No. 90-489
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
FRANK BELMAREZ ,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Arthur J. Thompson; Thompson & Sessions, Billings,
Montana.
For Respondent:
Hon. Marc Racicot, Attorney General, State of
Montana, Helena, Montana; Elizabeth Griffing,
Assistant Attorney General, Helena, Montana;
Dennis Paxinos, Yellowstone County Attorney,
Billings, Montana; Brent Brooks, Deputy Yellowstone
County Attorney, Billings, Montana.
MAY 3 8 1991 Submitted on briefs: April 11, 1991
Decided: May 30, 1991
CLERK
L SmifIz
d OF SUPREME COU
STATE OF MONTANA
Justice R. C. McDonough delivered the Opinion of the Court.
The defendant Frank Belmarez appeals the judgment and
commitment of the Montana Thirteenth Judicial District Court,
Yellowstone County, sentencing him to forty-five years in the
Montana State Prison and designating him a dangerous offender. The
sole issue to be determined is whether the District Court erred in
designating the defendant a dangerous offender. We remand the case
for further findings.
The defendant was charged by information for stabbing to death
his wife, Vicki Espinoza, and for assaulting his sister, Jolene
Belmarez, with the same weapon. At the sentencing hearing the
defendant described the fight. He had left his wife a few days
before the attack. The day of the incident, he returned to her
apartment to get some clothes and tried to talk with his children.
Vicki became angry and asked him to leave. He left and went to a
bar. She followed him to the bar, arriving a few minutes later.
The couple went outside the bar and began to argue and then to
wrestle. Jolene intervened to help Vicki. At some point in the
altercation the defendant stabbed both Vicki and Jolene.
On May 10, 1990 the defendant plead guilty to mitigated
deliberate homicide, aggravated assault, and escape. On June 27,
1990, the District Court sentenced Belmarez on Count I to a term
of thirty-five years for mitigated deliberate homicide, plus an
additional ten years for the use of a weapon; on Count 11, the
aggravated assault, to a term of fifteen years, plus an additional
ten years for the use of a weapon; and on Count 111, the escape,
2
to a term of ten years, said sentences to run concurrently with
each other. The District Court also found that the defendant did
not qualify to be treated as a nondangerous offender pursuant to
5 46-18-404(3), MCA, and ordered that the defendant be designated
a dangerous offender.
The sentencing court's designation of an offender as either
nondangerous or dangerous is an important factor in determining
parole eligibility. See 5 46-23-201(2), MCA. Designation as a
nondangerous offender is governed by 5 46-18-404(3). The statute
provides in pertinent part:
(1) . .. the sentencing court shall designate an
offender a nondangerous 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, based on any
presentence report and the evidence presented at the
trial and the sentencing hearing, that the offender does
not represent a substantial danser to other persons or
societv.
...
( 3 ) If the court determines that an offender is a
dangerous offender, it shall make that determination a
part of the sentence imposed and shall state the
determination in the iudment. ... [I]f the sentence
and judgment do not contain a determination that the
offender is a dangerous offender, the offender is
considered to have been designated as a nondangerous
offender for purposes of eligibility for parole.
Section 46-18-404, MCA. (Emphasis added.)
In its Judgment and Commitment, the District Court gave the
following reasons for the sentence imposed:
1. The Court has considered the contents of the
presentence report.
2. The Court has considered the plea-agreement entered
into.
3. The Court has considered the fact that Defendant
has no prior felony convictions.
4. The Court feels that the defendant is sincerely
remorseful for this crime.
5. The Court has taken into consideration the victims
of this matter.
6. The Court feels that the defendant is a danger to
society.
At the sentencing hearing, the District Court also discussed its
determination that the defendant be designated as dangerous:
You are hereby designated as a dangerous offender
because I believe you to be a danger. I recognize that
you have no prior record, but in taking into account both
the mother-in-law and the sister's statements I do make
that designation.
According to this statement, the apparent bases for the designation
were the statements of the defendant's mother-in-law and sister
in letters included in the presentence report. The court noted the
content of these letters:
Your sister says that she feels bad about what happened.
"1 feel like it is mostly my fault. It hurts me to know
my sister-in-law will never come back, and it also hurts
to know that my brother will be in jail a long time. At
first I was angry with him, but I got to accept what
happened and that it wasn't my fault. I still love my
brother though. 'I
... Now the Espinoza letter is much different.
She was the mother of Vicki, and she worries, fears, and
she doesn't express any sorrow for you.
Under § 46-18-404, 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." State v. Ford (1985), 218
Mont. 215, 221, 707 P.2d 16, 20; Matter of McFadden (1980), 185
Mont. 220, 222, 605 P.2d 599, 600; see also State v. Camitsch
(1981), 192 Mont. 124, 140, 626 P.2d 1250, 1258-9. Our review of
the record here indicates that the District Court failed to
articulate its reasons forthe dangerous offender designation. The
court set forth its reasons for the sentence imposed in its
Judgment and Commitment Order and then concluded that "[tlhe Court
feels that the defendant is a danger to society." Among the
reasons for the sentence, the court did state that it "has taken
into consideration the victims of this matter." This alone is
insufficient to conclude that the defendant is a danger to society.
Absent an articulated reason forthe designation, the reasons given
by the District Court as a whole might as easily support a
nondangerous designation.
The defendant argues that there is no substantial credible
evidence in the record to support a dangerous offender designation
and that this Court should reverse and order that the defendant be
designated a nondangerous offender. We disagree. Where the record
below reveals substantial evidence to support a sentencing court's
determination that an offender is dangerous, this Court has
remanded the cause to the district judge for findings to support
such a conclusion. Ford, 707 P.2d at 20; Camitsch, 626 P.2d at
1259. Without such findings, this Court cannot determine if there
is an abuse of discretion. Ford, 707 P.2d at 20. Here, the letter
from the victim's mother in the presentence report indicates that
she is afraid the defendant will harm her family or the defendant Is
and victim's children:
If Frank should go free, I know we will never feel
safe again. We will be worrying if he will try and get
one of us and take the kids away, to do harm. We fear
for the safety of our lives and the safety of the kids.
Also, this Court has held that the serious and vicious nature of
a crime may be sufficient reason for designating a person a
dangerous offender. See, e.g, State v. Mazurkiewicz (Mont. 1990),
799 P.2d 1066, 1069, 47 St.Rep. 1962, 1965-6; State v. Bell (1987),
225 Mont. 83, 95, 731 P.2d 336, 343-4. Thus, while there is
substantial evidence on the record in this case, because the court
failed to articulate its reasons in the judgment, we cannot
determine whether the District Court abused its discretion in
designating the defendant a dangerous offender. See Ford, 707 P.2d
at 20. Accordingly, we remand this case to the District Court for
further proceedings consistent with this opinion.
REMANDED f o r f u r t h e r p r o c e e d i n g s . 1
We Concur: