No. 95-171
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
STATE OF MONTANA,
Plaintiff and Respondent,
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GENE E. LUCAS, ..; ; " "., ",
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Defendant and Appellant.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Rosebud,
The Honorable Joe L. Hegel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William F. Hooks, Appellate Defender,
Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Micheal S. Wellenstein, Assistant Attorney
General, Helena, Montana
Lee Kerr, Rosebud County Attorney,
Forsyth, Montana
Submitted on Briefs: October 19, 1995
Decided: November 14, 1995
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of the Supreme Court and by a report of its
result to State Reporter Publishing Company and West Publishing
Company.
Defendant Gene E. Lucas was convicted in the Sixteenth
Judicial District Court in Rosebud County of two counts of criminal
possession of dangerous drugs and misdemeanor theft. He was
designated a persistent felony offender and sentenced to serve two
consecutive terms of five and ten years in the Montana State Prison
and a concurrent term of six months in the Rosebud County Jail.
Lucas appeals the District Court's imposition of a prison sentence.
We vacate his sentence and remand to the District Court for
resentencing.
The issue on appeal is whether the District Court erred when
it failed to consider alternatives to imprisonment for a nonviolent
felony offense pursuant to §§ 46-18-201(10) and -225, MCA.
FACTUAL BACKGROUND
On October 7, 1994, the State charged Lucas by information
with one count of criminal possession of dangerous drugs, a felony,
in violation of § 45-9-102, MCA. Lucas was released on bail on
October 7, 1994. On January 26, 1995, a jury found Lucas guilty of
criminal possession of dangerous drugs.
2
On January 9, 1995, the State charged Lucas by information
with one count of felony theft in violation of § 45-6-301, MCA, and
one count of criminal possession of dangerous drugs, a felony, in
violation of § 45-9-102, MCA. Lucas was accused of committing both
crimes while awaiting trial of the first charge of criminal
possession of dangerous drugs. On January 19, 1994, the State
filed a notice of intent to seek a persistent felony offender
designation for Lucas. On January 30, 1995, Lucas pled guilty to
the second charge of criminal possession of dangerous drugs.
For the first offense of criminal possession of dangerous
drugs, the court sentenced Lucas to serve a five-year term in the
Montana State Prison. For the second offense, the court designated
Lucas a persistent felony offender and sentenced him to a term of
ten years in the Montana State Prison, to be served consecutively
with his first sentence.
On appeal, Lucas contends that since he was designated a
nonviolent felony offender as defined in § 46-18-104(3), MCA, the
District Court had to consider alternatives to imprisonment
pursuant to § 46-18-201 (10), MCA, in light of the criteria set
forth in § 46-18-225, MCA. Lucas further contends that if the
court determined that imprisonment was necessary, it had to state
its reasons why alternatives to imprisonment were not selected
based on the criteria set forth in § 46-18-225, MCA.
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DISCUSSION
This Court has addressed a district court's failure to
consider alternatives to imprisonment at the Montana State Prison
for a nonviolent felony offender, pursuant to §§ 46-18-201(10)
and -225, MCA, inStatev.Pence (Mont. 1995),902 P.2d41, 52 St. Rep.
937; State v. LaMere (Mont. 1995), 900 P.2d 926, 52 St. Rep. 828; and
State v. Stevens (1993), 259 Mont. 114, 854 P.2d 336. In each case, we
remanded the sentence to the district court to consider
alternatives to imprisonment at the Montana State Prison as
required by §§ 46-18-201(10) and -225, MCA.
In Pence, we set forth the obligations of a trial court when
sentencing a nonviolent felony offender:
Initially, a district court must consider
alternatives to imprisonment. Second, in considering
al ternati ves to imprisonment, a district court must
examine the ten sentencing criteria found in § 46-18-225,
MCA. Finally, if a district court decides against
alternatives to imprisonment, it must provide reasons why
it did not select alternatives.
Pence, 902 P.2d at 46 (citing Stevens, 854 P.2d at 337).
In this case, the State concedes that the District Court, in
sentencing Lucas, failed to articulate consideration of
alternatives to imprisonment. Therefore, we hold that in light of
our previous decisions and the State's concession, this matter
should be remanded to the District Court for compliance with the
three Stevens requirements.
Lucas also contends that he is entitled to a new sentencing
hearing. However, we hold that a new sentencing hearing is
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· ..
unnecessary. A review of the record demonstrates that a full
hearing was held prior to the original sentencing order and that
evidence presented addressed all of the relevant criteria set forth
in § 46-18-225, MCA. We note that Lucas himself testified at the
sentencing hearing and had the opportunity to present any
additional evidence that he felt the court should have considered.
For the reasons stated above, we vacate Lucas's sentence and
remand to the District Court for resentencing consistent with this
opinion and pursuant to §§ 46-18-201(10) and -225, MCA.
I~ice
We concur:
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State v. Lucas
Combined Opinion