No. 79-57
I N T H E SUPREME COURT O F T H E S T A T E O F MONTANA
1980
I N THE MATTER O F D A N I E L McFADDEN
O R I G I N A L PROCEEDING:
C o u n s e l of R e c o r d :
For P e t i t i o n e r :
D a n i e l McFadden, Pro S e , D e e r L o d g e , M o n t a n a
For R e s p o n d e n t :
Hon, Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
John G. W i n s t o n , C o u n t y A t t o r n e y , B u t t e , M o n t a n a
Submitted: November 29, 1979
Decided: && 1 6 -1980
Filed: JkIi 1 6 1983
Mr. Justice Daniel J. Shea delivered the Opinion of the Court.
This is an original petition for post-conviction
relief by Daniel McFadden, an inmate of the Montana State
Prison. Petitioner contends that he is entitled to design-
ation as a "nondangerous offender for purposes of parole
eligibility" under the provisions of section 46-18-404(1),
MCA. Designation as a nondangerous offender enables a prisoner
to be eligible for parole after he has served one-quarter of
his sentence.
On September 14, 1978, petitioner entered a guilty plea
on a felony charge of theft; and the Silver Bow County District
Court ordered an evaluation and a presentence investigation.
The diagnostic and evaluation final report recommended that
petitioner be given a ten year sentence with nine years suspended.
The adult parole and probation officer conducted a presentence
investigation and recommended a ten year sentence with nine
years suspended. The reports did not recommend that petitioner
be designated a dangerous offender. On November 9, 1978, the
District Court sentenced petitioner to ten years in prison
with five years suspended, and designated him as a dangerous
offender.
Petitioner contends that he is entitled to designation
as a nondangerous offender under section 46-18-404(1), MCA.
Although this statute was amended by the legislature in 1979,
the instant case must be considered in accordance with the
statutory provisions in effect at the time of sentencing in
November 1978. Section 46-18-404(1)(a) is not applicable,
since during the five years preceding the commission of his
offense, petitioner had not been convicted of, or incarcerated
for, an offense for which a sentence in excess of one year
could have been imposed. Apparently in accordance with section
46-18-404(1)(b) the District Court determined that petitioner
-2-
represented a substantial danger to other persons or society,
and designated him a dangerous offender.
'Jnder section 46-18-404(1)(b), MCA, an individual may be
designated a dangerous offender, if, in the discretion of the
sentencing court, he is determined to represent a substantial
danger to other persons or society; however, more than a mere
recital of the statutory language is required. The sentencing
court must articulate its reasons underlying its determination.
The record reveals that the District Court never found that
petitioner represented a substantial danger to other persons
or society; but rather concluded that petitioner was not
rehabilitatable because he had not been truthful with the court.
Based upon that conclusion, the District Court designated
petitioner a dangerous offender. The designation of petitioner
as a dangerous offender is not supported,by substantial credible
evidence.
The District Court erred in designating petitioner as a
dangerous offender; therefore, the cause is remanded with
directions to designate the petitioner as a nondangerous
offender for purposes of parole
We Concur: