NO. 93-199
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
STATE OF MONTANA,
Plaintiff and Respondent,
RICHARD J. FERTTERER, SR., and
DAVID JOHN FERTTERER,
Defendants and Appellants.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel G. Roth, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John M. Morrison, Morrison Law Offices, Helena,
Montana
For Respondent:
Hon. Joseph P. Masurek, Attorney General, Paul D.
Johnson, Assistant, Helena, Montana; Patrick L.
Paul, Cascade County Attorney, Great Falls, Montana
Submitted on Briefs: September 2, 1993
Decided: October 4, 1993
Filed:
Justice James C. Nelson delivered the Opinion of the Court.
Defendants appeal from an Order of the Eighth Judicial
District Court, Cascade County, denying defendants' motion to amend
their sentences so as to cause such sentences to run concurrently
with their sentences in the United States District Court (federal
court) . We affirm.
We state the issues on appeal as follows:
1. Did the District Court err in denying defendants' motion
for summary ruling on the basis of Uniform District Court Rule
2(b)?
2. Did the District Court err in refusing to amend the
defendants' sentences so as to cause such sentences to run
concurrently with their sentences in federal court?
Richard J. Fertterer, Sr. was charged with two felony counts
of criminal mischief and seven misdemeanor fish and game violations
in connection with a wide-spread poaching operation. His son,
David John Fertterer, was charged with two felony counts of
criminal mischief and four misdemeanor fish and game violations.
On May 14, 1991, a jury found both defendants guilty of all counts.
On June 19, 1991, District Judge Joel G. Roth sentenced the
defendants each to twenty years in the Montana State Prison, with
fifteen years suspended, on the felony counts and to concurrent
jail terms on the misdemeanor counts. In addition, fines,
restitution, and costs were levied against the defendants. The
defendants appealed from their convictions to this Court, and we
upheld the convictions on September 28, 1992. State v. Fertterer
2
(1992) I 255 Mont. 73, 841 P.2d 467 (Fertterer I). Petition for
rehearing was denied on November 12, 1992, and remittitur issued on
November 16, 1992,.
The factual background leading up to the defendants'
convictions is set forth in Fertterer I, and will not be repeated
here except as necessary to dispose of the issues before us.
On October 27, 1992, the defendants moved the District Court
to amend their sentences so as to cause such sentences to run
concurrently with sentences the defendants received in federal
court for convictions under the Lacey Act. Those federal
convictions were for offenses arising out of the same transactions
as the state convictions. The federal sentences were set forth in
judgments filed on September 16, 1991. Following a hearing on
March 4, 1993, the District Court denied defendants# motion to
amend, and they subsequently filed a notice of appeal on March 18,
1993. Pending this appeal, the District Court stayed execution of
sentence.
Our standard of review in reviewing discretionary district
court rulings, such as those relating to post-trial motions, is
whether the district court abused its discretion. Steer, Inc. v.
Dep't of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 604.
I -' UNIFORM DISTRICT COURT RULE 2(B)
On October 27, 1992, defendants filed a motion to amend their
sentences. Remittitur issued by this Court on November 16, 1992,
returning jurisdiction of the case to the District Court. On
February 18, 1992, the defendants filed a motion for summary ruling
3
because the State of Montana (State) did not file a responsive
brief to their motion to amend sentences. The State also did not
respond to the motion for summary ruling. On March 4, 1993, the
day of the hearing on the defendants' motions, the State filed
Objections to Defendants' Motions. The defendants contend that the
District Court erred in denying them summary ruling on the motion
to amend their sentences, arguing that Uniform District Court Rule
Z(b) (Rule 2(b)) requires such a result. We disagree.
Rule 2(b) provides, in pertinent part:
Failure to file briefs. Failure to file briefs may
subject the motion to summary ruling. . . Failure to file
an answer brief by the adverse party within ten days
shall be deemed an admission that the motion is well
taken. . . .
While the State's failure to file an answer brief within the time
allowed under Rule 2(b) is to be viewed as an admission by the
State that the motion is well-taken, the rule does not require the
District Court to grant the unanswered motion. Maberry v. Gueths
(1989) I 238 Mont. 304, 309, 777 P.2d 1285, 1289. Rule 2(b) states
that a failure to file a responsive brief by the non-moving party
q'mayP' subject a motion to summary ruling. However, Rule 2(b) does
not remove the discretion of the District Court to grant or deny
the unanswered motion. Maberrv, 777 P.2d at 1289. We hold that
the District Court did not abuse its discretion in denying the
defendants' motion for summary ruling on their motion to amend
sentences.
II - ANENDMHNT OF SENTENCES TO RUN CONCURRENTLY
The defendants contend that the District Court erred by
refusing to amend its sentences so as to cause such sentences to
run concurrently with their subsequent sentences in federal court.
Again, we disagree.
The defendants pled guilty to violations of the Lacey Act,
which arose out oiE the same transactions for which the defendants
were convicted in state court. In sentencing the defendants for
the Lacey Act violations, United States District Judge Jack D.
Shanstrom stated that Richard Fertterer's sentence was "to be
served concurrent to the sentence imposed by the State of Montana
in connection with the same transaction." Judge Shanstrom stated
that David Fertterer's sentence "shall be served concurrent to
state penalties dealing with the same criminal transaction." Based
on this language in the federal court sentences, defendants argue
that the District Court should amend its sentences so as to cause
such sentences to run concurrently with the federal sentences. The
District Court correctly refused.
While defendants advance several different arguments
supporting this position, we find one well-settled principle of
Montana law dispositive. Once a valid sentence has been
pronounced, the court imposing that sentence has no jurisdiction to
modify it, except as provided by statute. In re Petition of
Arledge (1988), 232 Mont. 450, 451, 756 P.2d 1169, 1170; State v.
George (1986), 224 Mont. 495, 496, 730 P.2d 412, 413; Dahlman v.
District Court (1985), 215 Mont. 470, 472, 698 P.2d 423, 425. The
only statutory authority allowing a court to modify a sentence is
provided at 5 46-18-117, MCA, which provides:
5
Correction of sentence. The court may correct an illegal
sentence or disposition at any time and may correct a
sentence imposed in an illegal manner within 120 days
after the sentence is imposed or after remand from an
appellate court.
Thus, the District Court could not amend the defendants' sentences
unless those sentences were illegal or were imposed in an illegal
manner.
Here, the District Court sentenced each defendant to ten years
in prison on each of the two felony criminal mischief convictions,
for a total of twenty years. However, the District Court then
suspended fifteen years on each defendant*s sentence. In addition,
the District Court fined each defendant for the two felonies, and
assessed costs and restitution.
Section 45-6-101(3), #CA, sets forth the maximum punishment
for felony criminal mischief as being a $50,000 fine, imprisonment
for ten years, or both. Thus, in this case, the defendants could
have been sentenced to twenty~ years in prison, with no time
suspended, and could have been fined $100,000 each.
On the misdemeanor counts, the District Court sentenced the
defendants to six months in the county jail on each count, and
required those sentences to run concurrently with the felony prison
sentences. In addition, the defendants were fined $500 for each
violation. With respect to the misdemeanor violations, the maximum
penalty allowable under law is six months in the county jail and a
$500 fine. Section 87-l-102, MCA.
Clearly, the District Court's sentences were well within the
statutory maximums and were not illegal. Similarly, there is
6
nothing in the record that would lead to the conclusion that the
defendantsr sent.ences were imposed in an illegal manner.
Therefore, because the sentences imposed by the District Court were
clearly legal, the District Court was without jurisdiction to
thereafter amend the sentences. We hold that the District Court
properly denied the defendants* motion to amend their sentences.
Affirmed.
October 4. 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
John M. Morrison
Morrison Law Offices
80 So. Warren
Helena, MT 59601
Patrick L. Paul, County Attorney
Mike Fanning, Deputy
Cascade County Courthouse
Great Falls, MT 59401
Hon. Joseph P. Ma&rek, Attorney General
Paul D. Johnson, Assistant
Justice Bldg.
Helena. MT 59620
ED SMITH
CLERK OF TJZESUPREME COURT