Vickery v. Salmonsen
OP 21-0608
| Mont. | Dec 14, 2021Background:
- In 2012 Vickery pled guilty to felony sexual assault of a 12‑year‑old; Missoula County sentenced him to a 30‑year term, all suspended, and placed him on probation as a Level I sex offender.
- After a contested revocation hearing on July 5, 2016, the district court revoked the suspended sentence, imposed a 30‑year term with no suspension, set a 10‑year parole‑eligibility restriction, and awarded 106 days’ credit for time served in 2012 and 2016.
- The district court’s written judgment expressly denied any credit for "street time" and explained its reasons, including the nature of the violations and public safety concerns; it also reclassified Vickery as a Level III sex offender.
- Vickery filed a pro se habeas petition claiming Montana DOC miscalculated his sentence by failing to credit 1,361 days of time on probation (Aug. 10, 2012–July 5, 2015), arguing he effectively faces a 33‑year term rather than 30 years.
- The court considered statutory authority governing credit for elapsed probationary time (§46‑18‑203(7)(b), MCA (2015)) and whether habeas review is available for a sentence upon revocation (§46‑22‑101(2), MCA).
- The Supreme Court denied the habeas petition, concluding probationary (street) time is not automatically credited, the trial judge properly exercised discretion to deny credit, and habeas is not a vehicle to challenge the revocation sentence.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to street‑time credit for time on probation | Vickery: entitled to 1,361 days credit for time on probation; otherwise serves 33 years | DOC / court: probation is not custodial; court has discretion and expressly denied street time credit | Denied — statutes do not require credit for probation time; judge properly exercised discretion under 2015 law and expressly denied credit |
| Availability of habeas to challenge revocation sentence | Vickery: seeks habeas relief to correct alleged illegal sentence calculation | State: habeas is procedurally barred for sentence‑upon‑revocation challenges under Montana law | Denied — §46‑22‑101(2) bars habeas attack on revocation sentence; no illegal restraint shown |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (standards for counsel seeking to withdraw on appeal)
- McDermott v. Mahoney, 29 P.3d 992 (Mont. 2001) (courts have discretion to allow or deny credit for elapsed probationary time)
- Miller v. Eleventh Judicial Dist. Ct., 154 P.3d 1186 (Mont. 2007) (habeas relief unavailable to challenge valid sentences where no illegal restraint is shown)