No. 88-034
IN THE SUPREME COIJRT OF THE STATE OF MONTANA
1989
THE STATE OF MONTAMA,
Plaintiff and Respondent,
JOSEPH RUBEN RUCKMAN,
a/k/a JOSHUA BUCKMAN,
Defendant and Appellant.
APPEAL FROM: The District Court of the Eighth Judicial. District,
In and for the County of Cascade
The Honorable John M. McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
E. June Lord, Great Falls, Montana
For Respondent:
Honorable Marc Racicot, Attorney General, Helena, Montana
George Schunk, Assistant Attorney General, Helena
P a t r g k L . Paul, Cascade County Attorney, Great Falls, Montana
S t e p 3 n E. Hagerman, Deputy Cascade County Attorney, Great Falls
0
N ,A; k l J
Submitted on Briefs: December 9, 1988
Decided:
. . February 1, 1989
c
- . I
.--
p-2
Mr. Justice William E. Hunt, Sr. delivered the Opinion of the
Court.
In the Eighth Judicial District Court, Cascade County,
defendant Joseph Ruben Buckman pleaded guilty to one count of
deceptive practices, a felony. He received a 10-year
sentence in the Montana State Prison and was designated a
dangerous offender for purposes of parole eligibility. From
the part of the sentence designating him a dangerous
offender, Buckman appeals. We affirm.
Two issues are presented for our consideration.
1) Did the District Court abuse its discretion by
designating Buckman a dangerous offender for purposes of
parole eligibility?
2) Did the District Court violate the terms of the plea
agreement by designating Buckman a danqerous offender?
During the night of July 2 or early morning of July 3,
1987, a car owned by Milton J. Merrick was broken into and
Merrick's wallet, containing several credit cards, was
stolen. On July 3, 1987, Joseph Buckman unsuccessfully
attempted to use Merrick's VISA card to purchase beer and
gasoline from two Great Falls area Circle K stores. Three
days later, Ruckman successfully purchased items from a
Sinclair gas station and a Payless Shoe Store by using
Merrick's Mastercard and forging his signature. On July 7,
1987, Buckman was apprehended in a stolen motor vehicle with
Merrick's wallet and credit cards in his possession.
Buckman was charged with one count of deceptive
practices, a felony, in violation of S 45-6-317 (1)(dl (i),
MCA, and one count of forgery, a felony, in violation of S
45-6-325 ( 1 ) (a), MCA. Pursuant to a plea bargain, the State
aareed to drop the forgery charge in exchange for Buckman's
plea of guilty to the charge of deceptive practices.
Although the State reserved the right to recommend
sentencing, it agreed not to pursue a designation of
persistent felony offender.
At sentencing, the State recommended that Ruckman
receive ten years, the maximum sentence allowed by law, and
that he be designated a dangerous offender for purposes of
parole eligibility. The Honorable John M. McCarvel accepted
this recommendation and sentenced Buckman accordingly.
Buckman appeals the designation of dangerous offender.
Ruckman first argues that the District Court abused its
discretion by designating him a dangerous offender. He
contends that a defendant convicted of a nonviolent property
crime does not represent a substantial danger to society and
cannot, therefore, he considered a dangerous offender.
A dangerous offender is not eligible for parole until he
has served one-half of his full sentence. A nondangerous
offender, in contrast, is eligible for parole after he has
served one-quarter of his full sentence. Section
46-23-201 (1)(a), MCA. The statute governing the designation
of an offender as dangerous or nondangerous is 5 46-18-404,
MCA, which reads as follows:
(1) The sentencing court shall designate an
offender a nondanqerous offender for purposes of
eligibility for parole under part 2 of chapter 23
if:
(a) during the 5 years preceding the commission of
the offense for which the offender is being
sentenced, the offender was neither convicted of
nor incarcerated for an offense committed in this
state or any other jurisdiction for which a
sentence to a term of imprisonment in excess of 1
year could have been imposed; and
(b) the court has determined, hased on any
presentence report and the evidence presented at
the trial and the sentencing hearing, that the
offender does not represent a substantial danger to
other persons or society.
(2) A conviction or incarceration may not be
considered under subsection (1)(a) if:
(a) the offender was less than 18 years of age at.
the time of the commission of the present offense;
or
(b) the offender has been pardoned for the
previous offense on the grounds of innocence or the
conviction for such offense has been set asid.e in a
postconviction hearing.
(3) If the court determines that an offender is
not eligible to be designated. as a nondangerous
offender, it shall make that determination a part
of the sentence imposed and shall state the
determination in the judgment. Whenever the
sentence and judgment do not contain such a
determination, the offender is considered to have
been designated as a nondangerous offender for
purposes of eligibility for parole.
Subsection (1) of this statute delineates a two-part
test. If the district court finds that the defendant was
neither convicted of nor incarcerated for a felony offense
within the five years preceding the crime for which he is
being sentenced and that the defendant does not represent a
substantial danger to society, the court must designate the
defendant nondangerous. However, if the defendant satisfies
only one prong of this two-part test, the district court, in
its discretion, may apply the dangerous offender label. -See
State v. Dahl (Mont. 1980), 620 P.2d 361, 365, 37 St.Rep.
1852, 1857.
When using its discretion to determine offender status,
the District Court "may consider persistence in criminal
conduct and failure of earlier discipline to deter or reform
the defendant." State v. Nichols (Mont. 1986), 7 2 0 P.2d
115?, 1163, 43 St.Rep. 1068, 1076. The District Court must
articulate the reasons for designating a defendant as
dangerous; "more than a mere recital of the statutory
language is required." In re McFadden (1980), 185 Mont. 220,
222, 605 P.2d 599, 600.
In the present case, the District Court did indeed
articulate the reasons for designating Buckman a dangerous
offender. The court stated:
The defendant, since he was 18 years old, has been
involved with the criminal law. In 1979, he was
given a three (3) year deferred sentence for auto
theft. In 1980, he was convicted, by a jury, of
Aggravated Assault and Aggravated Kidnapping,
felonies, and was given two ten (10) year terms
which ran concurrently and was designated a
Dangerous offender. He was released from the
Montana State Prison in February, 1987 and
committed the crime of Deceptive Practices, a
felony, by stealing and using stolen credit cards.
The defendant has demonstrated no evidence or
effort to rehabilitate himself and is addicted to
alcohol and drugs. His incarceration is necessary
for long term in-patient treatment for alcohol and
drugs and for the protection of the public.
Buckman had been released from prison only five months
prior to the commission of t-he crime leading to the present
conviction. Thus, even though the instant offense was of a
nonviolent nature, the District Court was not required by
statute to designate Buckman a nondangerous offender.
Furthermore, Buckman had been previously convicted of
aggravated assault and kidnapping for holding a gun to a
hostage's head. The District Court considered this prior
offense as well as Buckman's failure to rehabilitate himself
when it found that the dangerous offender status applied.
Under the circumstances, the District Court did not abuse its
discretion.
Buckman next argues that the District Court violated the
terms of the plea aqreement when it designated him a
dangerous offender. He apparently contends that because he
was not advised by the State of the possibility that it might
seek to have limitations placed on his parole eligibility, he
did not enter the agreement with an understanding of the
consequences of his guilty plea.
Buckman relies on State v. Cavanaugh (19831, 207 Mont.
237, 673 P.2d 482, a case very similar to his own, to support
his theory. In Cavanaugh, the State agreed to drop two
felony charges if the defendant pleaded guilty to two other
charges. At sentencing, the trial judge gave Cavanaugh
maximum penalties allowed by law and, in addition, ordered
that he was ineligible for parole or for participation in the
defender furlough program. We held that, as Cavanaugh was
never advised of the possibility that he might be ineligible
for parole, he did not enter into the agreement knowingly and
voluntarily. We stated:
[Dlefendant knew when he pled guilty that he could
be sentenced to a maximum of one-hundred years for
aggravated kidnapping and twenty years for
aggravated assault. He did not know that he might
be found ineligible for parole. A flat sentence of
one-hundred years is far different than the
sentence anticipated by a defendant who knows he
might be sentenced to one-hundred and twenty years,
but presumes that parole will be possible. Because
of the disparity between the anticipated and actual
sentence, the plea bargain into which defendant
thought he was entering was not the plea bargain
accepted by the trial judge.
Cavanaugh, 207 Mont. at 241, 673 P.2d at 484. We concluded
that a trial judge who accepts only a portion of a plea
agreement must allow the defendant the opportunity to
withdraw his guilty plea. Cavanaugh, 207 Mont. at 243, 673
P.2d at 485.
At the time of the Cavanaugh decision, the statute
governing plea agreements, S 46-12-204, MCA (1981), read as
(1) The defendant shall enter a plea of guilty or
not guilty to the indictment, information, or
complaint. If the defendant refuses to plead to
the indictment, information, or complaint, a plea
of not guilty must be entered.
(2) The court may refuse to accept a plea of
guilty and shall not accept the plea of guilty
without first determining that the plea is
voluntary with an understanding of the charge.
In 1985, the legislature amended the statute, adding
subsection ( 3 ) .
(3) (a) A plea bargain agreement is an agreement
between a defendant and a prosecutor that in
exchange for a particular plea the prosecutor will
recommend to the court a particular sentence. A
judge may not participate in the making of, and is
not bound by, a plea bargain agreement. If a judge
does not impose a sentence recommended by a
prosecutor pursuant to a plea bargain agreement,
the judge is not required to allow the defendant to
withdraw a plea of guilty.
(b) Before a judge accepts a plea of guilty, he
must advise the defendant:
(i) of all the pro~7isions of subsection (3)(a);
(ii) of the punishment as set forth by statute for
the crime charged;
(iii) that prior to entering a plea of quilty, the
defendant and his counsel should have carefully
reviewed Title 46, chapter 18, and considered the
most severe sentence that can be imposed for a
particular crime; and
(iv) that the judge may impose any sentence
allowed by law.
Section 46-12-204 (3), MCA. The express purpose of the
amendment was to overturn the Cavanaugh decision. Hearing on
HB 700 Before the House Com. on the Judiciary (Feh. 18, 1985)
49th Cong. 7.
The amendments make it clear that a plea bargain is an
agreement between the prosecutor and the accused only. The
district court is not bound by the agreement. If the court
chooses not to follow the prosecutor's recommendation
pursuant to the plea bargain, it is not required to allow the
defendant to withdraw his plea of guilty. Section
46-12-204 (3)(a), MCA.
The plea agreement in issue stipulated only that the
State reserved the right to recommend sentencing and that the
State would not seek to designate Buckman a persistent
offender. It made no reference to the fact that the State
might seek to limit Buckman's parole eligibility by
recommending that the court declare him a dangerous offender.
Buckman argues that the District Court, therefore, was
required to apprise him of the possibility that his parole
could be limited if the court chose to designate him as
dangerous.
Section 46-16-105(1) (b), MCA, requires the district
court to advise the defendant of the consequences of his
guilty plea and the maximum sentence which may be imposed.
Other statutes flesh out S 46-16-105(b), MCA, by outlining
specific items of which the defendant must be advised by the
court. They provide that the defendant must be informed that
the court is not bound by the plea agreement; that sentencing
is governed by Title 46, Chapter 18; that the defendant
should consider the most severe punishment allowed by law;
and that the judge may impose any sentence allowed by law.
Sections 46-12-202 and 46-12-204 (3)(b), MCA. These statutes
do not require the District Court to advise the defendant of
any possi.bility of limitations on his parole eligibility.
Ruckman testified at his change of plea hearing that he
understood that sentencing was solely in the discretion of
the District Court; that he could receive a maximum of 10
years for his crime; that he entered the plea voluntarily;
and that he was satisfied with counsel. Furthermore, as he
had been declared a dangerous offender for his previous
conviction, Buckman was aware of the fact that such
limitations on parole exist. We cannot say, under these
circumstances, that Buckman did not understand the
consequences of his plea. The District Court did not err by
failing to inform Buckman, before it accepted his guilty
plea, of the possibility that he could be designated a
dangerous offender.
We affirm the District Cour
We Boncur: