments. Tenold has four criminal cases; three are relevant here.' In 2007,the Ravalli County District Court accepted Tenold's pleas of guilty to felony criminal endangermentand felony theft. TheDistrict Court imposed adeferred sentence ofsix years on each offense to run concurrently and awarded twenty days ofcredit for time served. In 2010,the District Courtrevoked Tenold's deferred sentence and sentenced Tenold to two, suspended, concurrent ten-year commitments. Tenold points out that he received fifty-three days ofcredit for time served. On April 20, 2016, the court again revoked Tenold's suspended sentence and resentenced him to two,concurrentDOC ten-year commitments with five years suspended (hereinafter first sentence). Tenold received 72 hours or three days of credit for time
Tenold's second sentence,as designated by the DOC,originated in the Gallatin County District Court,and Tenold has since discharged it. 03/23/2021

Case Number: OP 21-0048served. On April 21, 2016,Tenold received a separate sentence for felony theft, and the

District Courtsentenced him to a ten-year DOC commitment with five years suspended,to run concurrently with his first sentence (hereinafter third sentence). On March 14,2018,Tenold appeared again in the Ravalli County District Court for sentencing (hereinafter fourth sentence). The District Court committed Tenold to theDOC for an unsuspended, five-year term, to run concurrently with his third sentence. The District Court,however,did not state how this fourth sentence would run to Tenold's first sentence. Tenold contends that the DOC Montana State Prison (MSP)Records Department has not included the correct amount ofcredit. He contends that all ofhis credit for time served should merge with the concurrent running ofhis sentences. He further contends that this miscalculation affects his parole eligibility and discharge dates. Tenold states that he has an upcoming appearance before the Board ofPardons and Parole. The Department explains that contrary to Tenold's assertions his sentences do not all run concurrently. The Department states that his sentence calculations are correct and provides an affidavit from the MSP Records Department Manager. Because the District Court did not expressly state how his fourth sentence would run with his first sentence,the Department points out that under Montana law,the fourth sentence runs consecutively to his first sentence. Section 46-18-401(4),MCA. Consequently,the Department concludes thathis sentences donotmerge. The Departmentexplains in detail the creditoftime served
as applied to each sentence and that any suspended,noncustodial time ofhis first sentence would not be served until Tenold serves the custodial portion Ofhis fourth sentence. We agree with the Department that not all ofTenold's sentences run concurrently. We conclude that the running ofTenold's sentences is correct. Upon review,however,this Court has concern with Tenold's first sentence because he may have not received all the credit thathe was due,making it longer than the law allows. Section 46-18-403(1),MCA; Lott v. State, 2006 MT 279, ¶ 22, 334 Mont. 270,150 P.3d 337. We point out that the District Court awarded Tenold twenty days ofcredit for time served in jail in his original deferred sentence. Section 46-18-201(9), MCA. For the 2010 revocation of his first 2sentence,as Tenold mentions,he received fifty-three days for credit in detention. Section

46-18-203(7)(b), MCA. According to the sentence calculation provided by each party, Tenold only received three days of credit for time served. It is unclear whether Tenold would be due at a minimum,twenty days,or at a maximum,seventy-three (20 + 53)days ofcredit for time served,without duplication along with the 72 hours for his first sentence because it was not included in the 2016 revocation judgment for his first sentence. Therefore, IT IS ORDERED that the counsel for the Department ofCorrection is GRANTED thirty days from the date ofthis Order in which to prepare, file, and serve a supplemental response to the issue ofwhether Tenold is entitled to any more credit for time served on his first sentence. M.R.App.P. 14(7)(b). This Court will issue a decision on Tenold's Petition after receipt ofthe supplemental response. IT IS FURTHER ORDERED that Tenold's Motion for Leave to File Reply Briefis DENIED and DISMISSED. M.R.App.P. 14(7)(a). The Clerk is directed to provide a copy of this Order to counsel ofrecord and to Zane Aaron Tenold personally. DATED this 234day ofMarch,2021.

ChiefJustice

Justices
3