IN THE SUPREMECOURT OF THE STATE OF MONTANA
NO. 93-395
LARRY T. MOORE,
Petitioner,
-v-
JACK MCCORMICK, Warden of the
Montana State Prison,
Respondent.
Larry T. Moore, Petitioner herein, has filed his application
requesting that this Court issue a writ of habeas corpus.
Petitioner is presently incarcerated at the Montana State Prison as
a result of his conviction of the offense of deliberate homicide,
a felony, in violation of 5 45-5-102(1)(a), MCA, following a jury
trial in Gallatin County on October 22, 1992 to November 23, 1992,
and the subsequent revocation of his bond. Petitioner claims that
he is unlawfully held because he has been denied bail pending
appeal by the District Court and that such denial is erroneous as
a matter of law. He asks this Court to review the question of bail
independently, pursuant to § 46-22-103, MCA, which provides:
Writ for purpose of bail. When a person is imprisoned or
detained in custody on any criminal charge for want of
bail, such person is entitled to a writ of habeas corpus
for the purpose of giving bail upon averring that fact in
his petition, without alleging that he is illegally
confined.
The appropriate standard of review when considering the denial
of an application for bail pending appeal is whether the district
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court abused its discretion in denying the application. Absent
such abuse, this Court will not interfere. State ex rel. Bretz v.
Sheriff of Lewis & Clark County (1975), 167 Mont. 363, 365, 539
P.2d 1191, 1192.
Petitioner argues that since he was released on bail prior to
his conviction and since he was designated as a non-dangerous
offender for purposes of eligibility for parole at sentencing, he
is entitled to bail pending appeal by reason of 55 46-g-107 and 46-
20-204, MCA.
Section 46-g-107, MCA, provides:
Release or detention pending appeal -- revocation --
sentencing hearing. A person intending to appeal from a
judgment imposing a fine only or from any judgment
rendered by a justice's court or city court must be
admitted to bail. The court shall order the detention of
a defendant found guilty of an offense who is awaiting
imposition or execution of sentence or a revocation
hearing or who has filed an appeal unless the court finds
that, if released, the defendant is not likely to flee or
pose a danger to the safety of any person or the
community. (Emphasis added).
Under this statute, since the Petitioner was found guilty of
the felony offense of deliberate homicide in district court, and
since he has filed an appeal, the court is required to order the
detention of the Petitioner "...unless LitI finds that, if
released, the defendant is not likely to flee...".
Here, the District Court made precisely the opposite finding.
The Court ruled that:
[T]here is simply too much risk involved [in granting
bail]. . ..I feel that under the evidence and testimony
presented, [at the bail hearing] the Court simply cannot
take the chance of flight that is always present when a
capital crime has been committed and there has been a
conviction. We cannot allow this Defendant out in the
community regardless of what his friends and family say.
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We find no abuse of discretion in the Court's ruling. Upon
conviction, Petitioner was no longer cloaked with the presumption
of innocence, having been found guilty beyond a reasonable doubt of
a capital crime. There was evidence presented at the sentencing
hearing to the effect that Petitioner had no ongoing business, that
his financial assets were negligible and that he was divorced after
he was originally admitted to bail. The District Court was
entitled to weigh all of those factors is assessing Petitioner's
propensity for flight. Accordingly, under the statute cited by the
Petitioner, he is not entitled to bail pending appeal.
The Petitioner goes on to argue, however, that Section 46-20-
204(2), MCA, 11 ..mandate[s]
. a stay of sentence pending appeal for
a defendant who has been admitted to bail during the pendency of
the case." We disagree.
That section of the Montana Code of Criminal Procedure
provides:
stay of execution an6 relief pending appeal. . ..(2) If an
appeal is taken and the defendant is admitted to bail, a
sentence of imprisonment shall be stayed by the trial
court. (Emphasis added).
Petitioner argues that the statute is ambiguous and, under the
rule of lenity, should be interpreted in his favor because it is
not clear what the legislature intended by the words "defendant is
admitted to bail." In other words, does that phrase refer to bail
before or after sentencing?
We conclude that the statute is not ambiguous. The plain
intendment of the language used is that if, in its discretion under
§ 46-g-107, MCA, and on making the required finding, the trial
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I.
court admits the defendant to bail pending appeal, then the court
must stay his sentence of imprisonment.
Since, as set forth above, the District Court did not admit
Petitioner to bail pending appeal, there is, obviously, no
V'mandateVV under f, 46-20-204(2), MCA, that it stay his sentence of
imprisonment. Petitioner's argument fails.
Finally, Petitioner argues that since the District Court, at
sentencing, designated him a nondangerous offender for purposes of
parole eligibility, he is entitled to bail pending appeal. Again,
we are not persuaded by Petitioner's argument.
Section 46-18-404, MCA provides in pertinent part:
Designation as nondangerous offender for purposes of
parole eligibility. (1) Except as provided in subsection
(4), the sentencing court, shall designate an offender a
nondangerous offender for purposes of eligibility for
parole under part 2 of chapter 23 if: . . . (b) the court
has determined, based on any presentence report and the
evidence presented at trial and the sentencing hearing,
that the offender does not rewresent a substantial danaer
to other wersons or society. (Emphasis added).
Implicit in the Petitioner's argument is the proposition that the
criteria for admitting a defendant to bail pending appeal and for
designating him a nondangerous offender are the same. That is not
the case, however.
In determining whether to admit a defendant to bail pending
appeal, the trial court is required to find that "...the defendant
is not likely to flee or pose a danger to the safety of any person
or the community.1t As pointed out above, the District Court, here,
declined to make such finding, ruling that there was a risk of
flight.
On the other hand, § 46-18-404(1)(b), MCA, requires the trial
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court to determine that I'... the offender does not represent a
substantial danuer to other persons or society" after considering
the presentence report and the evidence at trial and the sentencing
hearing. This statute does not carry a requirement that the risk
of flight be considered, but it does impose a more onerous
requirement that the court find that the offender not represent a
"substantial danger" as opposed to a lldangerl* to society.
Accordingly, while it may be appropriate for the trial court
to designate a defendant nondangerous for parole eligibility
purposes under the requirements of § 46-18-404(1)(b), MCA, it does
not follow that, under the different criteria of 5 46-g-107, MCA,
the court is also required to admit the defendant to bail pending
appeal.
For purposes of the instant Application for Writ of Habeas
corpus, we hold that the District Court correctly interpreted and
applied the appropriate statutes: that there was substantial
evidence to support the Court's decision; that the Court did not
abuse its discretion in denying the Petitioner's motion for bail
pending appeal: and that the Petitioner is not illegally imprisoned
or otherwise unlawfully restrained of his liberty.
IT IS HEREBY ORDERED, that Petitioner's Application for Writ
of Habeas Corpus
Dated this
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