State v. W. Asby
2017 MT 300N
| Mont. | 2017Background
- Wayne Edward Asby was arrested August 8, 2015 for aggravated assault; at the time he was on conditional release from Montana State Prison for a prior conviction.
- His conditional release was revoked; he remained in custody on the prior conviction after the revocation.
- On August 24, 2015 the State charged Asby in this case (aggravated assault and partner/family-member assault); partner/family-member charge was later dismissed.
- Presentence investigation reported Asby had served 464 days in custody between arrest and sentencing.
- At sentencing the District Court awarded credit only for the period from arrest until revocation of conditional release, concluding the post-revocation time was service on the prior sentence.
- Asby, pro se on appeal, argued he was entitled to credit for all 464 days and that trial counsel was ineffective for failing to secure that credit in the plea agreement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Asby is entitled to presentence credit for all 464 days between arrest and sentencing | Asby: all 464 days were incarceration for a bailable offense in this case and must be credited under § 46-18-403(1), MCA | State/District Court: time after revocation was service on prior sentence (inmate status), not creditable to this conviction | Court affirmed: only pre-revocation custody credited; post-revocation custody served on prior case and not credited to this sentence |
| Whether counsel was ineffective for failing to obtain 464 days credit in plea agreement | Asby: counsel failed to negotiate/communicate credit; counsel allegedly promised the credit | State: counsel did argue entitlement to credit; court ruled on legal issue; Asby cannot show prejudice required under Strickland/Whitlow | Court affirmed: no ineffective assistance—Asby cannot show prejudice because the court correctly ruled the time was not creditable |
Key Cases Cited
- State v. Herman, 343 Mont. 494, 188 P.3d 978 (2008) (standard of review for sentences imposing a year or more of incarceration)
- State v. Garrymore, 334 Mont. 1, 145 P.3d 946 (2006) (questions of law reviewed de novo)
- State v. Lucero, 323 Mont. 42, 97 P.3d 1106 (2004) (ineffective assistance claims are mixed questions reviewed de novo)
- Whitlow v. State, 343 Mont. 90, 183 P.3d 861 (2008) (adopts Strickland two-part test in Montana)
- Strickland v. Washington, 466 U.S. 668 (1984) (establishes two-part ineffective assistance of counsel test)