No. 92-046
IN THE SUPREME COURT OF THE STATE OF MONTANA
THE STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
DENNIS LEON VALCOURT,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Nicholas C. Jacques, Attorney at Law, Helena,
Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Kathy Seeley,
Assistant Attorney General, Helena, Montana
Mike McGrath, County Attorney, Carolyn Clemens,
Deputy County Attorney, Helena, Montana
Submitted on Briefs: July 2, 1992
Filed:
Clerk
chief Justice J. A. Turnage delivered the Opinion of the Court.
Dennis Leon Valcourt was convicted of aggravated burglary. He
appeals the sentence imposed upon him by the District Court of the
~irst
Judicial District, Lewis and Clark County. We affirm.
The issue is whether the sentence imposed is improper.
The charges against Valcourt arose out of a burglary and
brutal beating of a seventy-six-year-old Helena woman in her home
in July 1991. A jury convicted Valcourt of aggravated burglary.
After a presentence investigation and a defense-requested
chemical dependency evaluation, the District Court held a sentenc-
ing hearing at which testimony was heard on behalf of the State and
by Valcourt himself. The court sentenced Valcourt to the maximum
term of forty years imprisonment and denied him any eligibility for
parole pursuant to 46-18-202(2), MCA. It gave the following
reasons for the sentence it imposed:
The reasons for the Court's sentence are that the
defendant has a long criminal record. He has had
numerous opportunities to rehabilitate himself, but has
not taken advantage of them. The defendant's crimes have
become more violent culminating in this crime. The
victim/complainant is near death and has basically lost
her life. After months of hospitalization on life
support systems, she is required to live in a nursing
home because of defendant's actions. The defendant is in
severe stages of alcoholism. The defendant indicated he
has no idea or reason why he committed this crime. There
is no way to predict what the defendant may do next. The
defendant's criminal history, this crime and his severe
alcoholism shows that the defendant poses an extreme
danger to society.
Valcourt appealed to this Court.
Valcourt~s argument on appeal is that the sentence imposed
upon him violates constitutional and statutory principles of
prevention, reformation, and rehabilitation. He cites provisions
in 5 46-18-101, MCA, that the correctional policy of this State
includes rehabilitation of the convicted. However, that statute
also provides that the correctional policy of this State includes
ltprotect[ing]society by preventing crime through punishment."
In State v. Beach (1985), 217 Mont. 132, 705 P.2d 94,
defendant Beach received a 100-year sentence, the maximum allow-
able, without eligibility for designation as a nondangerous
offender or parole. He claimed that his sentence violated Article
11, section 28 of the Montana Constitution and § 46-18-101, MCA.
As does Valcourt, Beach argued that his sentence was not based upon
principles of prevention, reformation, or rehabilitation, but that
it was motivated by a desire for revenge for the victim's family.
This Court upheld Beach's sentence, stating:
We find no merit in defendant s argument. ~irst,
~rticle
11, section 28, Mont. Const. allows a district court in
its discretion to base a sentence upon the principle of
prevention of future crimes. This includes the power to
remove a person from society, as the District Court found
necessary here.
Secondly, the District Court's sentence was within the
permissible statutory range, and, in the absence of clear
abuse of discretion is properly reviewed by the Sentence
Review Division. There was no clear abuse of discretion
in this case and thus this is a matter for the Sentence
Review Board.
Beach, 705 P.2d at 107.
Valcourt argues that his sentence violates the constitutional
prohibition against cruel and unusual punishment. On that subject,
this Court has stated:
Ordinarily a sentence is not cruel and unusual punishment
if it is within the maximum established by statute . . .
and review properly lies with the Sentence Review Divi-
sion.
State v. Austad (1982), 197 Mont. 70, 100, 641 P.2d 1373, 1389.
Valcourt states that, at the sentencing hearing, he displayed
remorse and willingness to receive and complete chemical dependency
treatment and that because he has never received professional help
with his drug addiction, he is different from the defendants in the
cases cited above. He asserts that by not allowing him the
possibility of parole on a forty-year sentence, the court has
effectively removed any incentive for him to use his time produc-
tively in prison by taking advantage of chemical dependency
programs to prepare himself for an eventual return to society.
Valcourtts arguments attempt to place a duty on the criminal
justice system to force him into rehabilitation. The Legislature
specifically found in § 46-18-101(2), MCA, that Itanindividual is
responsible for and must be held accountable for his actions." The
record does not demonstrate whether chemical dependency treatment
was available to Valcourt during his previous incarcerations.
However, Valcourttsown testimony at the sentencing hearing demon-
strates a denial of personal responsibility for his criminal
history, either because "the other guy started itf1or because of
his use of alcohol or drugs. ~enialof parole need not prohibit
Valcourt from participating in chemical dependency treatment for
his own betterment.
Valcourt also objects to a reference in the presentence
investigation to a charge against him of sexual intercourse without
consent. The District Court specifically noted at the sentencing
hearing that it was disregarding any reference to or consideration
of that charge, of which Valcourt was acquitted.
The sentence imposed is within the statutory limits for the
offense of which Valcourt was convicted. Affirmed.
Chief Justice
We concur:
August 11, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
NICHOLAS C. JACQUES
Attorney at Law
310 Broadway
Helena, MT 59601
HON. MARC RACICOT, Attorney General
Kathy Seeley, Assistant
Justice Bldg.
Helena, MT 59620
MIKE MCGRATH, County Attorney
Carolyn A. Clemens, Deputy
Lewis & Clark County Courthouse
228 Broadway
Helena, MT 59601
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA/