No. 14682
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
DALE METZ,
Defendant and Appellant.
Appeal from: District Court of the Eleventh Judicial District,
Honorable Robert C. Sykes, Judge presiding.
Counsel of Record:
For Appellant:
Daley and Sherlock, Kalispell, Montana
Patrick Sherlock argued, Kalispell, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Chris Tweeten, Assistant Attorney General, argued,
Helena, Montana
Ted Lympus, County Attorney, Kalispell, Montana
Submitted: September 12, 1979
Decided : BEC 1 9 1979
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
Defendant appeals the judgment and sentence of the
Flathead County District Court which found the defendant guilty
of the crime of sexual intercourse without consent, and sen-
tenced him to 100 years in prison.
In the early morning hours of September 24, 1978, defen-
dant observed a young girl leaving a Circle K store in the vicinity
of LaSalle, Montana. He followed the girl's car down a gravel
road north of town. The girl, a 17 year old Kalispell high school
student, stopped her car when she saw the blinking headlights of
defendant's car. Defendant approached the victim's stopped car,
told her that she had been given the incorrect change at Circle K,
and that she could use the C.B. radio in his car to call the Circle
K. The victim walked with defendant to his car where defendant
pulled her into his car. He drove further down the road and with
a pocket knife held to her neck forced the girl out of his car. A
struggle ensued in which the girl was cut on the finger and pushed
into a ditch where defendant had intercourse with her. Before
driving away, defendant told the victim that he would kill her
if she left the scene. Later the victim arrived home and informed
her parents of the incident.
On September 25, 1978, the State filed an information
charging defendant with aggravated assault and sexual intercourse
without consent. Defendant received notice on October 17, 1978,
that the State intended to seek an increased penalty under the
persistent felony statute, section 46-18-503, MCA. At his arraign-
ment, defendant plead guilty to the charge of sexual intercourse
without consent and the State dropped the charge of aggravated
assault.
On December 13, 1978, the court held hearings to deter-
mine whether defendant was a persistent felony offender and to
consider aggravating and mitigating circumstances prior to
sentencing. At the conclusion of the hearings, the court found
that defendant was a persistent felony offender and that there
were no mitigating circumstances, and sentenced defendant to 100
years in prison.
In this appeal, defendant contends: (1) the trial court
erred in admitting a certificate of prior conviction without proof
that defendant was the person named in the certificate; (2) the
evidence did not support the trial court's conclusion that the
facts surrounding this crime indicated the absence of any factors
in mitigation of the sentence; (3) a one-hundred year prison term
under the circumstances of this case is cruel and unusual punish-
ment.
We hold that defendant, by failing to make a specific ob-
jection, waived his right to assert that the State's certificate
of prior conviction is not competent evidence. Defendant was
informed well in advance of the time he entered his guilty plea
that he would be tried as a persistent felony offender. At the
hearing to determine whether defendant was a persistent felony
offender, the defendant had an opportunity to object to the State's
lack of identification but he failed to do so.
When defendant has ample notice and a fair opportunity to
raise a specific objection to the State's failure to identify him
as the person named in the certificate of prior conviction, he
cannot make that assertion for the first time on appeal. See
State v. Campbell (1972), 160 Mont. 111, 500 P.2d 801.
Defendant's next assertion of error is that the trial
court failed to give proper consideration to factors in mitigation
of his sentence. Defendant maintains that his criminal tendencies
are the result of drinking and sexual problems which could be
successfully treated with psychological therapy. He believes that
if the trial court gave due consideration to his psychological
abnormality, it would have assigned him to a mental treatment
center or at least, would have lessened his sentence.
We disagree. The trial court held a hearing to determine
if aggravating or mitigating factors were present. See section
46-18-223(1), MCA. It found that none of the mitigating circum-
stances stated in section 46-18-222, MCA, applied to the present
case. The court's findings of fact indicate that it considered
defendant's drinking and sexual problems but concluded that these
conditions did not excuse defendant from accountability for his
acts.
The evidence presented at the hearing and in the pre-
sentence investigation report supports the trial court's conclu-
sion. Defendant has a long criminal record including at least
one other conviction for a sexual crime. He has been diagnosed
as a sexual sadist with a chronic drinking problem. Previous
efforts to treat these conditions at the Winnebago Mental Health
Institute, Winnebago, Wisconsin, were unsuccessful largely because
defendant did not cooperate with the staff and eventually escaped
from the institution. The trial court did not abuse its discretion
when it concluded that there were no factors in mitigation of the
sentence. See State v. Karathanos (1972), 158 Mont. 461, 469,
493 P.2d 326; State v. Brooks (1967), 150 Mont. 399, 412, 436 P.2d
91.
The final issue presented in this appeal is whether a 100
year jail term under the facts of this case is so excessive that
it constitutes cruel and unusual punishment.
Defendant's sentence is within the maximum allowable by
the persistent felony offender statute. Section 46-18-502(1),
MCA. As a general rule, sentences within the maximum statutory
limits do not violate the Eighth Amendment. Matter of Jones (1978),
Mont. , 578 P.2d 1150, 35 St-Rep. 469; State v. Karathanos
(1972), 158 Mont. 461, 493 P.2d 326. Defendant must establish
that his sentence is an exception to this rule. State v. Kirk-
land (1979), .
Mont ' -P.2d , 36 St.Rep. 1963, and
cases cited therein. The evidence presented here does not
establish that the length of the sentence was unconstitutional.
The court's 100 year sentence may in defendant's eyes
seem inequitable, but it is not so shocking or oppressive as
to be cruel and unusual punishment. Challenges to the equitabil-
ity of a sentence as opposed to its legality are properly directed
to the Sentence Review Board. See section 46-18-901 et seq., MCA;
State v. Simtob (1969), 154 Mont. 286, 288, 462 P.2d 873.
Affirmed.
..................................
Chief Justice
Mr. Justice Daniel J. Shea dissents and will file a dissenting
opinion later.