State v. Wilson

NO. 95-475
IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

STATE CF MONTANA,
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plaintiff and Respondent, »@ ““~
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NICK LENIER WILSON, g_¢pg §,,,,E_;ZL Wr
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Dafendant and Appellant. `J$§§§E§E@@E§§§
APPEAL FROM: DiStrict C0urt of the Twentieth Judicial District,

In and for the C0unty of Lake,

The H0n0rable C. B. McNeil, Judge preSiding.

COUNSEL OF RECdRD:

F0r Appallant:

william P. H00kS, Appellate Defender, Helena,

MOntana

F0r ReSp0ndent:

H0n. JOSeph P. Mazurek, AEt0rney General; Micheal

WellenStein, ASSiStant Att0rney General,
M0ntana

Mitchell A. Y0ung, Daputy COunty Att0rney,

M0ntana

Submitted on BriefS: AuguSt l,

Decidad: Oct0ber 3l,

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Chief Justice J. A. Turnage delivered the Opinion of the Court.

Appellant Nick Wilsonf(Wilson) was convicted and sentenced in
the Twentieth Judicial District Court, Lake County, for burglary
and felony theft. The court designated wilson a dangerous offender
for purposes of parole eligibility and reserved the right to impose
additional conditions of probation to his suspended sentence.
wilson appeals his dangerous offender designation and the court‘s
reservation of right to impose additional conditions to his
sentence.

we order stricken the dangerous offender designation and the
District Court's reservation of right to impose additional
conditions and affirm the remaining provisions of the District
Court's judgment and sentence.

The dispositive issues presented for review are:

l. Did the District Court have the authority to designate
wilson a dangerous offender pursuant to § 46-18-404, MCA (l993),
which was in effect at the time Wilson committed his underlying
offenses, but had been repealed before his conviction and sentenc-
ing?

2. Did the District Court possess the statutory authority to
reserve the right to add_ conditions of probation. to Wilson's
suspended sentence?

FACTS

The facts of this case are undisputed. Nick Wilson was
charged in the Twentieth Judicial District Court, Lake County, with
burglary and felony theft committed on January 2i, l995. On March
29, l995, the State filed its notice of intent to seek to have

wilson sentenced as a persistent felony offender_ The notice

included copies of judgments of Wilson's two prior Montana felony

convictions--forgery' in_ Missoula County' in December l992, and
burglary in Ravalli County in June l993.

The Legislature repealed § 46-18-404, MCA (l993), on April i2,
1995 (See 1995 Mont. Laws, Ch. 3'72, § 12.). On May 16, 1995,
following trial, a jury found wilson guilty of burglary and felony
theft. A presentence investigation report revealed that wilson had
committed four prior felony offenses, including the burglary and
theft convictions contained in the State's persistent felony
offender notice.

The District Court held a sentencing hearing on June l4, l995.
At the hearing, the State recommended that wilson receive a
sentence of fifty years with ten years suspended for the burglary
and a sentence of fifty years with ten years suspended for the
felony theft. The State also recommended that the court designate
wilson a dangerous offender.

The District Court sentenced wilson to the Montana State
Prison for fifty years with ten years suspended for burglary and
fifty years with ten years suspended for felony theft, the
sentences to run concurrently3 Regarding wilson‘s parole eligibil~
ity, the court stated, "{T]he defendant is designated as a
dangerous offender based upon the Pre-sentence Report and the prior
offenses of the defendant.“

The court explained wilson's sentence by stating:

The reasons for the sentence are that the defendant has

committed four prior felonies. He has demonstrated an

absolute unwillingness to comply' with the rules and
conditions of society. He is a danger to society.

The District Court entered a written judgment on June l6,
l995. As reasons for its sentence, the District Court noted
wilson‘s four prior felonies and the fact that he "has demonstrated
no desire to conform to the rules of society and represents a
danger to society." The court also ordered that wilson's suspended
sentence be subject to numerous conditions, but reserved the right
to impose additional conditions of probation.

DlSCUSSION

l. Did the District Court have the authority to designate
wilson a dangerous offender pursuant to § 46-18-404, MCA (l993},
which was in effect at the time wilson committed his underlying

offenses, but had been repealed before his conviction and sentenc-
ing?

The District Court‘s decision that it was entitled to_

designate wilson a dangerous offender is a question of law. we
review questions of law to determine if the district court‘s
interpretations are correct. State v_ Long (i995), 274 Mont. 228,
236, 907 P.2d 945, 950.

wilson argues that the District Court lacked the statutory
authority to designate him a dangerous offender pursuant to § 46~
18-404, MCA (i993), because that statute was repealed by the 1995
Legislature before he was sentenced. The State counters that the
law in effect at the time of the commission of a crime controls as
to the possible sentence, citing State v. Finley (Mont. l996), 915
P.2d 208, 22l, 53 St.Rep. 3iO, 320, and State v. Azure (l978), 179
Mont. 28l, 282, 587 P.2d l297, l298. wilson argues that Finley

does not apply because § 46-18-404, MCA (l993), was repealed,

rather than amended, between the time he committed his underlying
offenses and was sentenced.

A district Court‘s authority to sentence a criminal defendant
is defined and constrained by statute. we have repeatedly held
that a district court has no power to sentence in the absence of
specific authorit5h LQng, 907 P.2d_ at 950 (citing State v.
Hatfield (l993) 256 MOnt. 340, 346, 846 P.2d lO25, lO29).

we have also held that the law in effect at the time of the
commission of the crime controls as to the possible sentence.
A;ure, 587 P.2d at l298. in g;p;§, the defendant appealed from a
sentence imposed following his conviction for mitigated deliberate
homicide. The amended statute eliminated or delayed his parole
eligibility. we held that the application of statutes enacted
after the offense had been committed was ex post facto. Azure, 587
P.2d at l29B.

ln State v. Suiste (l993), 261 MOnt. 25l, 255, 862 P.2d 399,
402, we held that the ban on ex post facto laws entitled the
defendant to he sentenced under the statute in effect at the time
of his original sentencingp In Rose v. McCormick (l992), 253 Mont.
347, 349, 834 P.2d l377, l378, we held that a defendant had to
serve one-half of his sentence before becoming eligible for parole
because he was not designated a nondangerous offender according to
the statute in effect at the time of his sentencing. we clarified
these holdings in Finley, concluding that we had reached the
correct conclusion in both cases, because "the statutes in effect

at the original sentencings were the same statutes that were in

effect at the time the crimes were committed." Finley, 915 P.2d at
221.

In Finley, the defendant committed his underlying offense on
August 20, ]_989. At that time, § 46~18~404, MCA (1979), did not
grant a district court authority to defer the designation of an
offender as dangerous or nondangerous. In l989, the Legislature
amended § 46-18-404, MCA (1979), to allow a district court to defer
a dangerous or nondangerous designation. The amendment became
effective on October 1, 1989. we held that the District Court did
not have the authority to defer Finley's dangerous designation
because the version of the statute in effect when Finley committed
his crimes did not grant such authority. Finley, 9l5 P.2d at 222.

The facts of this case are distinguishable from the authority
offered by either the State or wilson. ln §;gr§, the defendant was
sentenced according to a statute not in effect at the time the
underlying offense was committed. This violated the ban on ex post
facto legislation. That is not the situation here. Section 46-18-
404, MCA (1993), was in effect on January 21, 1995, when wilson
committed burglary and theft. The District Court sentenced wilson
according to the provisions of a statute which was in effect at the
time he committed his underlying offenses, but was repealed before
sentencing.

Likewise, Suiste and §Q§e are distinguishable from wilson‘s
situation. in Suiste and BQ§§, the sentencing statutes in effect
at the time of the defendants' original sentencings were identical

to the ones in effect at the time the defendants committed their

underlying offenses. See Finley, 915 P.2d at 221. In wilson's
case, the version § 46-18-404, MCA (1993), in effect at the time he
was sentenced was different from the version in effect when he
committed his underlying offenses.

Finley is not analogous to wilson's situation. Although the
general rule is that the law in effect at the time of the commis-
sion of the crime controls at sentencing, Finley, 915 P.2d at 221,
this rule applies when the law, although amended, is still in
effect at sentencing. The rule announced_ in Pinley; does not
address situations, such as wilson's, where a sentencing statute
has been repealed between the date a defendant commits his offense
and the date he is sentenced. In Finley, the dangerous offender
statute was amended to create an enhanced punishment between the
date of the commission of the defendant's underlying offense and
the defendant’s sentencing. In wilson's case, the dangerous
offender statute was repealed and could result in a ndtigated
punishment.

The issue raised by wilson, while one of first impression in
Montana, has been addressed elsewhere. ln in re Estrada (Cal.
l966), 408 P.2d 948, the California Legislature amended a statute
which reduced the time a defendant had to spend in prison before
becoming eligible for parole. The statutory amendment became
effective after the defendant had committed his underlying criminal
offense, but before the defendant's trial, conviction, and

sentencing¢ The Supreme Court of California held that the

defendant was entitled to be sentenced according to the ameliora-
tive terms of the amended statute. Estrada, 408 P.2d at 951.

in reaching its conclusion, the 8upreme Court of California
focused on two issues. First, it determined the legislative intent
of the amended statute. The court concluded:

when the Legislature amends a statute so as to lessen the

‘punishment it has obviously expressly determined that its

former penalty was too severe and that a lighter punish-

ment is proper as punishment for the commission of the

prohibited act. it is an inevitable inference that the

Legislature must have intended_ that the new statute

imposing the new lighter penalty now deemed to be

sufficient should apply to every case to which it
constitutionally could apply.
Estrada, 408 P.Zd at 95l.

Second, the court explained why it could reach its conclusion
despite the provisions of Section 3 of the Penal Code1 and Section
9608 of the Government Code3, which arguably required the court to
find that the Legislature intended the old law to apply. The
language of Section.3 is identical to that of § 1-2-109, MCA, which

states, "No law contained in any of the statutes of Montana is

retroactive unless expressly so declared." Section 9608 of the

1 Section 3 of the Penal Code provides that no part of the

Penal Code "is retroactive, unless expressly so declared." Cal.
Penal Code § 3 (west 1995).

2 Section 9608 of the Government Code provides: "The
termination or suspension (by whatsoever means effected) of any law
creating' a criminal offense does not constitute a bar to the
indictment or information and punishment of an act already
committed in violation of a law so terminated or suspended, unless
the intention to bar such indictment or information and punishment
is expressly declared by an applicable provision of law.“ Cal.
Gov't § 9608 (west l995).

Government Code is also similar to the language of § 1“2-205, MCA,
Montana's savings clause. Section 1-2-205, MCA, states:

The repeal of any law creating a criminal offense does

not constitute a bar to an indictment or information and

the punishment of an act already committed in violation

of the law so repealed unless the intention to bar such

indictment or information and punishment is expressly

declared in the repealing act.

The Supreme Court of California opined that Sections 3 and
9608 did not apply to situations where an amended statute mitigates
punishment and does not contain a savings clause. it stated:

A reading of [section 9608] demonstrates that the

Legislature, while it positively expressed its intent

that an offender of a law that has been repealed or

amended should be punished, did not directly or indirect-

ly indicate whether he should be punished under the old

law or the new one. As has already been pointed out,

where the amendatory statute mitigates punishment and

there is no savings clause, the rule is that the amend-

ment will operate retroactively‘ so that the lighter

punishment is imposed.
Estrada, 408 P.2d at 953 (emphasis added).

we find the reasoning of Estrada persuasive. Although Estrada
discusses the effects of an amended statute which_ mitigates
punishment, its reasoning also applies to a repealed statute, such
as § 46-18-404, MCA (1993), which mitigates a defendant's sentence
by eliminating his dangerous offender designation.

Section 1-2-205, MCA, refers only to the “law creating a
criminal act," and does not apply to sentencing statutes. when the
1995 Legislature repealed § 46-18-404, MCA (1993), without a

savings clause, it did not indicate under what law a defendant who

committed a criminal offense prior to the repeal should be

punished. Absent such a savings clause, we are left in the same
situation as Estrada.

we hold that when a sentencing statute:

(1) is repealed between the date a defendant commits the
underlying offenses and is sentenced; and
(2) where the effect of the repeal lessens or
ameliorates the defendant's punishment; and
(3) where the repealer contains no savings clause;
the defendant is entitled to be sentenced according to the
sentencing statute in effect on the date of sentencing.

when the District Court designated wilson a dangerous
offender, the statute authorizing that designation was repealed.
Accordingly, there was a clear absence of statutory authority to
impose the dangerous offender designation. without statutory
authority' to impose the sentence that it did, the dangerous
offender designation was unlawful and must be vacated. LQng, 907
P.2d at 950; I-Iatfield, 846 P.Zd at 1029.

Because we so hold, we need not address the issue of whether
the District Court adequately explained the reasons for designating
wilson as a dangerous offender.

2. Did the District Court possess statutory authority to
reserve the right to add conditions of probation. to wilson‘s
suspended sentence?

wilson argues, and the State concedes, that the District Court

lacked statutory authority to reserve the right to add conditions

to wilson's probation.

10

A district court has no power to impose a sentence in the
absence of specific statutory authority. Hatfie1d, 846 P.2d at
1029; LQng, 907 P.2d_ at 950. A_ condition_ not specifically
authorized by statute will be reversed. Hatfield, 846 P.2d at 346;
Lo?ng_, 907 P..'Zd at 951.

A district court may not sentence a defendant to a term of
imprisonment and reserve the right to impose additional restric-
tions during the defendant's probation. Conditions of a defen-
dant's probation should be imposed at sentencing. if a court
finds, after a hearing, that a defendant has violated the terms and
conditions of a suspended sentence, the court may continue the
suspended sentence with modified or additional terms and condi-
tions. Section 46-18-203(7), MCA.

This case does not concern wi1son's violating the terms and
conditions of his suspended sentence. Rather, the District Court
engaged in piecemeal sentencing when it reserved the right to add
conditions to wilson's parole at a later date. we conclude that
the District Court lacked the statutory authority at sentencing to
reserve the right to impose additional conditions on_ wilson‘s
probation.

we therefore order stricken from the District Court‘s June 16,
1995, judgment that portion of wilson's sentence where the District
Court designated wilson as a dangerous offender and reserved the

right to impose additional conditions on his probation at a later

ll

date. The remaining provisions of the District Court‘s judgment

and sentence are affirmed.

Chief dust

we concur:

Justices

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