Grifaldo v. State

No 1 4 7 7 8

I N THE SUPREME COURT O F THE STATE O F MONTANA

1 97 9

GUADALUPE GRIFALDO ,

Petitioner,

-vs-

STATE O F MONTANA,

Respondent.

STEVEN R. VANDERBECK,
Petitioner,

STATE O F MONTANA,

Respondent.

ORIGINAL PROCEEDING:

C o u n s e l of R e c o r d :

For P e t i t i o n e r :

F r a n c i s J. C o n t e , Missoula, M o n t a n a

For R e s p o n d e n t :

M i k e G r e e l y , A t t o r n e y General, H e l e n a , M o n t a n a
H a r o l d Hanser, County Attorney, B i l l i n g s , Montana

S u b m i t t e d on B r i e f s , J u n e 1 5 , 1 9 7 9
JU&- 1979
*
Decided:

,279
Filed:
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.

These consolidated cases come before this Court on petition
for postconviction relief. Petitioners Grifaldo and Vanderbeck
each claim that he is entitled to designation as a "nondangerous

offender for purposes of parole eligibility" under the mandatory

provisions of section 95-2206.16(1), R.C.M. 1947, now section
46-18-404(1) MCA. Designation as a nondangerous offender
enables a prisoner to be eligible for parole after he has
served one-quarter of his sentence.

Grifaldo was charged with robbery, allegedly committed on
August 20, 1977. Grifaldo pleaded guilty, and on October 27,

1977, was sentenced by the Yellowstone County District Court

to fifteen years in prison. Vanderbeck was convicted by jury
verdict in the Yellowstone County District Court of aggravated

assault and unlawful restraint, allegedly committed on June
22, 1978. On November 1, 1978, Vanderbeck was sentenced to
eight years for aggravated assault and six months for unlawful
restraint, sentences to run concurrently.
During the five years preceding commission of their

offenses, neither Grifaldo nor Vanderbeck was convicted of,

or incarcerated for, an offense for which a sentence in excess
of one year could have been imposed. However, neither Grifaldo
nor Vanderbeck was designated a nondangerous offender for

purposes of parole eligibility.
On March 2, 1979, at the request of the Montana Department
of Institutions, the Montana Attorney General issued an opinion
relating to parole eligibility of prisoners. 38 Atty. Gen. Op.
No. 10. In pertinent part, the Attorney General held that a
prisoner serving a time sentence who was not expressly designated
"nondangerous" in connection with a crime committed after July 1,
-2-
1977, is ineligible for parole until he has served one-
half of his sentence, less good time. As a result, petitioners
were classified as ineligible for parole until one-half of
their sentences are served.
Parole eligibility is governed by section 95-3214(1),

R.C.M. 1947, now section 46-23-201(1) MCA, which provides:
". .. Subject to the following restrictions,
the board shall release on parole by appropriate
order any person confined in the Montana state
prison, except persons under sentence of death
and persons serving sentences imposed under
95-2206(3) (b), when in its opinion there is reason-
able probability that the prisoner can be released
without detriment to himself or to the community:

"(a) No convict serving a time sentence may be
paroled until he has served at least one-half
of his full term, less the good time allowance
provided for in 80-1905; except - - a convict
that
designated as a nondangerous offender under
- 206.16'= b e - paroled atter - - served one-
he has
quarter -------- the good time
of his full term, less
allowance wrovided - - - in 80-1905. Any offender
for
serving a iime sentence may be paroledLafter he
has served, upon his term of sentence, 17-1/2
years.
"(b) No convict serving a life sentence may be
paroled until he has served 30 years, less the
good time allowance provided for in 80-1905."
(Emphasis added. )
Petitioners contend that they are entitled to designation
as nondangerous offenders under section 95-2206.16(1), R.C.M.

1947, now section 46-18-404(1) MCA, which provides:
". . . The
sentencing court -
shall designate an
-
offender a nondangerous offender for purposes of
eligibility for parole under 95-3214 if:
"(a) during the 5 years preceding the commission
of the offense for which the offender is being
sentenced, the offender was neither convicted
of nor incarcerated for an offense committed in
this state or any other jurisdiction for which a
sentence to a term of imprisonment in excess of
1 year could have been imposed; -
or

" (b) the court has determined, based on any
presentence report and the evidence presented
at the trial and the sentencing hearing, that
the offender does not represent a substantial
danger to other persons or society." (Emphasis
added. )
 The State concedes that under the mandatory language
of the above statute petitioners are entitled to designation
as nondangerous offenders. The State argues, however, that
in declining to do so, the sentencing courts impliedly determined
that each petitioner represented a "substantial danger to other
persons or society" under subsection (b). The State therefore
urges that we remand these cases to the sentencing courts for
determination of whether each petitioners parole eligibility
should be limited pursuant to section 95-2206(3)(b), R.C.M.
1947, now section 46-18-202(2) MCA, up to one-half of their
sentences.
Section 95-2206(3)(b) permits the sentencing court to
impose the restriction that a defendant be ineligible for
parole for the full term of his sentence, not just half of
it. It states:
.
". . Whenever the district court imposes a
sentence of imprisonment in the state prison
-
for a term exceeding 1 year, the court may also
impose the restriction that the defendant be
ineligible for parole and participation in the
prisoner furlough program while serving his term.
If such a restriction is to be imposed, the
court shall state the reasons for it in writing.
If the court finds that the restriction is neces-
sary for the protection of society, it shall
impose the restriction as part of the sentence
and the judgment shall contain a statement of
the reasons for the restriction." (Emphasis
added. )
Under this provision, the sentencing court "may" impose the
restriction of parole ineligibility, but in so doing, it
must ("shall") state reasons for the restriction in writing.
We can no more adopt the implication urged by the State--
that failure or refusal to designate petitioners as nondangerous
offenders constituted a determination of their dangerousness--
than we can imply that failure to invoke section 95-2206(3)(b)
constituted a determination that restrictions on petitioners'
parole eligibility were inappropriate.
 Section 95-2206.16(1), R.C.M. 1947, now section
46-18-404(1) MCA, clearly provides that the sentencing

court "shall" designate an offender a nondangerous offender

-
if either of the conditions of subsection (a) "or" (b) are
met. This statute governed the District Court's conduct in
sentencing petitioners Grifaldo and Vanderbeck. Both Grifaldo
and Vanderbeck satisfied the condition specified in subsection

(a), and therefore, the sentencing courts erred in failing

to designate them as nondangerous offenders.

The cases are remanded to the sentencing courts with
directions to designate the petitioners as nondangerous
offenders for purposes of parole eligibility.

We Concur:

Chief Justice

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