--- Am. Tribal Law ----, 2023 WL 8452393 (Colville C.A.), 16 CCAR 12, 8 CTCR 31
Colville Tribal Court of Appeals.
 
David PRIEST and Gary Lessor, Appellants,
v.
COLVILLE CONFEDERATED TRIBES, Appellee.
 
Case No. Case Nos. AP23-005 and AP23-006
|
Decided September 18, 2023

Dupris, CJ

 

FACTS

Appellant Lesser was sentenced on twelve (12) various counts under Trial Court case numbers CR-2019-42030 (42030) and CR-2022-45051 (45051) to a total of 2,345 days in jail with 1,962 days suspended on conditions, leaving a total of 1,255 days to be served.1 In 42030 the Trial Judge granted day-for-day credit to jail time for Appellant’s time at an in-patient treatment facility, with “[e]arly release for inpatient treatment (day for day credit and suspend remaining time upon graduation.)” In 45051 Appellant was given credit for 18 days served. The jail sentences in 42030 and 45051 were to run consecutively.

Appellant Priest pleaded guilty to two (2) counts of drug violations and was sentenced to two (2) consecutive terms of 360 days in jail, with none suspended. No fines were imposed. In September, 2022, Appellant Priest was remanded to federal custody to serve a jail term under a federal charge. At that time Appellant Priest had completed 55 days of his tribal sentence.

On April 25, 2023 the Trial Court denied Appellant Lesser’s motion to correct the time he had served on both sentences to reflect the time he had already served, and the time he spent in inpatient treatment. On the same date the Trial Court denied Appellant Priest’s motion to clarify his jail term sentence to reflect granting credit for the time he had already served.

The Trial Court found that both Appellants’ jail sentences were to start over from the initial incarceration without credit for any time served away from the tribal jail facility. The Tribal Judge deemed this policy to be “TLOA time.” The Trial Court stated “TLOA time restarts when there is a break in custody and the individual returns to [tribal custody] so long as the break in incarceration was not caused by the [tribal] Correction Facility.” The Trial Court used this reasoning in both Appellant Lesser and Appellant Priest’s cases. Neither orders of the Trial Court for these Appellants give any authority or reasoning for the creation of “TLOA time.”

Both Appellants filed timely appeals. Appellant Priest is pro se. Appellant Lesser is represented by Michael Humiston, Spokesperson. At the Initial Hearing on June 16, 2023 this Court joined the cases of both Appellants in that the issue was the same.

 

ISSUE

Does the imposition of “TLOA time” in excess of 360 days deprive defendants of due process and equal protections of the law?2

 

STANDARD OF REVIEW

The facts of these cases are not disputed. The question is one of law. We review de novo. CCT v. Naff, 2 CCAR 50, (1995).

 

DISCUSSION

Appellant Priest did not file a brief. He is pro se, so this does not impact our rulings herein. Appellee Colville Tribes, did not file a brief, with no reason given to this Court for why one was not filed. We will take this into account in our ruling. Appellant Lesser’s brief, albeit timely filed, does not specifically address the “TLOA time” issue. It addresses an issue we have addressed in past TLOA cases regarding whether a defendant can be sentenced longer than 360 days in a jail facility that does not comply with TLOA. In this sense it is non-responsive to the issue.

We are left with whether the Trial Court’s orders denying Appellants credit for time served under an artifice called “TLOA time” violates due process and equal protection rights of Appellants. Appellee’s lack of brief means we don’t have any arguments to support the Trial Court’s “TLOA time” reasoning for denying credit for time served.

We have already addressed whether a denial of credit for time served violates a defendant’s due process and equal protection rights. Circle v. CCT, 10 CCAR 47 (2011). In Circle the Trial Court denied credit for time served based on a finding that it was not allowed in domestic violence cases. We found that Circle was denied the equal protection of the law in that anyone else incarcerated on a charge not related to domestic violence was granted credit for time served. We instructed the Trial Court in Circle to use the State guidelines regarding credit for time served as found in R.C.W. 9.94A.505(6). The time to be credited has to be directly related to the charge for which the defendant is being held.

In this case Appellant Lesser was denied credit for time he spent in in-patient treatment, which was specifically granted in his Judgment and Sentence in case 42030, as well as credit for 18 days served in case 45051. Appellant Priest was denied credit for 55 days he had already served in his case. The days to be credited to both Appellants were directly related to their sentences.3

There is no need to reinvent the wheel; we have already addressed the issue of credit for time served. The creation of “TLOA time” to deny credit for time served is not supported by our law. The Tribes/Appellee has not given us any reason to recognize “TLOA time” as a method to ignore the time the Appellants have served towards their sentences.

Based on the foregoing, we hold the Trial Court erred as a matter of law in denying Appellants credit for the time they each served on their sentences, and hold the artifice of “TLOA time” created by the Trial Court is in violation of Appellants due process and equal protection rights. We REVERSE and REMAND to the Trial Court for actions consistent with this Order.

Done this _____ day of September, 2023.

All Citations
--- Am. Tribal Law ----, 2023 WL 8452393, 16 CCAR 12, 8 CTCR 31

Footnotes
1	Fines were also imposed, with part of them suspended. The fines are not challenged in this appeal.
2	Appellant Lesser re-framed the issue in his brief without permission of this Court. We will not address the issue as he has stated it.
3	The question of the length of Appellants’ sentence as to the inadequacy of the jail is not before us in this case. That is, whether the Trial Court may impose a sentence, or consecutive sentences longer that 360 days when the jail does not meet the TLOA standards.