No. 95-266
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
STATE OF MONTANA,
Plaintiff and Respondent,
v.
NORMAN LEE STEVENS,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John W. Larson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Edmund R. Sheehy, Jr., Cannon and Sheehy,
Helena, Montana
For Respondent:
Honorable Joseph Mazurek, Attorney General;
Jennifer Anders, Assistant Attorney General,
Helena, Montana
Betty Wing, Deputy County Attorney, Missoula,
Montana
Submitted on Briefs: September 28, 1995
Decided: October 24, 1995
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
The Fourth Judicial District Court denied Norman Lee Stevens's
petition for post-conviction relief. Stevens appeals. We affirm.
The issue is whether the District Court erred in denying the
petition for post-conviction relief because the judgment challenged
in the petition was illegal under Title 46 Chapter 18, MCA.
Stevens pled guilty in 1992 to two counts of sexual assault
upon a fourteen-year-old girl. On each count, he was sentenced to
twenty years' imprisonment with ten years suspended, the sentences
to run concurrently. He appealed. This Court vacated and remanded
for resentencing because the sentencing order failed to address
certain statutory requirements. State v. Stevens (1993), 259 Mont.
114, 854 P.2d 336.
Stevens was resentenced to twenty years on each count with ten
years suspended, to run concurrently. He appealed this sentence to
the Sentence Review Division. The Sentence Review Division
affirmed, but added a provision that "when the defendant is ready
for parole, he can, at the discretion of the parole board, complete
his sex offender treatment with Dr. Scolatti on the outside, as
part of his parole plan."
Stevens then filed a petition for post-conviction relief with
the District Court, arguing that his sentence was illegal. The
court denied the petition, and Stevens appeals.
Did the District Court err in denying the petition for post-
conviction relief because the judgment challenged in the petition
was illegal under Title 46 Chapter 18, MCA?
In reviewing a district court's denial of a petition for post-
conviction relief, this Court determines whether substantial
evidence supports the findings and conclusions of the court. State
v. Baker (Mont. 1995), 901 P.2d 54, 58, 52 St.Rep. 735, 737. This
Court will not overturn legal conclusions if the lower court's
interpretation of the law is correct. ,aker
B 901 P.Zd at 58.
1n analyzing the basis for this particular petition for post-
conviction relief, we recognize that trial courts possess broad
discretion to determine the appropriate punishment for a particular
crime. State v. Hembd (1992), 254 Mont. 407, 411, 838 P.Zd 412,
415. As long as a sentence is within legal limits and the judgment
indicates that the court has considered the requisite factors, the
sentence is valid. State v. Losson (19931, 262 Mont. 342, 352, 865
P.2d 255, 261.
Stevens first points out that sexual assault upon a person
under the age of sixteen did not carry a mandatory minimum sentence
until October 1, 1991. See 5 45-S-502(3), MCA; Sec. 1, Ch. 564, L.
1991. The law in effect at the time of the crime controls as to
the possible sentence. State v. Azure (1978), 179 Mont. 281, 282,
587 P.2d 1297, 1298. Stevens's crimes were committed in July and
August of 1991.
The District Court stated:
[T]he crime committed was two counts of Felony Sexual
Assault on a female less than 16 years of age. These
3
crimes are punishable by a minimum mandatory sentence of
between two and ten years for each count.
The State concedes that the above statement by the District Court
is incorrect. However, the court's judgment was clearly not based
wholly upon this statement. The court did not impose the mandatory
minimum sentence.
In considering the petition for post-conviction relief, the
District Court pointed out that even before the 1991 Montana
legislature established a minimum sentence for sexual assault
against a victim under the age of sixteen, by an offender three or
more years older, the penalty prescribed for such an assault was
"imprison[mentl . . . not to exceed 20 years, and . [al fine
. not more than $50,000," as compared with the penalty for
sexual assault of an adult of a fine "not to exceed $500 or
imprison[mentl in the county jail not to exceed 6 months, or both."
Section 45-5-502(2) and (3), MCA (1989). The District Court
sentenced Stevens to twenty years with ten years suspended, on each
count, as permitted by statute and therefore did not use the 1991
amendments to 5 45-5-502, MCA.
1n ruling on the petition for post-conviction relief, the
court concluded, "Thus, the State has had the correctional policy
reflected in the Judgment at the time of sentencing." We agree
that, prior to 1991, the correctional policy of the State of
Montana provided for significantly greater penalties for sexual
assault when the victim was under the age of sixteen.
Stevens also contends the court erred in analyzing 5 46-l&
225, MCA (1991), and sentencing him, a nonviolent felony offender,
4
to a term of imprisonment. Both § 46-18-225, MCA (1991), and 5 46
1%101(4), MCA (1991), discussed below, were part of Ch. 794, L.
1991, effective July 1, 1991. Section 46-18-225, MCA (1991),
provides:
Criteria for sentencing nonviolent felony offenders.
Prior to sentencing a nonviolent felony offender to a
term of imprisonment in the state prison or a women's
correctional facility, the court shall take into account
whether:
(1) the interests of justice and the needs of
public safety truly require the level of security
provided by imprisonment of the offender in the state
prison or a women's correctional facility;
(2) the needs of the offender can be better served
in the community or in a facility or program other than
the state prison or a women’s correctional facility;
(3) there are substantial grounds tending to excuse
or justify the offense, though failing to establish a
defense;
(4) the offender acted under strong provocation;
(5) the offender has made restitution or will make
restitution to the victim of his criminal conduct;
(6) the offender has no prior history of conviction
for a criminal act or has led a law-abiding life for a
substantial period of time before the commission of the
present crime;
(7) the offender's criminal conduct was the result
of circumstances that are unlikely to recur;
(8) the character and attitude of the offender
indicate that the offender is likely to commit another
crime;
(9) the offender is likely to respond quickly to
correctional or rehabilitative treatment; and
(10) imprisonment of the offender would create an
excessive hardship on the offender or his family.
The State points out that this is a list of factors to be "takeEn
into account." None of the factors bars imprisonment.
An alleged error in the sentencing order was the court's
indication that "the role of the victim in justice is something
that I am committed to and I will heed the words of the victims in
cases that are brought before me." Although § 46-l-225, MCA
5
(1991), does not list the victim's wishes as a factor to be
considered in sentencing, neither does it prohibit consideration of
the victim's wishes by the sentencing court.
Stevens also criticizes the court's comment that "because of
circumstances, your crime will likely reoccur." He argues that
this statement was an improper generic comment on recidivism among
sex offenders. No error has been shown in the statement
Stevens maintains the court did not consider alternatives to
imprisonment as it was required to do under 5 46-l&101(4), MCA
(1991) :
It is also the policy of the state that alternatives to
imprisonment, such as community corrections, should be
used whenever appropriate for nonviolent felony offenders
in order to provide them opportunities to gain work
experience, to learn life skills, to obtain education and
training, or to participate in other activities that will
reduce recidivism and enable offenders to become produc-
tive members of society.
Stevens asserts that this statute creates a presumption in favor of
alternatives to imprisonment for nonviolent offenders. He argues
that the following language in the court's sentencing order is
contrary to the above policy:
The correctional policies of this State have imposed a
special emphasis on punishment of sexual offenders whose
victims are under the age of 16 years. There is also the
policy toward rehabilitation but I have noted in the
statute this specific emphasis placed on crimes of this
nature.
The court's task under § 4618-101(4), MCA (1991), was to
analyze whether an alternative to prison was appropriate in this
case. The court specifically stated it had considered allowing
Stevens to continue under Dr. Scolatti's community treatment
6
program. Further, as we noted above, the statutory penalty for
sexual assault of a person under sixteen years of age has histori-
cally been higher than for sexual assault of an older victim. We
conclude that the above statement in the sentencing order was not
error.
The District Court's explanation of the sentence it imposed
was over three single-spaced pages long. The court's exhaustive
discussion of its reasoning included examination of each of the ten
factors listed under § 46-18-225, MCA (1991).
The court noted that the crime of which Stevens was convicted
is considered one of the most serious and destructive in society.
The victim's life was seriously impacted on a long-term basis, and
the victim has continued to suffer significant long-term problems.
The offense was committed to gratify Stevens's desire for pleasure,
excitement, and relief from stress. The crimes were followed by
additional criminal behavior, the theft of money from customers who
employed Stevens to clean their establishments.
The court stated its belief that complete rehabilitation could
only be obtained in this matter through some punishment, and that
punishment is necessary both to deter future behavior on Stevens's
part and to send a message to others who may be similarly disposed
that this type of conduct will not be tolerated. The court noted
that Stevens's crimes involved calculation and victimization of an
unsuspecting individual who trusted him, and that there was no
justification, excuse, or strong provocation. Finally,
while imprisonment would create a hardship on you and
your family, it does not outweigh the correctional policy
7
in favor of punishment and the deterrent such punishment
would provide. Nor does it excuse the crimes and the
damages that have been inflicted upon the individual in
this case. I believe that criminal activity which could
reoccur would be of greater harm than the harm imposed by
imprisonment.
The District Court found that none of the grounds raised by
Stevens provided an adequate basis for granting the petition for
post-conviction relief. After reviewing Stevens's claims, we
conclude that the District Court did not err in denying the
petition. We therefore affirm the judgment of the District Court.
We concur:
U----
Justices
Justice
October 24, 1995
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
EDMUND R. SHEEHY, JR.
Cannon & Sheehy
P.O. Box 5717
Helena, MT 59604-5717
JOSEPH MAZUREK
Attorney General
Justice Building
Helena, MT 59620
Betty Wing
Deputy County Attorney
County Courthouse
Missoula, MT 59802
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA