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 a Petition for a Writ of Habeas 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

endangerment and felony theft. The District Court imposed a deferred sentence of six years

on each offense to run concurrently and awarded twenty days of credit for time served. In

2010, the District Court revoked Tenold's deferred sentence and sentenced Tenold to two,

suspended, concurrent ten-year commitments. Tenold points out that he received

fifty-three days of credit for time served.

On April 20, 2016, the court again revoked Tenold's suspended sentence and

resentenced him to two, concurrent DOC 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 21-0048
served. On April 21, 2016, Tenold received a separate sentence for felony theft, and the

District Court sentenced 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 the DOC

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 of credit. He contends that all of his credit for time

served should merge with the concurrent running of his 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 of Pardons 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

that his sentences do not merge. The Department explains in detail the credit of time served

as applied to each sentence and that any suspended, noncustodial time of his first sentence

would not be served until Tenold serves the custodial portion Of his fourth sentence.

We agree with the Department that not all of Tenold's sentences run concurrently.

We conclude that the running of Tenold'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 that he 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 of credit for time served in jail in his original

deferred sentence. Section 46-18-201(9), MCA. For the 2010 revocation of his first

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sentence, 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

of credit 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 of Correction is GRANTED

thirty days from the date of this Order in which to prepare, file, and serve a supplemental

response to the issue of whether 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 of the supplemental response.

IT IS FURTHER ORDERED that Tenold's Motion for Leave to File Reply Brief is

DENIED and DISMISSED. M. R. App. P. 14(7)(a).

The Clerk is directed to provide a copy of this Order to counsel of record and to

Zane Aaron Tenold personally.

DATED this 234day of March, 2021.

Chief Justice

Justices

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