State v. Brendal

July 21 2009

DA 08-0324

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 236

STATE OF MONTANA,

Plaintiff and Appellee,

v.

LAURA BRENDAL,

Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC-2007-020
Honorable John W. Larson, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Kathleen Foley (argued), Attorney at Law, Missoula, Montana

For Appellee:

Hon. Steve Bullock, Montana Attorney General; Matthew T. Cochenour
(argued), Assistant Attorney General, Helena, Montana

Argued and Submitted: May 20, 2009

Decided: July 20, 2009

Filed:

__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 Laura Brendal (Brendal) appeals from her sentence in the Fourth Judicial District

Court. Brendal pleaded guilty to fraudulently obtaining dangerous drugs (second

offense), a felony in violation of § 45-9-104, MCA, and was sentenced to the Montana

Women’s Prison (MWP) for a period of 25 years, with 15 suspended. Prior to her

sentencing, the State notified Brendal of its intent to have her sentenced as a persistent

felony offender (PFO) pursuant to § 46-18-501, MCA, based on prior convictions for

fraudulently obtaining dangerous drugs. The District Court sentenced Brendal as a PFO,

and imposed a mandatory minimum of 10 years in prison. Brendal maintains that the

District Court was proceeding under a mistake of law when it imposed this sentence, and

that it should have considered sentencing her to a drug treatment program pursuant to its

authority under the alternative sentencing authority (ASA) statute, § 45-9-202, MCA.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 On December 31, 2006, Officer Trowbridge of the Missoula Police Department

responded to a report that a female was trying to obtain drugs with a fraudulent

prescription at a Walgreen’s pharmacy in Missoula. Officer Trowbridge’s investigation

led to the arrest of Brendal, who was subsequently charged with one felony count of

fraudulently obtaining dangerous drugs on January 16, 2007. Brendal initially pleaded

not guilty to the charge.

¶3 Brendal subsequently filed a motion to suppress. On October 19, 2007, the State

notified Brendal that it would seek increased punishment pursuant to the PFO statutes,

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codified in Title 46, chapter 18, part 5. Prior to the instant charge, Brendal had

previously been convicted of fraudulently obtaining dangerous drugs on nine occasions.

Two of the most recent two convictions had occurred on December 17, 2003.

Accordingly, Brendal could be sentenced as a PFO under § 46-18-502(2), MCA, since

these two convictions had occurred within 5 years of the instant charge. The relevant

portion of that statute reads as follows:

(2) Except as provided in 46-18-219, an offender shall be imprisoned
in a state prison for a term of not less than 10 years or more than 100 years
or shall be fined an amount not to exceed $50,000, or both, if:
(a) the offender was a persistent felony offender, as defined in
46-18-501, at the time of the offender’s previous felony conviction;
(b) less than 5 years have elapsed between the commission of the
present offense and:
(i) the previous felony conviction; or
(ii) the offender’s release on parole, from prison, or from other
commitment imposed as a result of the previous felony conviction; and
(c) the offender was 21 years of age or older at the time of the
commission of the present offense.
(3) Except as provided in 46-18-222, the imposition or execution of
the first 5 years of a sentence imposed under subsection (1) of this section
or the first 10 years of a sentence imposed under subsection (2) of this
section may not be deferred or suspended.

Section 46-18-502(2) and (3), MCA.

¶4 After the District Court denied her motion to suppress, Brendal entered a plea of

guilty. At that time, the State again provided noticed that it sought to sentence Brendal as

a PFO. A sentencing hearing was held on May 7, 2008. Prior to the hearing, Brendal

was arrested on March 24, 2008, by her pretrial supervision officer for allegedly trying to

alter the results of a urinalysis test by substituting another person’s urine for her own.

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¶5 At the sentencing hearing, Brendal argued that she should receive a 5 to 10 year

suspended sentence and be sent to the Teen Challenge residential drug addiction

treatment program in Missoula, instead of being incarcerated in the MWP.1 Brendal

presented four witnesses in support of her sentencing proposal. Brendal argued that the

ASA statute gave the District Court the discretion to consider such a sentencing option,

and that it was not required to sentence her as a PFO and impose the 10-year mandatory

minimum. The ASA statute reads in pertinent part as follows:

45-9-202. Alternative sentencing authority. (1) A person convicted
of a dangerous drug felony offense under this chapter may, in lieu of
imprisonment, be sentenced according to the alternatives provided in
subsection (2).
(2) If the court determines, either from the face of the record or from
a presentence investigation and report, that incarceration of the defendant is
not appropriate, the court may, as a condition of a suspended or deferred
sentence, impose one or more of the following alternatives:
(a) imposition of a fine not to exceed the maximum amount provided
by statute for those offenses that specify a fine as part of the penalty or
$1,000 for those offenses that do not specify a fine;
(b) commitment to a residential drug treatment facility licensed and
approved by the state for rehabilitative treatment for not less than the
minimum recommended time determined necessary by the facility and not
more than 1 year;
(c) mandatory service of not more than 2,000 hours in a community-
based drug treatment or drug education program with compliance to be
monitored by the probation and parole bureau of the department of
corrections based upon information provided by the treatment or education
program . . . .

¶6 The State asserted that the District Court was required to sentence Brendal as a

PFO, and was therefore without the discretion to deviate from the mandatory minimum

found in § 46-18-502(2), MCA. Brendal did not challenge the evidence in support of her

1
The Teen Challenge program treats adults as well as teenagers.

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designation as a PFO, or otherwise argue that any of the statutory exceptions in

§ 46-18-222, MCA, applied; rather, she asserted that the ASA statute was a more specific

statute in this case—as it related specifically to the type of drug offense for which she

was being sentenced—and that the District Court was not precluded from sentencing her

under the ASA statute.

¶7 The District Court ultimately sentenced Brendal to 10 years at the MWP,

concluding that the statutory scheme required it to impose the mandatory minimum. In

imposing the sentence, the District Court judge reasoned that he was required to impose

the mandatory minimum sentence, since there was no factual dispute as to the

applicability of the PFO statutes and her case did not fall into one of the exceptions listed

in § 46-18-222, MCA. See Opinion, ¶ 3. Furthermore, the District Court specifically

concluded that incarceration would be appropriate for Brendal. The District Court noted

that Brendal had been appearing before it on and off since 1996 and that the District

Court had imposed a variety of sentences, but had failed to reach the “right mix” so that

Brendal would be able to succeed in the community. The District Court observed that the

MWP had an approach to treating chemical dependency which would be appropriate for

Brendal, and that she could be considered for participation in the Teen Challenge

program, or other applicable program, upon her parole. The District Court noted that the

length of the sentence imposed was a reflection of her long-standing problem with drugs,

and specifically noted that incarceration at the MWP would keep her “safe.”

You’re not going to be found some morning by your daughter or
some other relative dead in the community, which has happened a lot here,
and so you’re going to be safe. You’re going to be in a program that tries

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 to utilize all the modern strategies to get you off opioids and become a
productive member of society.
. . .

So my sentence is designed to be the least amount of time available
that I think to make sure that you’re protected, the community is protected,
and your family has someone that they can enjoy over a longer period of
time.

In its written order issued after the pronouncement of sentence, the District Court set

forth further factual findings in support of its decision to incarcerate Brendal. These

included her extensive criminal history, extreme difficulty in rehabilitation, and the

conclusion that her needs would be better served in a prison or correctional center as

opposed to a community facility.

¶8 Brendal now appeals from this sentence. She maintains that the District Court was

proceeding under an error of law when it imposed this sentence and reasoned that it had

no choice but to impose the mandatory 10-year sentence under the PFO statutes. Brendal

argues that the ASA statute is more specific than the PFO statutes and gives the District

Court the authority to consider sentencing her to the Teen Challenge program. Brendal

argues her sentence should be reversed and remanded for the District Court to consider

giving her an alternative sentence in accordance with its authority under the ASA statute.

¶9 The State urges us to affirm. The State argues that the District Court’s sentence

was statutorily authorized and legal, and that the District Court correctly determined an

alternative sentence was not available to Brendal, since none of the exceptions listed in

the PFO statutes applied. The State also asserts that the District Court found that

6
incarceration was appropriate for Brendal, and that an alternative sentence under the ASA

statute was not available to her.

¶10 We state the issue presented by Brendal’s appeal as follows:

Did the District Court err in sentencing Brendal to the mandatory minimum under

the PFO statutes?

STANDARD OF REVIEW

¶11 We review a criminal sentence for legality only, to determine whether the sentence

falls within statutory parameters. State v. Clark, 2008 MT 112, ¶ 8, 342 Mont. 461, 182

P.3d 62. We review a district court’s findings of fact to determine whether they are

clearly erroneous. State v. Dunkerson, 2003 MT 234, ¶ 14, 317 Mont. 228, 76 P.3d 1085.

“In Montana, criminal sentencing alternatives are strictly a matter of statute. Our

standard of review, therefore, includes the question of whether the district court correctly

applied the applicable statutes.” State v. Shults, 2006 MT 100, ¶ 34, 332 Mont. 130, 136

P.3d 507 (citing State v. Alden, 282 Mont. 45, 49, 934 P.2d 210, 213 (1997)).

DISCUSSION

¶12 Brendal argues the District Court’s interpretation of the PFO and ASA statutes

was incorrect, and that the District Court could have committed her to the Teen

Challenge drug treatment program pursuant to its authority under the ASA statute.

Brendal argues the ASA statute is specifically tailored to the drug offense for which she

was convicted, and is more specific to her case than the PFO statutes. Brendal argues

that the treatment-related sentencing options provided under the ASA statute were

enacted to apply to defendants, like her, whose crimes appear related to addiction rather

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than criminal predilection. The PFO statutes, by contrast, are general sentencing statutes

for those designated as PFOs, without regard to the crime or crimes for which they were

convicted. Brendal argues that since the PFO statutes and the ASA statute clash in this

case, the PFO statutes must yield to the ASA statute. Brendal asserts that it would be

illogical and contrary to principles of statutory interpretation to allow the more general

statutes, i.e., the PFO, to limit the applicability of the ASA statute in this case given its

specific and precise application.

¶13 Brendal further notes that the annotations to the ASA statute specifically state that

the legislative purpose behind it was “to provide a curative, rather than purely punitive,

sentencing possibility where the drug use by the defendant approaches or amounts to

addiction.” Here, Brendal argues that evidence of her chronic addiction to prescription

drugs as presented to the District Court was both extensive and unchallenged, thus further

demonstrating the application of this statute in her case. Additionally, Brendal argues

that the ASA statute contemplates applying alternative sentences to repeat drug offenders

without any qualification, and that it would be illogical to suggest that it applies only to

repeat drug offenders whose last conviction or discharge date would place them outside

the reach of the PFO statutes.

¶14 The State urges us to affirm. First, the State argues that Brendal’s sentence was

legal because it fell within the statutory parameters for her crime. The State points out

that Brendal satisfies the definition of a PFO, and that the District Court was statutorily

authorized to impose its sentence. Second, the State maintains that the ASA statute is

simply inapplicable to Brendal in this case. The State notes that the ASA statute does not

8
apply as a factual matter because the District Court specifically found that incarceration

at MWP would be an appropriate sentence given Brendal’s long history of offenses and

pattern of chronic drug use.

¶15 Additionally, the State argues that as a matter of statutory interpretation and

application, the alternative sentences under the ASA statute are not available to Brendal

given her designation as a PFO and the fact that the PFO statutes do not authorize an

exception to the mandatory minimums under the ASA statute. The State notes that while

the PFO statutes include exceptions from the mandatory minimum sentence pursuant to

§ 46-18-222, MCA, none of those exceptions are applicable in the instant case.2 Since

the State sought to sentence Brendal as a PFO and she met the designation, the State

argues that she could be exempt from the mandatory minimum only if she met one of

these statutory exceptions.

¶16 The State further asserts that the PFO and ASA statutes are not in conflict. The

State asserts that the ASA statute gives district courts the ability to impose a non-prison

sentence on a repeat felony offender, provided he or she does not fall into the narrow,

time-dependent definition of a PFO. So long as a repeat offender is not sentenced as a

PFO, then the ASA statute can apply. If, however, the offender meets the PFO definition

and the State seeks to sentence her as such, then the district court is required to impose

the mandatory minimum and cannot rely upon the ASA statute. Accordingly, the State

2
Section 46-18-222, MCA, provides exceptions to the mandatory minimum under a variety of
circumstances not present in the instant case.

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argues that the ASA and PFO statutes are not actually in conflict, as claimed by Brendal,

but are simply designed to apply in different sentencing situations.

¶17 Alternatively, if these statutes are perceived to be in conflict, the State argues that

the PFO statutes would nonetheless control because they are more specific than the ASA

statute. In this connection, the State notes that the PFO statutes are triggered only when

an offender commits a second felony within a relatively short period of time. With

respect to drug felonies, the State argues that the ASA statute applies to a broad spectrum

of crimes whereas the PFO statutes apply only to those specific drug felonies committed

within 5 years of a previous felony or release from a commitment which resulted from a

previous felony.

¶18 “When possible, we interpret statutes to give effect to the Legislature’s intent. We

will also read and construe the statute as a whole to avoid an absurd result and to give

effect to a statute’s purpose.” In re Marriage of Shirilla, 2004 MT 28, ¶ 12, 319 Mont.

385, 89 P.3d 1 (citing § 1-2-102, MCA). This Court operates under the presumption that

the Legislature does not pass meaningless legislation, and we will harmonize statutes

relating to the same subject in order to give effect to each statute. Oster v. Valley Co.,

2006 MT 180, ¶ 17, 333 Mont. 76, 140 P.3d 1079. This Court also presumes that the

Legislature acts with deliberation and full knowledge of all existing laws on a subject.

Ross v. City of Great Falls, 1998 MT 276, ¶ 17, 291 Mont. 377, 967 P.2d 1103. In

situations where general and specific statutes exist and the two cannot be harmonized to

give effect to both, the specific statute controls. State v. Oie, 2007 MT 328, ¶ 17, 340

Mont. 205, 174 P.3d 937.

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¶19 By virtue of its plain language and its location in the criminal code, it is patent that

the ASA statute was specifically enacted by the Legislature to give district courts

alternatives to imprisonment for individuals convicted of the dangerous drug offenses in

Title 45, chapter 9. See § 45-9-202(1), MCA. The ASA statute was initially enacted in

1969, and has undergone a series of refinements over the years. See 1969 Mont. Laws

771; 1991 Mont. Laws 3129-31. The annotator’s note to the ASA statutes states that its

purpose is to provide “alternative rehabilitative sentencing authority” to district courts for

individuals who commit these drug offenses and to provide a “curative, rather than purely

punitive, sentencing possibility where the drug use by the defendant approaches or

amounts to addiction.” In order for the ASA statute to apply, the offender must have

committed one of these offenses, and the district court must determine that the

incarceration of the defendant is not appropriate. See § 45-9-202(2), MCA.

¶20 The PFO statutes occur in Title 46, the “criminal procedure” section of the

criminal code, and are not specific to any particular offense. PFO statutes impose

mandatory minimum sentences if the offender meets the PFO criteria, save for the

exceptions enumerated in § 46-18-222, MCA. The PFO statutes were originally enacted

in 1973, four years after the ASA statutes. See 1973 Mont. Laws 1399-1400. Initially,

the PFO statutes did not provide for any exceptions to the mandatory minimum

sentences. Over the years, however, the PFO statutes were amended to provide

exceptions in certain situations. See 1977 Mont. Laws 1962, 1965; 1981 Mont. Laws

517. The present form of § 46-18-222, MCA, was enacted by the Legislature in 2007.

See 2007 Mont. Laws 2171-72.

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¶21 Our previous case law has not been entirely clear on the question of whether the

PFO statutes are designed to give district courts additional sentencing options, or whether

the State’s decision to seek PFO sentencing effectively divests district courts of

sentencing discretion if the PFO criteria are established. In State v. Damon, 2005 MT

218, 328 Mont. 276, 119 P.3d 1194, for instance, a defendant convicted of driving under

the influence (DUI) was sentenced as a PFO. He contended that the specific sentencing

provisions of the DUI statutes, see § 61-8-731, MCA, should have applied and precluded

the enhanced punishment available under the PFO statutes. Damon, ¶ 35. This Court

disagreed. While we noted that the DUI statutes had specific sentencing provisions

which were at odds with those set forth in the PFO statutes, we held that the sentences in

the PFO were applicable.

We follow the basic principle of statutory construction that “[w]here
there are several provisions or particulars, such a construction is, if
possible, to be adopted as will give effect to all.” Section 1-2-101, MCA.
In general, the persistent felony offender statute, § 46-18-502, MCA,
conflicts with all specific sentencing provisions. Indeed, by its very
purpose § 46-18-502, MCA, provides penalties that are more severe, and
therefore inconsistent, with specific criminal statutes. But the question is
not whether the sentencing provisions of specific crimes are inconsistent
with § 46-18-502, MCA. The question is whether “the underlying charge
meets the definition of a felony, and the State has provided proper notice of
its intent to seek persistent felony offender status.”

Damon, ¶ 39 (quoting State v. Yorek, 2002 MT 74, ¶ 18, 309 Mont. 238, 45 P.3d 872).

¶22 We held that the DUI statutes fell with the ambit of the PFO statute, and stated

that “[a] district court possesses the authority to designate and sentence a persistent

felony offender pursuant to § 46-18-502, MCA, when the underlying charge meets the

definition of a felony and the State has provided proper notice of its intent to seek

12
persistent felony offender status under § 46-13-108, MCA.” Damon, ¶ 37 (emphasis

added); accord State v. Mainwaring, 2007 MT 14, ¶ 15, 335 Mont. 322, 151 P.3d 53.

This language from Damon seemingly implies that the PFO statutes give the district

courts additional authority, but does not necessarily compel the conclusion that the PFO

statutes strip the district courts of their ability to consider other statutory alternatives.

¶23 In Shults, a case subsequent to Damon, the defendant (Shults) was convicted of

theft and an escape which did not involve the use of force, and sentenced as a PFO based

on previous felony convictions. Shults, ¶ 11. Shults, like Brendal here, had a lengthy

criminal history. On appeal, Shults argued that the district court had violated

§ 46-18-225(1), MCA, which required the district court to first consider alternatives to

imprisonment in the sentencing of non-violent felony offenders. Shults, ¶ 35. Shults

asked this Court to remand his sentence for further consideration of such an alternative

sentence. Shults, ¶ 36. We rejected his argument as follows:

We have previously held that a district court is granted broad
discretion to determine the appropriate punishment, as it is in the best
position to weigh the evidence, judge the credibility of witnesses, and
resolve conflicts in the evidence. Alden, 282 Mont. at 51, 934 P.2d at 214.
In this case, the District Court provided a ten-page statement explaining its
reasons for imposing a sentence of lengthy incarceration in MSP. . . .
In light of the above, it is clear that the court considered alternatives
to imprisonment, as mandated by § 46-18-225, MCA, and explained why it
chose to impose incarceration rather than alternative punishment. We
therefore hold that the findings on which the court based its sentence were
not clearly erroneous and that the court did not err when it sentenced Shults
to a term of imprisonment.

Shults, ¶¶ 37-38.

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¶24 Notably, in Shults, we did not hold that the district court was precluded from

considering alternatives to imprisonment because the State sought to sentence Shults as a

PFO. Instead, we apparently recognized the statutory authority of the district court to

consider alternatives to imprisonment before agreeing with the State’s efforts to sentence

Shults as a PFO.

¶25 The difference between Shults and the present case is that the District Court here

did not consider alternatives to imprisonment. As Brendal points out, the District Court

did observe that it felt bound to sentence her as a PFO, given that the State sought a PFO

designation and she met the statutory criteria. Notwithstanding this observation,

however, it is clear from the hearing transcript and the District Court’s written findings

that the District Court concluded incarceration was appropriate for Brendal. Had the

District Court concluded otherwise, it could have stated as much for the record and then

imposed incarceration on the premise that the PFO statute forced the court’s hand.

However, the District Court did no such thing, choosing instead to elaborate upon the

reasons it felt incarceration was necessary for Brendal’s health and safety. See Opinion,

¶ 7. Because the ASA statute is invoked only if and when a court concludes that

incarceration is not appropriate, see § 45-9-202(2), MCA, we conclude for the foregoing

reasons that nothing in the District Court’s reasoning supports application of that statute

to Brendal. Thus, the District Court did not err in sentencing Brendal to incarceration at

MWP.

¶26 As a matter of statutory construction, however, the District Court could have

sentenced Brendal under the ASA to a treatment program if it had determined that

14
incarceration was not appropriate. Under the PFO provisions, if the prosecution “seeks

treatment of the accused as a persistent felony offender,” notice must be given. Section

46-13-108(1), MCA. After a hearing, if the judge finds any allegations of the prior

convictions are true, “the accused must be sentenced as provided by law.” Section

46-13-108(4), MCA. Both the ASA and PFO statutes set forth sentencing provisions that

are “provided by law.”

¶27 As noted above, when a general statute conflicts with a more specific statute, the

more specific statute controls. Oie, ¶ 17; § 1-2-102, MCA. The ASA statute was enacted

specifically to apply to drug offenses and is codified as Part 2 of the statutory scheme

pertaining to drug offenses. Section 45-9-202(1), MCA, states:

A person convicted of a dangerous drug felony offense under this chapter
may, in lieu of imprisonment, be sentenced according to the alternative
provided in subsection (2).

¶28 Thus, on the question of which statute is more “specific” in this case, the ASA

statute controls because it was specifically enacted to provide an alternative to

imprisonment only for those convicted of drug offenses under Title 45, chapter 9. The

PFO statutes, by contrast, are more general because they apply to all criminal offenses,

regardless of where they occur in Title 45.

¶29 The statutory schemes can also be reconciled another way. It has long been a

maxim of jurisprudence that courts should harmonize statutes relating to the same

subject. Oster, ¶ 17. “Where there are several provisions or particulars, such a

construction is, if possible, to be adopted as will give effect to all.” Section 1-2-101,

MCA. The provisions of the PFO statutes provide for imprisonment once a PFO

15
designation has been made. The ASA provisions are permissive. The defendant “may, in

lieu of imprisonment, be sentenced according to the alternatives” provided under the

ASA statute, if the district court finds that incarceration is inappropriate. Section

45-19-202(1), (2) MCA.

¶30 Holding that the District Court could have imposed a sentence under the ASA

statute is a construction that gives effect to both statutes at issue here, as the District

Court would have the ability to sentence under either scheme. On the other hand, holding

that the PFO statutes are more specific and thus control to the exclusion of the ASA, does

not give effect to both statutes as it precludes the opportunity to sentence under the ASA

statute, even if a district court determines as a factual matter that incarceration is not

appropriate. Under this construction, as urged by the State, the whole purpose of the

ASA statute is unnecessarily defeated.

¶31 Thus, in the interests of harmonizing the PFO and ASA statutes in a manner that

gives effect to them both, we hold the District Court could have sentenced Brendal under

the ASA statute if it had determined that incarceration was inappropriate, in spite of the

fact that the State sought to sentence her under the PFO statutes and she met the required

PFO designation.

CONCLUSION

¶32 For the foregoing reasons, we affirm the District Court. However, we further hold

that the PFO statutes do not preclude a district court from providing an alternative

sentence under the ASA statute for an individual convicted of a drug-related offense in

16
Title 45, chapter 9, provided the required criteria to impose an alternative sentence are

satisfied.

/S/ PATRICIA COTTER

We concur:

/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS

Justice John Warner concurs.

¶33 I agree that Brendal’s sentence should be affirmed. However, I disagree with the

Court’s analysis.

¶34 In my view, the alternative sentencing authority statute does not override the

mandatory language of the persistent felony offender statute and only provides an

alternative when a person is not designated a persistent felony offender. The plain,

mandatory language of the persistent felony offender statute reveals a legislative intent to

sentence individuals more strictly who repeatedly commit felonies within a given time

period. The legislature contemplated exceptions, as provided by the persistent felony

offender statutes, however, none of the exceptions apply to Brendal’s situation.

¶35 I agree with the District Court that when an offender is designated a persistent

felony offender and meets the statutory criteria, the court is bound to sentence under the

persistent felony offender statute. Once the State files its notice that it is seeking a

persistent felony offender designation, the defendant has the opportunity to object to the

allegations and the court determines if the allegations are true. If the allegations are true,

17
the “accused must be sentenced as provided by law.” Section 46-13-108(3), (4), MCA.

The persistent felony offender statute provides, “[A] persistent felony offender shall be

imprisoned . . . .” Section 46-18-502(1), MCA. This language removes the district court’s

sentencing discretion once a defendant is designated a persistent felony offender and

precludes it from considering alternative sentences. As we have explained in our prior

cases, that once a person is designated a persistent felony offender, all of the other

sentencing statutes are superseded by § 46-18-502, MCA, because the persistent felony

offender statute does not make a distinction between the types of felonies to which it

applies. See State v. Damon, 2005 MT 218, ¶ 39, 328 Mont. 276, 119 P.3d 1194; State v.

Yorek, 2002 MT 74, ¶ 18, 309 Mont. 238, 45 P.3d 872 (followed in State v. Pettijohn, 2002

MT 75, ¶¶ 12-14, 309 Mont. 244, 45 P.3d 870).

¶36 The Court should not strain so mightily to harmonize § 45-9-202, MCA, the

alternative sentencing authority statute, with the persistent felony offender statutes--they

are written to dove-tail each other. The scheme is meant to be simple. When an offender

is designated a persistent felony offender, § 45-9-202, MCA, is superseded and he or she is

sentenced under § 46-13-108(3), (4), MCA.

¶37 I concur with the result, but would affirm Brendal’s sentence on different grounds.

/S/ JOHN WARNER

Justice Jim Rice joins in the foregoing concurrence.

/S/ JIM RICE

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Justice Jim Rice, concurring.

¶38 I agree with Justice Warner’s concurrence and offer these additional thoughts.

The Court’s treatment of the PFO statutes is not a fair one. The Court selectively quotes

from § 46-13-108(4), MCA, which provides that the accused must, after the PFO process

has been completed, be sentenced as “provided by law.” Seizing upon this phrase in

isolation, the Court then leaps to the conclusion that it could mean either the ASA or the

PFO statutes, as both are “provided by law.” This is hardly a justifiable interpretation,

which should be obvious for a fair reading of the entire PFO provision.

¶39 Section 46-13-108(1), MCA, instructs that “if the prosecution seeks treatment of

the accused as a persistent felony offender,” the prosecutor must first give notice of that

fact at or before the omnibus hearing. (Emphasis added.) Subsection 108(2) provides

that the notice must specify the accused’s prior convictions. Subsection 108(3) provides

that the court may conduct a hearing to determine if the allegations in the notice are true.

Then, subsection (4) provides that “[i]f the judge finds any allegations of the prior

convictions are true, the accused must be sentenced as provided by law.” (Emphasis

added.)

¶40 This statute sets forth the PFO procedural process, initiated by a prosecutor who

“seeks treatment of the accused as a PFO” and, upon completion, clearly leads to a

mandatory sentence—the accused “must be sentenced” as a PFO. The Court’s assertion

that this PFO process leads to the ambiguous conclusion that an accused can be sentenced

under any sentencing statute—and that a PFO sentence can then be rejected by the

sentencing court—is untenable.

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¶41 I concur in the result but dissent from the Court’s statutory interpretation.

/S/ JIM RICE

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