State v. McGuire

NO. 93-070
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993

STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
JOHN LEE McGUIRE, i
Defendant and Appellant.

APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Larry W. Moran, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Jeannette Ellen Berry; Berry & Bordy, Bozeman,
Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Micheal S.
Wellenstein, Ass't Attorney General, Helena, Montana
A. Michael Salvagni, Gallatin County Attorney,
Marty Lambert, Chief Deputy Gallatin County
Attorney, Bozeman, Montana

Submitted on Briefs: August 12, 1993
Decided: October 4, 1993
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.

John McGuire appeals the sentence imposed by the Eighteenth

Judicial District Court, Gallatin CoUnty, following conviction for

one count each of felony theft and burglary. We affirm.

The procedural facts relevant to this appeal are set forth in

State v. McGuire, No. 92-534 (Oct. 4, 1993) (McGuire I).

Subsequent to sentencing in Flathead County, McGuire was sentenced

on the Gallatin County theft and burglary convictions to concurrent
terms of ten and twenty years imprisonment, respectively, with five

years suspended. The District Court's sentence contained no

reference to the Flathead County sentence and did not expressly

provide that it would run concurrently with that previously imposed

sentence.

The issue on appeal is whether the District Court erred in

sentencing McGuire on the Gallatin County charges.

McGuire correctly notes that the court in Flathead County

expressly made its sentence consecutive to the one to be imposed in

Gallatin County. He also correctly argues that, pursuant to 5 46-

18-401(1) (a), MCA, his Gallatin County sentence is consecutive to

the Flathead County sentence because it was not expressly ordered

to run concurrently. On that basis, McGuire contends that the

sentences are ambiguous because they run consecutively to each

other and neither has a definite commencement date.

While McGuire argues that the Gallatin County sentence was

invalid and illegal, any ambiguity resulting from the combined

effects of the Flathead and Gallatin County sentences was removed

2
by our decision in McGuire I. There, we determined that the court
in Flathead County exceeded its sentencing authority under § 46-18-
401, MCA, by ordering its sentence to be served consecutively to
one not yet imposed. We modified that sentence and judgment,
striking the portion providing for consecutive sentences.
McGuire concedes that 5 46-18-401(1)(a), MCA, authorizes the
District Court in Gallatin County to make its sentence consecutive
to the one imposed by the court in Flathead County. Under that
statute, the court imposing the second sentence has the discretion
to make the sentences concurrent; failure to expressly do so
results in consecutive sentences. McGuire I, No. 92-534, slip op.
at 3.
It is clear that the District Court in Gallatin County had the
statutory authority, but no affirmative duty, to merge its sentence
with the one imposed in Flathead County: it declined to do so.
McGuire asserts no actual error by the District Court in Gallatin
County in exercising its discretion under, or in otherwise
applying, § 46-18-401(1)(a), MCA.
We hold that the District Court did not err in sentencing
McGuire on the Gallatin County charges. The effect of McGuire I
and this case is that the Gallatin County sentence will run
consecutive to the sentence imposed in Flathead County, as modified
by this Court in McGuire I.
Affirmed.
We concur:
 October 4, 1993

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:

Jeannette Ellen Berry
Berry & Bordy
2631 W. Main St.
Bozeman, MT 59715

Hon. Joseph P. Mazurek
Attorney General
Justice Bldg.
Helena, MT 59620

A. Michael Salvagni, County Attorney
Marty Lambert, Deputy County Attorney
615 So. 16th Ave., Rm. 100
Bozeman, MT 59715

ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA