State v. McKenzie

No. 95-161

IN THE SUPREME COURT OF THE STATE OF MONTANA
1995

STATE OF MONTANA,
Plaintiff and Respondent,
-VS-

DUNCAN PEDER MCKENZIE,
Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas M. McKittrick, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Gregory A. Jackson, Jackson &Rice, Helena, Montana;
Timothy K. Ford, MacDonald, Hoague & Bayless,
Seattle, Washington
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Pamela P.
Collins, Assistant Attorney General, Helena, Montana

Submitted on Briefs: April 11, 1995
Decided: AB!ril 20, 1995
Filed:

Cl&-k
Justice James C. Nelson delivered the Opinion of the Court.

Duncan Peder McKenzie, appeals from an order of the Eighth
Judicial District Court, Cascade County, denying his request to

consider his objections to the resetting of his execution date and

issuing a death warrant. This Court granted the State's motion to

dismiss McKenzie's appeal, in an order dated April 11, 1995.

Pursuant to the April 11, 1995 order, this opinion follows.

The issues before this Court are:

1. Whether McKenzie has a right to appeal the District
Court's resetting of the execution date?

2. Whether the District Court has jurisdiction to set
an execution date after an earlier execution date
has expired?

3. Whether the District Court had jurisdiction to hear
McKenzie's substantive arguments regarding the
resetting of the execution date?

PROCEDURAL BACKGROUND

In January, 1975, Duncan McKenzie was convicted of deliberate
homicide and aggravated kidnapping in the Eighth Judicial District

Court, Cascade County. McKenzie was sentenced to death for these

convictions on March 3, 1975. The facts underlying McKenzie's

conviction and sentencing are fully set forth in State v. McKenzie

(1976), 171 Mont. 278, 577 P.2d 1023, and will not be repeated

here. McKenzie has challenged his conviction and sentence in

numerous state and federal proceedings, none of which has been

ultimately successful on the merits. McKenzie's death sentence has

been stayed at least eight times since its imposition. The most

recent stay of execution entered in November of 1988, was dissolved

by the United States District Court for the District of Montana on

February 23, 1995. The following provides a brief review of the

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procedural history,of this case.

In McKenzie's first state proceeding, this Court affirmed
McKenzie's direct appeal of his conviction. State v. McKenzie

(1976), 171 Mont. 278, 577 P.2d 1023. In 1980, after two remands

by the United States Supreme Court for reconsideration by this

Court, we affirmed McKenzie's conviction. State v. McKenzie

(1980), 186 Mont. 481, 608 P.2d 428.

On January 5, 1981, McKenzie filed a petition for post-

conviction relief in state district court. The District Court

denied the petition, and this Court affirmed that court's ruling.

McKenzie v. Osborne (1981), 195 Mont. 26, 640 P.2d 368. McKenzie

then filed a petition for writ of habeas corpus in federal district

court, which was resolved against him seven years later. McKenzie
v. Risley (9th Cir. 1988), 842 F.2d 1525, cert. denied, 488 U.S.

901 (1988). McKenzie petitioned the United States Supreme Court

for a writ of certiorari, which the Court denied on October 11,

1988. McKenzie v. McCormick (1988), 488 U.S. 901.

McKenzie then filed his second petition for writ of habeas

corpus with this Court. We denied that petition on April 16, 1985,

in an unpublished order. On June 27, 1985, McKenzie filed his

second habeas petition in federal court which the federal district

court denied. The Ninth Circuit affirmed the federal district

court's denial, McKenzie v. McCormick (9th Cir. 1994), 27 F.3d

1415, and also denied McKenzie's petition for rehearing en bane.

On January 17, 1995, the United States Supreme Court denied

McKenzie's petition for writ of certiorari. The Court also denied

McKenzie's request for a rehearing of the denial of certiorari.

On February 23, 1995, the United States District Court for the

3
District of Montana ordered‘that the stay of execution granted in

1988, during the pendency of McKenzie's second petition for writ of

habeas corpus, be vacated and dissolved. There being no stays of
execution in effect, the State moved the Eighth Judicial District

Court, Cascade County, for a hearing to reset the execution date.

Prior to the hearing on this matter, McKenzie filed
"Defendant's Objections to Request for Execution Date" and

supporting memorandum. McKenzie raised several arguments in this

document including the argument that the court did not have

jurisdiction, and that the hearing to reset the execution date was

a hearing to "reimpose the death sentence." The District Court

held a hearing on March 27, 1995, and overruled all of the

objections McKenzie raised in his "Memorandum Supporting Objections

to Execution Setting."

The District Court found that its act in resetting the

execution date was merely a procedural and ministerial act, and

proceeded with the hearing to set the execution date. The court

set the execution date for May 10, 1995, and issued a death

warrant.

McKenzie filed a notice of appeal seeking to invoke this

Court's appellate jurisdiction over the District Court's rulings.

The State moved to dismiss the appeal on the grounds that McKenzie

had no right of appeal because there is no appealable order which
would give rise to this Court's appellate jurisdiction. We ordered

that the matter be fully briefed and, after careful consideration

of the parties' arguments, issued an order granting the State's

motion to dismiss on April 11, 1995.
DISCUSSION

4
 1. RIGHT OF APPEAL
The State contends that McKenzie has no right of appeal
because under Montana law, U [aln appeal may be taken by the
defendant only from a final judgment of conviction and orders after

judgment which affect the substantial rights of the defendant."

Section 46-20-104(l), MCA. The State argues that the order

resetting the execution date did not affect McKenzie's substantial

rights; rather, the court merely executed the March 3, 1975
judgment. The State also maintains that the order resetting the

execution date is not a judgment or sentence. We agree.
Courts have long recognized that setting an execution date is

a ministerial and not a judicial act. See, State v. Joubert (Neb.

1994), 518 N.W.2d 887, 895; Pate v. State (Okla.Crim. 1964), 393

P.2d 247; State v. Miller (Kan. 1950), 217 P.2d 287; Rose v.

Commonwealth (Va. 1949), 55 S.E.2d 33. As stated by one court:

The refixing or resetting of the time for execution,
where for any reason the judgment of death has not been
executed, is a merely ministerial act, which, at common
law, as we have seen, generally devolved upon the
sheriff, but which under our statute devolves upon the
court in which the conviction was had.

Pate
-I 393 P.2d at 249.

In resetting the execution date, the District Court was merely

performing a ministerial function, i.e., carrying out the March 3,

1975 judgment which sentenced McKenzie to death. McKenzie's

substantial rights were not implicated by this proceeding,

accordingly, the District Court's order resetting the execution

date is not an appealable order.

We also conclude that the District Court's order resetting the

execution date cannot be defined as an appealable judgment. Under

5
Montana law, a judgment is defined as "an adjudication by a court

that the defendant is guilty or not guilty, and if the adjudication
is that the defendant is guilty, it includes the sentence
pronounced by the court." Section 46-l-202(10), MCA. In

addition, other courts have recognized that: "the order fixing or

resetting the date of execution under the original judgment is not

a new judgment, and from such order no appeal lies." -,
Pate 393

P.2d at 250.

Here, the District Court did not "resentence" McKenzie nor
did it "reimpose" the death penalty. It merely executed the

judgment before it. McKenzie was "sentenced" and the death penalty

WFlS "imposed" on March 3, 1975; that sentence has never been

vacated by any court.

Finally, we note that the District Court would not have

jurisdiction to vacate the original judgment sentencing McKenzie to

death, and grant his request for a sentence of life imprisonment,

because, once a valid judgment and sentence has been signed, the

court imposing the sentence lacks jurisdiction to vacate or modify

it except as provided by law. State v. Hanners (19921, 254 Mont.

524, 526, 839 P.2d 1267, 1268. We conclude that there is no

provision in the law which would allow the District Court to amend,

at the hearing resetting the execution date, the original judgment

of 1975 sentencing McKenzie to death.

2. JURISDICTIONAL ARGUMENT

McKenzie argues that the District Court did not have

jurisdiction to reset the execution date because the law in effect

at the time he was sentenced had no provision for the resetting of

the execution after the statutory time for execution had passed.
6
The law in effect at the time McKenzie was originally sentenced

provided that: ' [iln pronouncing the sentence of death, the court
shall set the date of execution which must not be less than thirty

(30) days nor more than sixty (60) days from the date the sentence
is pronounced." Section 95-2303(b), RCM (1947), as amended (later

recodified as 5 46-19-103, MCA). Therefore, according to McKenzie,

at the time he was sentenced, an execution had to be conducted
within the sixty-day time frame, and the court had no power to
reset the execution date if the sixty days elapsed.

However, in 1981, s 46-19-103(l), MCA, was amended to provide
that a court shall set a new execution date upon dissolution of a

stay of execution. According to § 46-19-103(l), MCA, the District

Court has a mandatory duty to set a new execution date, and has no

discretion to do otherwise.

Because we have previously concluded that the order resetting

the execution date was merely a procedural or ministerial act and,

thus, McKenzie's substantial rights were not thereby affected, the

controlling law is that law in effect at the time of the court's

resetting the execution date. See, State v. Coleman (1979), 185

Mont. 299, 605 P.2d 1000. Therefore the District Court acted

correctly in setting the execution date pursuant to s 46-19-103(l),

MCA.

In addition, we find no merit to McKenzie's argument that once

the initial execution date has passed, the District Court has no

authority to reset the date. Other courts have recognized that

"the failure to execute a death warrant on the original date fixed

does not result in the discharge of a prisoner sentenced to die,

but requires the court to fix a new date for the execution."
7
Joubert, 518 N.W.2d at 891.
As stated by the Kansas Supreme Court in Miller, 217 p.2d at
290, "the authorities uniformly hold that failure to execute a

death warrant on the date fixed does not result in immunity to or

discharge of a person sentenced to die, but requires the fixing of
a new date for his execution."

McKenzie also claims that the District Court did not have

jurisdiction to reset the execution date pursuant to 5 3-1-804(b),

MCA, which provides in part: U [tlhe first district judge who has
been substituted or disqualified for cause shall have the duty of

calling in all subsequent district judges." McKenzie argues that
Judge McKittrick did not have jurisdiction because the original

presiding judge or his successor, did not enter an order conferring

jurisdiction on Judge McKittrick.
McKenzie also points to this Court's order of March 14, 1976,

as authority for the proposition that McKittrick lacked
jurisdiction to reset the execution date. McKenzie's argument is

based on the following procedural background.

This case arose in Pondera County, in the Ninth Judicial

District before Judge R.D. McPhillips. McKenzie subsequently

disqualified McPhillips by substitution. McPhillips called in

Judge Robert J. Nelson of the Eighth Judicial District Court to

assume jurisdiction of the case, and Judge Nelson moved the cause

to Cascade County for the purposes of trial. Thereafter McKenzie

was found guilty of deliberate homicide and aggravated kidnapping,

and Judge Nelson imposed the death penalty. The execution date was

8
set for April 30, 1975, however it was stayed pending appeal to
this Court.
After remittitur, Judge Nelson's term had expired and Judge
William H. Coder succeeded Judge Nelson as a judge in the Eighth

Judicial District Court. Coder issued an order resetting the

execution date on the basis of the sentence previously pronounced

by Judge Nelson.
In our March 14, 1976 order we concluded that Judge Coder did

not have jurisdiction to reset the execution date. We held that

before a district court judge could reset the execution date, the
cause had to be returned to the original presiding judge in Ponder-a

county. That judge was required to call in another district judge

to continue with jurisdiction of the case.

At the time we issued that order, however, § 46-19-103(l), MCA

(1993), was not in effect. The relevant portion of that statute,

which controls here, provides that "the court in which the

defendant was previously sentenced shall, upon dissolution of the

stay I set a new date of execution . _I' McKenzie was properly

sentenced by Judge Nelson, a judge in the Eighth Judicial District

court. Judge McKittrick is a judge in the Eighth Judicial District

Court, the "court in which the defendant was previously sentenced."

Accordingly, Judge McKittrick has the statutory authority under 5

46-19-103(l) and (4), MCA, without more, (as would any other

district judge in that District) to perform the ministerial act of

setting an execution date and signing the death warrant.

Moreover, we conclude that 5 3-l-804, MCA, which controls the

substitution of district court judges, is not applicable. Rather,

§ 46-19-103(l) and (4), MCA, governs, and it reposes the act of

9
setting the execution date and signing the death warrant in the

court in which the defendant was sentenced--here the Eighth

Judicial District Court. Therefore, our order indicating the

original presiding judge in Pondera County must appoint another

district court judge before the court may set a new execution date

is not controlling.
3. SUBSTANTIVE CLAIMS

McKenzie's substantive claims are not properly before this

Court on appeal. The District Court concluded that the hearing to

reset the execution date was a procedural and ministerial act. The

hearing was not a resentencing and Judge McKittrick had no
jurisdiction to consider McKenzie's substantive claims relating to

the death penalty sentence itself. Likewise, those claims are not

properly before this Court on appeal.

, Justices

e
Hon. E'd P. McLean, District Judge
sitting for Justice Terry N.
Trieweiler
Justice W. William Leaphart, dissenting.

I dissent from the Court's dismissal of this appeal.
I would remand the case to the District Court for
consideration of appellant's contention that 20 years on death row
constitutes cruel and unusual punishment under the 8th Amendment to
the United States Constitution and Article II, Section 22 of the
Montana Constitution. This is an issue which at least two of the
Justices on the United States Supreme Court recently indicated
would "benefit from further study" by the lower state and federal
courts. Lackey v. Texas, United States Supreme Court, No. 94-8262
(March 27, 1995) (Justices Stevens and Breyer). While noting that
such a claim is "novel," the two Justices commented that it is "not
without foundation." They also noted that:
Though the importance and novelty of the question
presented by this certiorari petition are sufficient to
warrant review by this Court, those factors also provide
a principled basis for postponing consideration of the
issue until after it has been addressed by other courts.
[Emphasis added. 1
The Lackey case involves a defendant who has been on death
row for 17 years. Justices Stevens and Breyer suggest that, before
the Court can properly determine the merits of this argument, the
lower courts must first make a determination as to how much of that
I7-year time period is attributable to petitioner's abuse of the
judicial system through repetitive, frivolous filings and how much,
if any, is attributable to prosecutorial or institutional delay.
McKenzie, as of this date, has been under a death sentence since
1975--some 20 years. During the course of that 20-year period,
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McKenzie has pursued numerous appeals and petitions before this
court, the Ninth Circuit Court of Appeals and the United States
Supreme Court. At this juncture, we have no findings by the trial
court as to which of these various filings were frivolous and which
were meritorious. If it is assumed, arguendo, that Lackey may have
an argument based upon his 17-year wait on death row, McKenzie has
the potential for an even stronger argument. That argument,
however, cannot be adequately addressed until the trial court makes
some determinations as to which of McKenzie's numerous filings were
a legitimate exercise of the right of appeal and which constitute
frivolous filings. Obviously the Court cannot allow a defendant to
bootstrap himself into a cruel and unusual punishment argument by
abusing the system to his advantage through the repetitive filing
of meritless appeals and petitions.
While I do not necessarily agree that there is any merit to

McKenzie's argument, it is apparent to me that consideration of the
issue by the United States Supreme Court has presently been
"postponed" only, and it is merely a matter of time before the
federal courts are going to start subjecting death penalty cases to
the analysis suggested by Justices Stevens and Breyer in the Lackey
case. Accordingly, I would prefer that this issue be dealt with at
the earliest possible date rather than waiting for a remand from
the federal courts two years down the road--at which time McKenzie
will be in a position to argue an additional two years of delay.
The Court has taken the position that the substantive issues
raised by McKenzie's "Objection to Request for Execution Date"

13
(including the cruel and unusual punishment claim), are not proper
issues for appeal in the present context since the only issue
legitimately before the trial court was the request for a setting
of a date and time for execution--a purely ministerial (non-
substantive) act. Technically this may be correct. However, given
that this is a death penalty case and the condemned man is
purporting to raise constitutional issues--we should look to the
substance rather than the "technical" form of his pleading. For
example, in State v. Perry (1988), 232 Mont. 455, 758 P.2d 268,
Perry, who had been convicted of second-degree murder some 17 years
earlier in 1971, moved for a new trial based upon the alleged
recantation of an accomplice. The State contended that Perry's
only means of redress was a petition for post-conviction review and
that the statutory time limit on such petitions had expired as of
1978. This Court declined to adopt the State's position.
Whereas Perry's motion for a new trial cannot
technically be denoted a petition for habeas corpus, nor
do we treat it as such, the claim nevertheless sounds in
the nature of a petition for habeas corpus.
Perry, 750 P.2d at 273.
Despite the incorrect form of the "motion" pleading, the
Court addressed the substance of the motion and concluded that
Perry had failed to prove that he was the victim of an unlawful
conviction. Perry, 758 P.2d at 276.
McKenzie, like Perry, is well beyond the 5-year statutory
deadline for filing petitions for post-conviction review. Section
46-21-102, MCA. However, the argument as to whether a lengthy
delay before actual implementation of the death sentence
14
constitutes cruel and unusual punishment is a constitutional
argument which, by its very nature, cannot be raised until the
passage of a significant period of time.
In dismissing this appeal, the courts of the State of Montana
are sending this matter on to the federal courts without having
addressed this constitutional issue. I fear that we will have to
address it at some future point and that it will become all the
more thorny for the delay.

Justwe/ I