NO. 94-286
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
THE STATE OF MONTANA,
Plaintiff and Respondent,
-v-
JOHN JACOB LORENZ,
Defendant and Appellant.
APPEAL FROM: District Court of the Seventh Judicial District,
In and for the County of Richland,
The Honorable Richard G. Phillips, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William Hooks, Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, AttorneGyen~nxal, Crew
Coughlin, Asistant Attorney Helena,
Montana; Gary Ryder, Deputy Richla'nd County
Attorney, Sidney, Montana
Submitted on Briefs: October 13, 1994
Decided: October 20, 1994
Clerk
Justice James C. Nelson delivered. the O'pinion of the Court.
This is an appeal from the entry of the statement of reasons
of the Seventh Judicial District Court supporting its prior
designation of John J. Lorenz (Lorenz) as a dangerous offender for
purposes of parole eligibility. We reverse and remand.
The sole issue on appeal is whether the District Court erred
in interpreting § 46-18-404(l), MCA, to require, as a matter of
law, that Lorenz be designated as a dangerous offender.
Lorenz, along with a codefendant, was tried and found guilty
by a Richland County jury of various felony sex offenses. On
appeal of his sentence, we reversed the designation of Lorenz as a
dangerous offender and remanded the case to the District Court "for
additional findings articulating its reasons for a dangerous or
nondangerous designation." State v. Wing and Lorenz (1994) _
Mont. _, P.2d __, 51 St. Rep. 223, 229.
The court did not hold an additional hearing, but, instead,
entered a "Statement of Reasons for Court's Designation." The
court stated that its "sole reason" for designating Lorenz as a
dangerous offender was its interpretation of 5 46-18-404, MCA, as
requiring such a designation.
Section 46-18-404(l), MCA, provides, in pertinent part:
[T]he 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
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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 danger to other persons or
society.
The District Court interpreted this statute as requiring a
dangerous designation unless the defendant can satisfy the
conditions of both (a) and (b)--i.e. that he not have been
convicted of nor incarcerated for any felony within the preceding
five years and that he does not represent a danger to other persons
or society. Since the court found that Lorenz had two prior felony
convictions within the last five years, it concluded that he must
be designated a dangerous offender as a matter of law. The court
did not make any finding concerning whether Lorenz represented a
substantial danger to other persons or society.
We review the District Court's conclusions of law to determine
whether its interpretation of the law was correct. State v.
Christensen (1994), _ Mont. -, ___ P.2d _, 51 St. Rep. 542.
Here, we hold that the District Court incorrectly interpreted § 4G-
18-404(l), MCA.
Lorenz argues, and the State concedes, that our decision in
State v. Dahl (1980), 190 Mont. 207, 620 P.2d 361, is dispositive
of the issue raised in the instant appeal. In that case the
defendant had a prior felony within five years of the offense
involved in the appeal. The district court, concluding that it was
required to do so under the statute, designated Dahl as a dangerous
offender at sentencing. -...-.-,
Dahl 620 P.2d at 364-65. We determined
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that the district court erred and that, while not a model of
clarity, the statute is "mandatory only where the circumstances
require the sentencing court to sentence one as a nondangerous
offender." Dahl
- , 620 P.2d at 365. We concluded that § 46-18-
404(l), MCA, "does not require the judge to designate one as
dangerous; rather, it sets forth the circumstances under which the
defendant must be designated as nondangerous." -(I 620 P.2d at
Dahl
365.
Under the statute, as interpreted in m, if the defendant
satisfies both subsections (a) and (b) of 5 46-18-404(l), MCA, then
he & be designated as a nondangerous offender for parole
eligibility purposes. On the other hand, if the defendant
satisfies the prerequisites of only one of the subsections of § 46-
18-404(1) then the court may, in its discretion, designate the
defendant either dangerous or nondangerous. State v. Miller
(19881, 231 Mont. 497, 517, 757 P.2d 1275, 1287.
Here, the court erroneously concluded that it had no
discretion and that it was required to designate Lorenz a dangerous
offender as a matter of law. Accordingly, no inquiry was made nor
were any findings entered or reasons articulated as to whether
Lorenz represents a substantial danger to other persons or society.
Where the court refuses to exercise its discretion because it
erroneously concludes that, as a matter of law, it has none,
reversal and remand are required.
The District Court's designation of Lorenz as a dangerous
offender is, accordingly, reversed, and this case is remanded with
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instructions that the court hold a hearing on whether Lorenz
represents a substantial danger to other persons or society under
5 46-18-404(1)(b), MCA. In addition to any presentence report and
the evidence at trial and sentencing hearing, the court shall
consider, along with the arguments of counsel, such additional
admissible evidence as the defendant and the State may wish to
offer. Thereafter the court shall enter its finding designating
Lorenz either dangerous or nondangerous for parole eligibility
purposes and shall articulate its reasons for such designation.
See, § 46-18-404(3), MCA; State v. Buckman (1989), 236 Mont. 37,
40, 768 P.2d 1361, 1363; and State v. Belmarez (1991), 248 Mont.
378, 381-82, 812 P.2d 341, 343-44.
REVERSED and REMANDED for further proceedings consistent with
this opinion.