No. 91-063
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
STATE OF MONTANA,
Plaintiff and Appellant, ~jc . B "1991
i
-vs-
DANIEL LIONEL WILLSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Richard J. Carstensen, Attorney at Law, Billings,
Montana.
For Respondent:
Marc Racicot, Attorney General, Helena, Montana;
Micheal S. Wellenstein, Assistant Attorney General,
Helena, Montana; Dennis Paxinos, County Attorney,
Billings, Montana; Charles Bradley, Deputy County
Attorney, Billings, Montana.
Submitted on briefs: August 29, 1991
Decided: October 8, 1991
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Daniel Lionel Willson (Willson) appeals from his sentences
imposed by the Thirteenth Judicial District, Yellowstone County,
for his convictions of criminal endangerment, criminal possession
of dangerous drugs, criminal possession of drug paraphernalia, and
escape. Willson further appeals his designation as a dangerous
offender. We remand for resentencing on the criminal possession
of dangerous drugs conviction and affirm on all other issues.
Willson presents the following issues:
1. Whether the ten-year sentence for criminal possession of
dangerous drugs was erroneous.
2. Whether the District Court's statement concerning
excessive previous convictions requires resentencing.
3. Whether the sentence designation as a dangerous offender
was erroneous.
4. Whether on remand for resentencing Willson should be
entitled to a different sentencing judge.
On February 7, 1990, Willson was charged by information with
one count of criminal endangerment, one count of criminal posses-
sion of dangerous drugs, and one count of criminal possession of
drug paraphernalia. These charges stemmed from a January 8, 1990
incident where Willson, in a motor vehicle, drove through downtown
Billings, Montana, at speeds of up to 100 miles an hour. In this
high-speed drive, Willson collided with two separate occupied motor
vehicles, destroyinq these vehicles and causing injuries.
Following this incident, police obtained Will.sonts consent to
search his clothing. In this search, police found a clear plastic
syringe and a white powder substance later identified as cocaine.
At his arraignment, Willson pled not guilty to all three
charges. The court ordered that he be remanded to the custody of
the Yellowstone County Sheriff.
On March 30, 1990, Willson escaped from the Yellowstone County
jail with six other inmates. Willson later turned himself in to
authorities, The State amended its information against Willson to
include one count of escape. Willson pled not guilty to the now
four charges against him-
On October 17, 1990, Willson changed his pleas of not guilty
to guilty under a plea agreement. The District Court ordered a
presentence investigation report. The presentence investigation
report recommended a "lengthy sentence" for Willson. On December
3, 1 9 9 0 , the District Court conducted a sentencing hearing. At the
sentencing hearing, Willson testified that he has suffered from a
drug problem for several years and was under the influence of crank
and cocaine at the time of the incident. Following a review of the
plea agreement, the presentence investigation report, and the
testimony presented at the sentencing hearing, the District Court
sentenced Willson to the following: ten years imprisonment with
three years suspended for criminal endangerment, and ten years
imprisonment with three years suspended for criminal possession of
dangerous drugs, these two sentences to run consecutively; six
months imprisonment for possession of drug paraphernalia, this
sentence to run concurrently to the above sentences; and five years
imprisonment with two years suspended for escape, this sentence to
run concurrently with the above sentences. The District Court also
designated Willson a dangerous offender for parole purposes. From
these sentences, Willson appeals.
1. Whether the ten-year sentence for criminal possession of
dangerous drugs was erroneous.
Willson admits that he is guilty of criminal possession of
dangerous drugs, a violation of § 45-9-102, MCA (1989). Willson,
however, argues that the District Court erred when it sentenced him
to ten years imprisonment with three years suspended for this
offense. We agree.
The sentencing statute for cocaine possession, 5 45-9-102(3),
MCA (1989), provides in pertinent part:
A person convicted of criminal possession of
an opiate, as defined in 50-32-101(19), shall
be imprisoned in the state prison for a term
of not less that 2 years or more t h a n 5 years,
The District Court's sentence of ten years imprisonment with three
years suspended exceeded the maximum sentence allowed under 5 45-
9-102 (3), MCA (1989). We therefore remand this case to the
District Court for resentencing of this offense.
2. Whether the District Court's statement concerning
excessive previous convictions requires resentencing.
Willson argues that during the sentencing hearing, the
District Court miscounted Willson's past felony offenses contained
in the presentence investigation report and relied on an incorrect
number of five past felony offenses when it sentenced Willson.
Willson argues that this Court should remand this case to the
District Court for resentencing based upon Willson's criminal
record of two past felony convictions prior to this case. Willson
further argues that the District Court failed to clearly state its
reasons for sentencing him. We disagree with Willson's arguments.
The record indicates that although the District Court
misinterpreted Willson's criminal record as contained in the
presentence investigation report, it nonetheless properly concluded
that Willson has five current felony convictions. The record
further indicates that the District Court did not rely solely on
these five current felony convictions in sentencing Willson.
This Court notes that the presentence investigation report
indicates that Willson currently has a total of five felony
convictions: 1. criminal endangerment on May 1, 1990; 2. criminal
possession of dangerous drugs on May 1, 1990; 3. escape on May 1,
1990; 4. criminal mischief on July 27, 1983; and 5. criminal sale
of dangerous drugs on June 28, 1983. Willson's May 25, 1983
conviction for criminal mischief is not considered as an offense
as it was a deferred sentence successfully completed. Additional-
ly, Willson's December 11, 1986 felony conviction for criminal
mischief is not considered as a separate offense because it was the
revocation of the June 27, 1983 criminal mischief offense.
The District Court, in relying on the presentence investiga-
tion report, incorrectly counted the criminal mischief offense
dated December 11, 1986, as a new felony conviction, when in fact,
it was the revocation of a June 27, 1983 criminal mischief offense
that the court had previously counted. Additionally, the District
Court incorrectly counted the criminal endangerment and criminal
possession of dangerous drugs offenses dated May 1, 1990, as one
felony instead of as two separate felonies. However, although the
court misinterpreted Willson's criminal record contained in the
presentence investigation report, it properly concluded that
Willson has a criminal record, which includes five felony convic-
tions. We hold that the ~istrict Court arrived at the right
conclusion by the wrong means, and as such, committed no error that
mandates resentencing in this instance.
Furthermore, the District Court did not commit error when it
relied in part on Willson's entire criminal record in sentencing
Willson. A district court is given "broad discretion to determine
the appropriate punishment for a conviction." State v. Carson
(1984), 208 Mont. 320, 322, 677 P.2d 587, 588. A district court,
however, must set forth its reasons for sentencing a defendant in
order for the sentence to be properly reviewed at a later time by
the Sentence Review Board or this Court. State v. Stumpf (1980),
187 Mont. 225, 226, 609 P.2d 298, 299.
Here, the District Court, in pronouncing Willson's sentence,
stated that its reasons behind Willson's sentence were Willson's
entire and extensive criminal record, as well as Willson's threat
to society. It is also noteworthy that Willson's sentence is
consistent with the presentence investigation report, which
recommended that willson be given a "lengthy sentence." We hold
that the District Court sufficiently explained its reasons for
Willson's sentence, and as such, committed no error in sentencing
Willson that mandates his resentencing other than as discussed in
the first issue of this opinion.
3. Whether the sentence designation as a dangerous offender
was erroneous.
Willson argues that the District Court erred when it desig-
nated him a dangerous offender for parole eligibility purposes.
He argues that this designation was erroneous because of the
District Court's miscounting of his felony convictions. We already
have held that the District Court committed no reversible error
when it misinterpreted Willson's criminal record yet arrived at the
correct number of Willson's current felony convictions.
Furthermore, the District Court did not find Willson a
dangerous offender because of a specific number of felony convic-
tions. Rather, the District Court considered the presentence
investigation report, which included Willson's entire criminal
record beginning in 1983 and more importantly, found that Willson
represented a substantial danger to society. Section 46-18-
404(l) (b), MCA (l989), provides that a defendant shall be desig-
nated a non-dangerous offender if Itthecourt has determined, based
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." Here, Willson's
own testimony and his criminal record reveal that he has suffered
from a serious drug problem for several years. In his current
offenses, Willson drove through downtown Billings at speeds up to
100 miles an hour while under the influence of crank and cocaine.
His actions resulted in property damage and injuries to innocent
people. The record indicates that Willson represents a substantial
danger to other persons and society. We therefore hold that the
District Court committed no error when it designated Willson a
dangerous offender for parole purposes.
4. Whether on remand for resentencing Willson should be
entitled to a different sentencing judge.
Willson argues that this Court should order a new district
court judge for resentencing of this case, or in the alternative,
allow him the right to move for substitution of the sentencing
judge.
Section 3-1-804(1)(g), MCA (1989), provides:
When a new trial is ordered by the district
court, each adverse party shall thereupon be
entitled to one motion for substitution of
judge in the manner provided herein. When on
appeal the judgment or order appealed from is
reversed or modified and the cause is remanded
to the district court for a new trial, or when
a summary judgment or judgment of dismissal is
reversed and the cause remanded, each adverse
party shall thereupon be entitled to one
motion for substitution of judge in the manner
provided herein. Such motion must be filed,
with the required filing fee in civil cases,
within twenty (20) days after a new trial has
been ordered by the district court or after
the remittitur from the Supreme Court has been
filed with the district court. No other riqht
of further substitution shall arise in cases
remanded by the supreme court. In criminal
cases, no further riqht of substitution shall
arise when the cause is remanded for resen-
tencinq.
(Emphasis added.)
In interpreting legislative intent of statutory language, this
Court first examines "the plain meaning of the words used. Dunphy
v. Anaconda Co. (1968), 151 Mont. 76, 80, 438 P.2d 660, 662
(citations omitted). Clearly, by the plain meaning of the words
used, 1 3-1-804(1)(g), MCA (1989), does not provide for substitu-
tion of a district court judge when a cause of action is remanded
for resentencing. We therefore hold that Willson is not entitled
to a new district court judge nor is he entitled to move for
substitution of a sentencing judge.
In conclusion, we remand this case for resentencing on the
possession of dangerous drugs conviction and affirm on all other
issues.
Chief Justice \
We concur:
October 8. 1991
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Richard J. Carstensen
Attorney at Law
P.O. Box 2093
Billings, MT 59103-2093
Hon. Marc Racicot, Attorney General
Micheal Wellenstein, Asst. Atty. Gen.
Justice Bldg.
Helena, MT 59620
Dennis Paxinos, County Attorney
Charles E. Bradley, Deputy
P.O. Box 35025
Billings, MT 59107-5025
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA