No. 83-402
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
ARLENE MAE BRUNS,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable James B. Wheelis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Anthony F. Keast argued, Missoula, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Kimberly A. Kradolfer argued, Asst.2,Atty. General
Robert L. Deschamps, County Attorney: Missoula,
Itontana
Submitted: September 12, 1984
Decided: November 20, 1984
Clerk
Mr. Justice Fred J. WeSer delivered the Opinion of the Court:
Defendant Arlene M. Bruns was convicted in a non.jury
trial in Nissoula County District Court on three counts of
driving under the influence (DUI) and one count of driving
while her license was suspended. She was sentenced to 1 year
in the county jail with 2 months suspended on each DUI count
and 30 days for driving while her license was suspended. The
court ordered all sentences to be served concurrently.
Defendant appeals the judgment. We affirm.
Defend-ant raises the following issues:
1. Is defendant's 10-month county jail sentence cruel
and unusual punishment or a denial of equal protection be-
cause it is not proportional to the offenses committed com-
pared with sentences served in the state prison?
2. Whether requiring time to be served in the county
jail is unconstitutional because conditions at the jail
constitute cruel and unusual punishment?
3. Is the mandatory minimum jail sentence for DUI
convictions invalid as a violation of the separatibn of
powers between the judicial and legislative branches?
4. Is the DUI statute unconstitutionally vague?
On October 25, 1982 defendant was driving northbound on
Highway 93 south of Mhssoula at Carlton Creek Road when she
crossed the left turn lane and the center line and struck the
front of a vehicle. The car which was struck had stopped
part way into the intersection while several horses were
being driven across the highway from the Carlton Creek Road.
Southbound traffic had slowed for the horses to cross, and
visibility was good from both directions. Defendant ex-
plained at trial that she had been drinking and had become
"disoriented" and "wasn't in control." Defendant was arrest-
ed for DUI.
On December 1, 1982 deputy sheriff Steven Peterson
stopped defendant f o r speeding. She was d r i v i n g 6 8 m.p.h. in
a. 45 m.p.h. s p e e d zone. The o f f i c e r s m e l l e d a l c o h o l on h e r
breath, n o t e d h e r s l u r r e d and c o n f u s e d s p e e c h , and a r r e s t e d
her f o r d r i v i n g under t h e i n f l u e n c e and d r i v i n g w h i l e h e r
l i c e n s e was suspended. The b r e a t h a l y z e r t e s t t a k e n a t t h e
t h a t time i n d i c a t e d a blood-alcohol l e v e l of 0.129 percent.
On J a n u a r y 1 0 , 1983 d e f e n d a n t was apprehended n e a r t h e
Bonner e x i t a f t e r s h e had d r i v e n 1 4 m i l e s e a s t b o u n d i n t h e
westbound l a n e o f I n t e r s t a t e 9 0 . O f f i c e r J e r r y Rogers o f t h e
Montana Highway P a t r o l d e t e c t e d a s t r o n g o d o r o f a l c o h o l and
had t o a s s i s t d e f e n d a n t t o keep h e r from f a l l i n g . Defendant
was a r r e s t e d f o r D U I .
Defendant was charged with four separate offenses:
three counts of d r i v i n g under t h e i n f l u e n c e (DUI) and one
c o u n t o f d r i v i n g w h i l e h e r l i c e n s e was suspended. A l l of t h e
DUI c o u n t s were f i l e d i n D i s t r i c t C o u r t a s " h i g h misdemean-
o r s " b e c a u s e d e f e n d a n t had been c o n v i c t e d o f D U I t w i c e w i t h i n
t h e p r e v i o u s 5-year p e r i o d . The c h a r g e o f d r i v i n g w h i l e h e r
l i c e n s e was suspended was f i l e d w i t h them. The f o u r c h a r g e s
were c o n s o l i d a t e d f o r t r i a l and a n o n j u r y t r i a l was h e l d on
June 1 0 , 1983. Defendant was c o n v i c t e d on a l l f o u r c h a r g e s .
A f t e r o r d e r i n g , r e c e i v i n g and c o n s i d e r i n g a p r e s e n t e n c e
r e p o r t , t h e c o u r t conducted a s e n t e n c i n g hea.ring. The p r o s e -
c u t o r recommended one y e a r w i t h s i x months suspended on e a c h
DUI conviction, 30 days on the conviction driving while
l i c e n s e was suspended and i m p o s i t i o n o f c o n d i t i o n s d u r i n g t h e
suspension period. Defense c o u n s e l a r g u e d a g a i n s t i n c a r c e r -
ation and for alcoholism treatment. The defendant made a
s t a t e m e n t t o t h e c o u r t c l a i m i n g t o be aware o f h e r d r i n k i n g
problem, c l a i m i n g t o be on h e r way t o r e f o r m a t i o n , and i n -
forming t h e c o u r t s h e had s u c c e s s f u l l y completed a n a l c o h o l
treatment program at St. Patrick's Hospital in Missoula.
Based upon defendant's extensive record of driving under
the influence and her dangerousness, the District Court
imposed a stiffer sentence than recommended by the prosecu-
tor: one year in the Missoula County Jail with 2 months
suspended on each DUI count, 30 days on the charge of driving
while her license was suspended and various conditions of
suspension. The court ordered that the sentences run
concurrently.
3
Is defendant's 10-month county jail sentence cruel and
unusual punishment or a denial of equal protection because it
is not proportionate to the offenses committed compared with
sentences served in the state prison?
Defendant raises several arguments in challenge to the
length of her sentence. She first argues that her sentence
is greater than would actually be served by a state prison
inmate for a more serious offense because county jail inmates
are not entitled to statutory good time allowance or parole
eligibility as state prison inmates are. She contends that
her sentence is therefore unconstitutionally disproportionate
to the offenses committed. We disagree.
A sentence which falls within the maximum authorized by
statute is not cruel and unusual punishment. State v.
Karathanos (1972), 158 Mont. 461, 468-69, 493 P.2d 326, 330.
However, if the sentence is so greatly disproportionate to
the crime that it shocks the conscience and outrages the
moral sense of the community or of justice, it is nonetheless
cruel and unusual punishment. Matter of Jones (1978), 176
Mont. 412, 420, 578 P.2d 1150, 1154. Defendant has the
burden of proving her sentence is within the exception. J d . -
The nature of crimes committed by defendant is a weighty
factor in this analysis. The United States Supreme Court
recently expressed its outrage at the crime of drunk driving
and the "carnage caused by drunk drivers." South Dakota v.
Neville (1983), 459 U.S. 553, 558, 103 S.Ct. 916, 920, 74
L.Ed.2d. 748, 755; see also Burg v. Municipal Court (1983),
198 Cal.Rptr. 145, 146-47, 673 P.2d 732, 734. These courts
have recognized that drunk drivers have cut a wide swath of
death and destruction nationwide. We note that Montana has
also suffered the effects of this national tragedy.
The Defendant's driving history is also particularly
significant. Defendant has an extensive record of DUI con-
victions and license revocations or suspensions for refusal
to take a breath test. She has demonstrated that she is a
hazard to the people of Montana. This was a key factor in
the length of sentence imposed by the District Court. The
court listened to the testimony, considered the presentence
report, and considered defendant's claim that she had com-
pleted an alcohol treatment plan and was on her way to re-
form. The court obviously was not convinced that defendant
was no longer a danger to the public. The presentence report
showed that defendant had previously completed several alco-
hol treatment programs but nonetheless continued to drive
drunk. The court concluded that protection of the public
required incarceration of defendant.
The trial court is vested with wide discretion in fixing
punishment. Karathanos, 158 Mont. at 469, 493 P.2d at 330.
Further, " ' [p]ersistence in crime and failure of earlier
discipline effectively to deter or reform justify more dras-
tic treatment . . .. I II State v. Maldonado (1978), 176 Mont.
322, 330, 578 P.2d 296, 301, quoting Pennsylvania ex rel.
Sullivan v. Ashe (1937), 302 U.S. 51, 54-55, 58 S.Ct. 59, 61,
82 L.Ed. 43, 46. The District Court did not abuse its dis-
cretion in imposing a 10-month sentence, particularly in
light of the fact that the court could have imposed on defen-
dant a jail sentence of more than 3 years by requiring the
sentences to be served consecutively.
Under these circumstances, defendant's 10-month sentence
does not shock the conscience or outrage the moral sense of
the community or justice. The fact that defendant, as a
county jail inmate, is not entitled to good time or parole
does not alter this conclusion. It is within the province of
the legislature to distinguish between criminal offenses and
to establish punishments. See Gore v. United States (1958),
357 U.S. 386, 393, 78 S.Ct. 1280, 1285, 2 L.Ed.2d 1405,
1410-11. It is also within the legislature's province to
determine matters related to sentencing, such as application
of statutory good time and parole benefits.
We hold that defendant's 10-month jail sentence does not
shock the conscience or outrage the moral sense of the commu-
nity or justice, and does not constitute cruel and unusual
punishment.
Defendant also suggests that denial of good time and
parole eligibility to county jail inmates is a denial of
equal protection. We disagree.
The legislature is free to discriminate on a rational
basis in treatment of different classes of criminal offend-
ers, so long as such different treatment is not based upon
any impermissible classification such as race, sex or reli-
gion. See Maldonado, 176 Mont. at 328-29, 578 P.2d at 300;
McGinnis v. Royster (1973), 410 U.S. 263, 269-78, 93 S.Ct.
1055, 1059-63, 35 L.Ed.2d 282, 288-93. The good time and
parole eligibility rules have been devised to rationally
address the special problems of rehabilitation and management
of a large prison population. These benefits are not selec-
tively endowed on the basis of any impermissible classifica-
tion. Their denial to all DUI offenders, who are statutorily
required to serve their time in the county jail, section
61-8-714, MCA, does not violate the equal protection clause.
In a related argument, defendant contends that section
53-24-303(2), MCA requires that she be given alcohol treat-
ment rather than criminal punishment. However, her argument
is clearly unfounded in light of Solberg v. County of
Yellowstone (Mont. 1983), 659 P.2d 290, 40 St.Rep. 308.
Section 53-24-303(2), MCA provides for treatment of persons
incapacitated by alcohol. In Solberg this Court distin-
guished persons "whose only fault is an affinity for alcohol"
from those arrested for DUI. This Court stated that section
53-24-303(2), MCA is not intended to protect those who have
committed criminal acts. Solberg, 659 P.2d at 293, 40
St.Rep. at 312. While treatment of alcoholism is desirable,
it is not, as appellant argues, required instead of criminal
punishment for one convicted of DUI.
Defendant also argues in this regard that her sentence
violates the Montana Constitution in failing to provide for
her rehabilitation.
Montana's Constitution, art. 11, section 28, requires
laws for punishment of crime to be founded on the principles
of prevention and reformation. Defendant's sentence furthers
the prevention principle through incarceration -- defendant
is prevented from drunk driving during the 10 months of her
incarceration and presumably discouraged from further drunk
driving by the prospect of more incarceration if she repeats
the offense. Appellant's sentence addresses the reformation
principle through ordering her to attend counseling as re-
quired by the probation office, ordering her to abstain from
the use of alcohol, and providing avoidance of further incar-
ceration as an incentive to reform. This constitutional
requirement has been satisfied here.
Defendant has shown no abuse of discretion or
constitutional violation with respect to her 10-month county
jail sentence.
I1
Defendant raises 3 additional issues which we decline to
address for the following reasons.
Defendant argues that imprisonment in the Missoula
County Jail is cruel and unusual punishment because of the
conditions allegedly existing there. This issue was not
raised in the District Court. This Court will not review
matters raised for the first time on appeal. State v.
Trangsrud (Mont. 1982), 651 P.2d 37, 40, 39 St.Rep. 1765,
1768. Further, the record contains absolutely no evidence
regarding conditions existing at the Missoula County Jail.
"Appeals can only be taken on the record made, not on the
record which should have been made." State v. Totterdell
(1959), 135 Mont. 56, 61, 336 P. 2d 696, 699. In the absence
of any record regarding conditions at the Missoula County
Jail, we will not rule on whether confinement therein consti-
tutes cruel and unusual punishment.
Defendant argues that the mandatory minimum jail sen-
tence for DUI convictions is invalid as a violation of the
separation of powers between the judicial and ,-egislative
branches. However, this statutory provision was not applied
to defendant, whose sentence far exceeds the mandatory mini-
mum. She therefore lacks standing to challenge this provi-
sion. We have previously declined to address alleged
constitutional violations where the statute complained of was
not applied to the complainant. In State v. Goodwin (Mont.
1984), 679 P.2d 231, 41 St.Rep. 508, this Court declined to
address two alleged constitutional errors because the appel-
lant was not subjected to the errors he complained of. One
of the errors alleged by Goodwin concerned exceptions to
mandatory minimum sentences. 679 P.2d at 235, 41 St.Rep. at
513. Similarly, defendant here has not been affected by the
constitutional infirmity she alleges and we will not address
this issue.
Finally, defendant contends that the DUI statute is
unconstitutionally vague because the presumption of intoxica-
tion at 0.10% blood-alcohol level fails to provide an accept-
able means of knowing when drinking and driving becomes
criminal.
The State correctly notes that defendant did not raise
this issue at the trial court level. This Court will not
review a matter raised for the first time on appeal.
Tranqsrud, supra. Further, a review of the transcript shows
that the State did not rely upon blood-alcohol level to
convict defendant. A breath test was taken in only one of
the three DUI arrests at issue. In all three cases, the
defendant's behavior, breath odor and other characteristics
of intoxication were proven at trial. Defendant herself
testified that when she was arrested for the DUI charge where
a breath test was taken, she had been drinking and was dis-
oriented. Thus, the statute complained of was not applied to
defendant and this Court will not address this issue.
Goodwin, supra.
The District Court's judgment is affirmed.
We concur:
"!/.@&
Chief Justice
4 g