Opinion
OP 24-0307
06-25-2024
MIKEL LETHERMAN, Petitioner, v. JACKIE KEERY, GALLATIN COUNTY DETENTION CENTER, Respondent.
ORDER
Representing himself, Petitioner Mikel Letherman has filed a Petition for Writ of Habeas Corpus, indicating illegal incarceration due to a lack of credit for time served upon resentencing and alleged invalidity of his bail-jumping conviction. In compliance with this Court's May 24,2024 Order, the Attorney General's Office has filed a response, requesting denial of his Petition because his bail jumping conviction is valid.
The State provides Letherman's sentencing history, which we summarize here. On May 5, 2020, Letherman appeared in the Thirteenth Judicial District Court, Yellowstone County, for his initial arraignment after his arrest two days earlier for felony driving under the influence of alcohol, 4th or subsequent, (DUI) per se. Letherman then chose to proceed as a self-represented litigant after the court's bench trial and his conviction. The District Court set the sentencing hearing for April 21, 2021, for which Letherman failed to appear.
The State subsequently charged Letherman with felony bail-jumping for his failure to appear. Letherman was arrested on May 6, 2021, remaining in custody until his re-scheduled June 29, 2021 sentencing hearing. On that day, the District Court sentenced Letherman to the Department of Corrections (DOC) for a five-year term with three years suspended for the DUI. The court awarded fifty-nine days of credit for time served. On his own behalf, Letherman appealed.
In November 2021, a jury found Letherman guilty of bail-jumping. The District Court committed him to the DOC for a consecutive, five-year term and awarded credit for time served. Letherman appealed, challenging his bail-jumping conviction. This Court affirmed. State v. Letherman, No. DA 22-0280, 2023 MT 213N, 2023 Mont. LEXIS 1108 (Nov. 7, 2023).
This Court granted his petition for an out of time appeal "to determine whether the District Court erred by relying exclusively on the disputed PSI to impose a felony DUI sentence." State v. Letherman, 2023 MT 196, ¶ 6, 413 Mont. 459, 537 P.3d 862. We concluded that Letherman had a misdemeanor third offense DUI and remanded for resentencing. Letherman, ¶ 19.
On April 3, 2024, the District Court resentenced Letherman. The District Court sentenced Letherman to the DOC for a one-year term for misdemeanor operation of a noncommercial vehicle by a person with an alcohol concentration of 0.08 or more, third offense. The court makes no mention of credit for time served from 2021.
In his instant Petition, Letherman indicates that he is due credit for time served. He does not provide any dates, but mentions that he was resentenced in open court on March 11,2024. He points to his second conviction of bail jumping, arguing that it may be invalid. Citing to § 45-7-308(3), MCA, he contends that he should have originally had a misdemeanor DUI conviction thereby nullifying any bail jumping charge. He states that he missed his sentencing hearing for the felony DUI conviction, and then he received the bail jumping charge.
The State puts forth that Letherman is not entitled to habeas corpus relief because he does not have an illegal sentence. The State contends that Letherman does not provide any information about time served or to which criminal case he is referring. The State points out that Letherman discharged the one-year DOC sentence for the misdemeanor DUI on May 11, 2022, thereby mooting any request for credit for time served and nullifying the court's omission of such credit. Turning toward his other sentence for bail-jumping, the State provides that the court's award of credit of 327 days (May 6,2021 to March 28,2022) has been applied to his sentence. The State submits that Letherman's discharge date is June 7, 2026. The State addresses Letherman's challenge to the bail-jumping conviction and provides that this Court's remand to the District Court for sentencing upon a misdemeanor DUI does not negate his conviction for bail-jumping.
This Court points out that a Petitioner, such as Letherman, cannot challenge a conviction through a writ of habeas corpus. Section 46-22-101(1), MCA. Furthermore, as noted above, Letherman appealed his bail-jumping conviction in 2022, exhausting the remedy of appeal with this Court. Section 46-22-101(2), MCA. We conclude that the State's arguments are dispositive of Letherman's claims here.
Letherman has not demonstrated illegal incarceration. Section 46-22-101(1), MCA. He has not shown that he is due additional credit for time served nor can he challenge a conviction regardless of this Court's remand for another conviction. Letherman is not entitled to his release, a sentence recalculation, or dismissal of his cases. Therefore, IT IS ORDERED that Letherman's Petition for Writ of Habeas Corpus is DENIED and DISMISSED. IT IS FURTHER ORDERED that this matter is CLOSED as of this Order's date.
The Clerk of the Supreme Court is directed to provide a copy of this Order to Jackie Keery, GCDC; to counsel of record, and to Mikel Letherman personally.