NO. 87-248
I N THE SUPREME COURT O F THE S T A T E O F MONTANA
1988
STATE O F MONTANA,
P l a i n t i f f and R e s p o n d e n t ,
-vs-
TRACY DOUGLAS S M I T H ,
D e f e n d a n t and A p p e l l a n t .
A P P E A L FROM: D i s t r i c t C o u r t of t h e E i g h t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of C a s c a d e ,
T h e H o n o r a b l e T h o m a s M c K i t t r i c k , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
L e o n a r d J. H a x b y , B u t t e , M o n t a n a
For R e s p o n d e n t :
Hon. M i k e G r e e l y , Attorney General, Helena, Montana
Barbara Claassen, Asst. Atty. General, Helena
P a t r i c k L. Paul, County A t t o r n e y , G r e a t Falls, Montana
Stephen H a g e r m a n , D e p u t y C o u n t y A t t y . , G r e a t Falls
S u b m i t t e d on B r i e f s : March 24, 1988
Decided: May 26, 1988
Filed :
MAY 2 6 1988
Clerk
Mr. Justice R. C. McDonough delivered the Opinion of the
Court.
This is an appeal from a criminal conviction. A jury in
the Eighth Judicial District found appellant Tracy Douglas
Smith guilty of aggravated kidnapping. Smith was sentenced
to 25 years in prison for the offense, with 10 years
suspended. Smith also received an additional sentence of 10
years for being a persistent felony offender, and 5 years for
the commission of a crime with a weapon. Smith appeals the
conviction and the sentencing. We affirm as to issues 1,2,3,
and 5, and reverse issue 4 in regard to Smith's enhanced
sentence for being a persistent felony offender. The other
subissues in issue 4 are affirmed.
Smith raises the following issues for review:
(1) Did the Court err in denying Smith's motion to
dismiss for violation of Smith's right to a speedy trial?
(2) Did ineffective assistance of counsel result in the
denial of Smith's constitutional right to counsel?
(3) Did prosecutorial misconduct result in abridgment
or denial of Smith's constitutional rights?
(4) Did the Court err by failing to follow substanti-ve
and procedural requirements in sentencing Smith?
(5) Did the Court err by failing to properly instruct
the jury?
The facts briefly are as follows: On July 5, 1986,
Smith and three other individuals; Fred Gierke, Leland
LaPier, and Kim Stevens, rode in LaPier's car to a Great
Falls residence where Gierke hoped to find Vivian Tulickas.
When they arrived they observed Tulickas and Tulickas's
boyfriend, Steven Frey, entering Frey's car. Smith and
L a P i e r approached Frey's car and LaPier ordered Tulickas out
of the car while Smith restrained Frey. Tulickas, LaPier,
and Smith then returned to LaPier's car where Gierke sat
waiting to speak to Tulickas. After Tulickas was positioned
in the back seat with Gierke, Gierke began to slap Tulickas
and demand the return oE money he believed Tulickas had
stolen from him. Gierke then ordered LaPier to drive to a
field outside of town where he continued to beat Tulickas.
Smith participated in the assault by holding a gun and by
giving encouragement to Gierke to beat Tulickas more
severely. During the beating, Tulickas denied stealing
Gierke's money, but promised to give Gierke $100 and a bus
ticket she claimed to have at a residence in Great Falls. At
that point Gierke ceased assaulting Tulickas and agreed to
take her back to Great Falls to retrieve the money and the
ticket.
After Lapier's car had carried Tulickas from the scene
of the abduction, Frey called the police and reported the
license number on the car. When LaPier's car appeared in
Great Falls on its way to retrieve the money and the bus
ticket, police spotted and stopped the vehicle, freed
Tulickas, and arrested the other passengers. Smith ' s
participation in the abduction resulted in the aggravated
kidnapping conviction.
Issue I.
Smith claims that his right to a speedy trial was denied
due to delay on the part of the State. The State contends
that the delay from the date of arrest, July 6, 1986, to the
date of trial, November 17, 1986, is not sufficiently long to
trigger further speedy trial analysis. We agree with the
State.
The length of delay is the first of four factors to be
considered in analyzinq speedy trial claims. State v. Kerns
(Mont. 1986), 725 P.2d 1190, 1191, 43 St.Rep. 1632, 1635.
And unless the delay is "long enough to be presumptively
prejudicial, no further inquiry is required." Kerns, 725
P.2d at 1191. In this case, the delay of 134 days between
the arrest and the trial is not sufficiently long to trigger
further analysis, and we affirm on this issue.
Issue 11.
Smith claims that the ineffective representation
provided by his legal counsel violated the right to counsel
guarantees found in the United States Constitution, Sixth and
Fourteenth Amendments, and the Montana Constitution, Art. 11,
§ 24. Smith contends that the specific errors on the part of
his counsel were: failure to move for an order for a
psychiatric evaluation of Smith, failure to call favorable
witnesses, and failure to allow Smith to testify. The State
contends that Smith has failed to show that his counsel's
performance was deficient. We agree with the State.
To make a valid claim for ineffective assistance of
counsel, the defendant must show that his counsel made errors
so serious that counsel was not functioning as the counsel
guaranteed by the Sixth Amendment, and that the deficient
performance prejudiced the defense. State v. Matson (Mont.
1987), 736 P.2d 971, 977, 44 St.Rep. 874, 882. Furthermore,
"we will not allow unsupported allegations to brand counsel's
performance as deficient." Matson, 736 P.2d at 977. The
only evidence of ineffective assistance of counsel comes from
Smith's own allegations. The record, on the other hand,
reveals that Smith's counsel provided competent
representation. Thus, we find Smith's allegations to be
unfounded and we affirm on this issue.
ISSUE 111.
Smith contends that remarks made by the prosecutor in
the State's closing argument constituted prosecutorial
misconduct. The remarks were to the effect that men should
not physically assault women, and that the period of physical
restraint in an alleged kidnapping may be as short as 10 to
15 minutes or less. The State contends that no objection was
made to the remarks in the lower court, and thus no
appealable issue exists. Smith urges this Court to apply the
plain error rule. We find the plain error rule inapplicable,
and agree with the State that this is not an appealable
issue. See State v. Pease (Mont. 1986), 724 P.2d 153, 163,
43 St.Rep. 1417, 1430. Thus we affirm on this issue.
ISSUE IV.
Smith contends that the sentencing procedures were
deficient in several respects:
A. Smith contends that the court erred in adding 10
years to Smith's sentence for being a persistent felony
offender because the trial court's decision is based on
evidence improperly before the court. Specifically, Smith
contends that no proper foundation was laid for: admission of
the judgment documenting Smith's previous conviction;
admission of testimony on Smith's fingerprints as recorded in
the record from Smith's previous conviction; and admission of
a tape recording of a telephone conversation between Smith
and a Great Falls police officer. The recording documents a
call made by Smith to police wherein Smith complains of
police harassment.
The State responds that Smith's claim on this issue
fails because the rules of evidence do not apply to
sentencing, and because the Court relied on competent
evidence in sentencing Smith. We agree and affirm on this
subissue. See State v. Lamere (1983), 202 Mont. 313, 321-22,
658 P.2d 376, 380-81.
B. Smith contends that the trial court erroneously
relied on $ 46-18-501(2) (b), MCA, to find that Smith was a
persistent felony offender because over five years had passed
since the commission of the current offense and Smith's
previous felony. The State responds that probation from
Smith's previous suspended sentence constitutes commitment,
and. that the probation ended less than five years before the
commission of the current offense.
Section 46-18-501(2)(b), MCA, defines a defendant as a
persistent felony offender if the defendant was previouslv
convicted of a felony and less than five years have passed
since:
(b) the offender's release on parole or otherwise
from prison or other commitment imposed as a result
of the previous felony conviction.
Section 46-18-501 (2)( b ) , MCA, (emphasis added) .
The judgment for the previous conviction, entered on
December 20, 1979, sentenced Smith to 3 years in prison with
execution of the sentence suspended provided that during the
suspension Smith abide by the rules and regulations of the
Montana State Board of Pardons and that he not possess, use,
or sell dangerous drugs. In addition, the judgment provided
that Smith would submit his person, his residence, and his
vehicles to search and seizure at any time by probation
officers, police officers, or other lawful authorities
without a search warrant and without a prior requirement that
probable cause be shown, and that Smith obey all United
States, state, and municipal laws.
None of these probationary conditions constitute
"commitment" under § 46-18-501(2)(b), MCA. Commitment may be
defined as:
[Tlhe act of taking or sending to the prison,
mental health facility, or the like. A person is
committed when he is actually sentenced to
confinement by a court as contrasted with a
suspended sentence or probation.
Black's Law Dictionary 248 (5th ed. 1979). The distinction
between probation and confinement in defining commitment is
supported by other usage of the word "commitment" in the
code. For example, after revocation of a suspended sentence
the defendant is ordered "committed". Section 46-18-203,
MCA. And § 46-19-101, MCA, provides:
Commitment of defendent. Upon rendition of
judgment after pronouncement of sentence imposing
punishment of imprisonment or death, the court
shall commit the defendant to the custody of the
sheriff, who shall deliver the defendant to the
place of his confinement or execution.
Section 46-19-101, MCA. Thus, the plain meaning of the word
"commitment" reveals that the period of commitment begins
when the defendant is handed over to law enforcement
personnel for confinement, and our analysis need not proceed
further because the plain meaning of the word controls its
interpretation. State v. Hubbard (1982), 200 Mont. 106, 111,
649 P.2d 1331, 1333. However, our resolution of this issue
is also Suppori--?-l. 5 v the c i p p d r e i l t n u l r n r ) n ~ n f employing the
term "other commitment" for initiating the period of time
between convictions. That intent, as demonstrated by the
other event which initiates the five year period in this
subsection; release from prison, is to have the time start to
run when the habitual offender is once again free, if he or
she chooses, to victimize society. Thus, this subissue is
reversed, and the enhanced sentence of ten years received
under 5 46-18-501(2) (b), MCA, is hereby declared to be void
and we order it stricken. See Lewis v. State (1969), 153
Mont. 460, 463, 457 P.2d 765, 766; 24R C.J.S Criminal Law 5
1946 (1962).
C. Smith contends that the trial court erred by failing
to set out with particularity its findings in regard to
dangerous offender status. The State contends that the
District Court's sentence contains adequate findings. A
review of the sentence shows that the District Court found
the following facts in designating Smith a dangerous
offender:
1. The Defendant admits to using "lots of
cocaine" on a daily basis prior to his arrest.
2. The probation and parole officer found the
Defendant to have intense anger for any kind of
authority.
3. A long history of misdemeanor arrests.
4. The testimony of several witnesses that
the Defendant has threatened to harm them or their
families.
5. The commission of a serious crime while
still on parole.
We hold that these findings satisfy the mandate of
§ 46-18-404, MCA, and we affirm on this subissue.
D. Smith also contends that the sentence in open court
varied with the sentence document which incorporated the
dangerous offender findings. Thus, according to Smith, the
sentence violates Montana law. Smith fails to cite the law
viol-ated, but the contention apparently addresses the open
court sentencing requirements of S 46-18-102, MCA, which
states:
(1) The judgment shall be rendered in open
court.
(2) If the verdict or finding is not guilty,
judgment shall be rendered immediately and the
defendant shall be discharged from custody or from
the obligation of his bail bond.
(3) (a) If the verdict or finding is guilty,
sentence shall be pronounced and judgment rendered
within a reasonable time.
(b) When the sentence is pronounced, the
judge shall clearly state for the record his
reasons for imposing the sentence.
At the time of the sentence the District Court stated:
Now, the Court has already found you to be a
persistent felony offender. A jury of the citizens
of this state have found you guilty of aggravated
kidnapping. And the Court sat through the
testimony, and the Court finds that this was a
felony that was committed with a dangerous weapon,
a gun.
So it's the sentence of this Court on the
offense of aggravated kidnapping that you be
confined to the Montana State Penitentiary for a
period of 25 years. That ten of those years are
suspended.
That on the persistent felony offender charge,
that you be given an additional 10 years. That.
that time is to be consecutive to the time for the
aggravated kidnapping charge.
For the commission of the offense with a
dangerous weapon, the Court is going to add on an
additional five years. And that is to run
consecutive with the previous two sentences.
For purposes of parole eligibility, the Court
is declaring you a dangerous offender.
We refuse to reverse on this subissue because the reasons for
declaring Smith a dangerous offender are apparent in the
transcript of the sentencing hearing, and thus any failure to
articulate them in pronouncing the sentence constitutes
harmless error. See State v. Hintz (Mont. 1984), 691 ~ . 2 d
814, 816, 41 St.Rep. 2172, 2176. Thus, except as to subissue
B, this issue is affirmed.
#
ISSUE V.
Smith's final argument is that the trial court erred by
giving the following instruction:
If you are satisfied that the crime charged in
the information was committed by someone, then you
may take into consideration any testimony showing,
or tending to show, intimidation by the defendant,
Tracy Douglas Smith. This testimony may be
considered by the jury as circumstance tending to
prove a consciousness of guilt, but is not
sufficient of itself to prove guilt. The weight to
be given such circumstance and significance if any,
to be attached to it, are matters for the jury to
determine.
Smith contends that the above instruction is an improper
adaptation of the instruction used when a defendant's flight
is relevant to the defendant's consciousness of guilt. Smith
argues that instructing the jury that it may consider
intimidation as evidence of consciousness of guilt is highly
prejudicial. Smith fails to explain why the instruction was
highly prejudicial.
The State points out that the instruction is contained
in the Montana Criminal Jury Instructions, and that the
comment to the instruction states that it is appropriate
where evidence of intimidation exists. Evidence of
intimidation on the part of Smith existed in this case.
Thus, Smith's argument here lacks merit. We affirm on all
issues except as set out in regard to issue 4.
@
6 Justice