STATE OF MONTANA v. CURTIS DEWAYNE FREEMAN (2026)

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, we decide this case by memorandum opinion. It shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2 Curtis Dewayne Freeman appeals the Thirteenth Judicial District Court's order revoking his prior sentence and sentencing him to five years with the Department of Corrections, with all but nine months suspended. Freeman argues that his sentence is illegal because the District Court failed to award him 562 days of credit for elapsed (“street”) time from November 3, 2022, to May 29, 2024. The State concedes that Freeman is entitled to ninety-three days of additional credit but argues that the District Court's calculation was otherwise correct. We affirm in part and remand with instruction for the court to amend Freeman's revocation judgment in accordance with the State's concession.¹

¶3 In 2009, Freeman pleaded guilty to one count of felony theft for stealing several items from hotels. The court committed Freeman to the Department of Corrections for ten years, with five suspended, subject to the following relevant conditions:

1. The Defendant be placed under the supervision of the Department of Corrections, subject to all rules and regulations of the Adult Probation & Parole Bureau.

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10. The Defendant is prohibited from using or possessing alcoholic beverages and illegal drugs. The Defendant is required to submit to bodily fluid testing for drugs or alcohol on a random or routine basis and without reasonable suspicion.

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17. The Defendant shall obtain a chemical dependency evaluation by a state approved evaluator. The Defendant must pay for the evaluation and follow all of the evaluator's treatment recommendations.

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22. The Defendant will not enter any casinos.

After the District Court imposed this sentence, Freeman spent the next twelve years serving custodial sentences for other criminal offenses. Freeman was discharged to serve the suspended portion of his felony theft sentence and began his probation on November 3, 2022.

¶4 In April 2023, Probation Officer Joan Hall filed a report of violation with the District Court. Hall alleged that Freeman visited multiple casinos from January 27, 2023, to March 28, 2023, and that he failed to attend multiple outpatient chemical dependency treatment sessions held in March 2023. Hall described Freeman's ongoing struggle with substance use and stated that Freeman failed to report to probation and parole on multiple occasions. After receiving Hall's report, the State petitioned the District Court to revoke Freeman's suspended sentence.

¶5 At his revocation hearing, Freeman admitted that he visited several casinos during the period in question. Freeman appeared for his disposition hearing on May 29, 2024. Hall was the lone witness. She testified that on December 20, 2022, Freeman was referred for Enhanced/Transitional Supervision Services (ETSS), after he failed a drug test. Freeman did not report to probation and parole until January 19, 2023, when he received a second sixty-day referral for ETSS. From January 27, 2023, to March 28, 2023, Freeman provided nineteen positive urinalysis (UA) tests.

¶6 Hall testified that Freeman received his chemical dependency evaluation on March 6, 2023, as required by his probation conditions, and the evaluation recommended that Freeman attend intensive outpatient treatment three days per week. But ten days after receiving this recommendation, Freeman had attended only one session. Freeman later successfully completed inpatient treatment, and Hall said that he was clean and in compliance with his probation conditions from June 2023 to September 2023. Hall testified that when Freeman reported to probation and parole on October 27, 2023, however, he signed a substance use admission form.

¶7 Freeman provided evidence that he had been attending independent counseling and working through the Alcoholics Anonymous program. He testified that as of the date of the hearing, he had been clean for nineteen days. The District Court revoked Freeman's previous sentence and sentenced him to five years with the Department of Corrections, with all but nine months suspended. The court awarded Freeman 180 days of street time credit from November 22, 2022, to December 20, 2022, and June 1, 2023, to October 31, 2023. The court credited Hall's testimony, found that Freeman was substantially noncompliant for the remainder of his sentence, and denied his request for additional elapsed-time credit.

¶8 This Court reviews a district court's determination of elapsed-time credit for legality. State v. Charles, 2025 MT 58, ¶ 10, 421 Mont. 210, 565 P.3d 1191. Revocation decisions involve legal conclusions that we review de novo and factual findings that we review for clear error. State v. Schmiedeke, 2026 MT 96, ¶ 8, 428 Mont. 80, 588 P.3d 850. We thus review a court's findings underlying its calculation of street time credit for clear error. Schmiedeke, ¶ 8. Factual findings are clearly erroneous if “they are not supported by substantial credible evidence, if the court misapprehended the effect of the evidence, or if a review of the record leaves this Court with the definite firm conviction that a mistake has been made.” State v. Jardee, 2020 MT 81, ¶ 5, 399 Mont. 459, 461 P.3d 108 (citation omitted).

¶9 Section 46-18-203(7)(b), MCA (2023), provides:

If a suspended or deferred sentence is revoked, the judge shall consider any elapsed time, consult the records and recollection of the probation and parole officer, and allow all of the elapsed time served without any record or recollection of violations as a credit against the sentence. If the judge determines that elapsed time should not be credited, the judge shall state the reasons for the determination in the order. Credit must be allowed for time served in a detention center or for home arrest time already served.

A court may not deny street time credit based solely on a defendant's “pattern” of criminal behavior. Jardee, ¶ 11. The State must “point to an actual violation by the defendant, in the relevant time period, found in the record or recollection of the probation officer, to establish a basis for denial of street time credit for that period ․” Jardee, ¶ 11. The court may, however, consider violations continuous “if the record or recollection of the probation officer supports such conclusion.” State v. Shewalter, 2025 MT 202, ¶ 18, 424 Mont. 76, 575 P.3d 960 (citing Jardee, ¶¶ 11-12).

¶10 Freeman argues that the District Court erred when it failed to award him 562 days of street time credit from November 3, 2022, to May 29, 2024. Freeman claims that the record does not contain substantial evidence of specific violations during this period and that the court failed to articulate reasons for denying him additional credit. The State concedes that Freeman complied with his probation and is entitled to ninety-three days of street time credit for the following periods: November 3, 2022, to November 22, 2022; January 19, 2023, to January 26, 2023; and March 29, 2023, to June 1, 2023. We therefore address only whether substantial evidence supports the court's denial of street time for the remaining disputed periods: December 21, 2022, to January 19, 2023; January 27, 2023, to March 28, 2023; and November 1, 2023, to May 29, 2024.

¶11 Hall testified that Freeman failed to report to probation and parole on December 21, 2022, and did not report again until January 19, 2023, and that she considered him “absconded” during this time. She said that Freeman provided nineteen positive UA samples between January 27 and March 28, 2023, and that he attended only one outpatient treatment session after receiving his chemical dependency evaluation. Freeman admitted that he also visited multiple casinos during this time. Though Hall said that Freeman was clean and in compliance for a few months after attending inpatient treatment, she testified, “I do not think there has been any substantial period of clean time since October of 2023. I know it has been in and out. He has been doing his aftercare with his [counselor], but I don't think there's been any significant length of time where he's been not using.” Hall's testimony is consistent with Freeman's own admission that he was only nineteen days clean as of the disposition hearing on May 29, 2024. Though Freeman presented evidence that he had been attending independent counseling and Alcoholics Anonymous, his probation conditions do not require these programs.

¶12 The District Court explained its reasoning for denying Freeman street time credit during these periods at the disposition hearing:

[T]he recommendation from the PO adequately addresses the fact that you are still struggling with your use. And by your own statement there, you used [twenty] days ago if you're [nineteen] days clean. And I'm not condemning you for that.

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[W]hile you may have been doing counseling and the AA steps, that's not a part of your judgment. But more importantly, that's not necessarily what the Department of Corrections and its programming believes you need to do to get over the hump as far as your use. And so while I commend you for the steps that you are taking, you're still ignoring the court requirements. And those court requirements take precedent.

The court said that Freeman produced no evidence to show that he was in compliance with his probation conditions after October 2023, and that it found Hall's testimony describing Freeman's noncompliance credible.

¶13 Hall's recollection of Freeman's ongoing substance use, Freeman's failure to attend the Department of Corrections's required treatment programming, and his inconsistent reporting to probation and parole provides substantial evidence for the District Court's conclusion that Freeman continually violated his probation during the disputed periods. See Shewalter, ¶¶ 18-20. The court's findings underlying its denial of street time for these periods are not clearly erroneous, and the District Court explained its reasoning for denying Freeman credit for the relevant periods as required by § 46-18-203(7)(b), MCA. Per the State's concession, however, the record does not support the court's denial of street time credit for November 3, 2022, to November 22, 2022; January 19, 2023, to January 26, 2023; and March 29, 2023, to June 1, 2023. We therefore remand to the District Court with instruction to add ninety-three days of street time credit to Freeman's sentence.

¶14 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review. Except for the ninety-three additional days that the State concedes Freeman should be credited, the District Court's interpretation and application of the law are correct, and its findings are not clearly erroneous. We remand for the court to amend its judgment.

FOOTNOTES

1.   Though Freeman initially claimed ineffective assistance of counsel in his opening brief, he withdrew this argument in his reply brief.

BETH BAKER

We Concur: CORY J. SWANSON JAMES JEREMIAH SHEA INGRID GUSTAFSON JIM RICE