State v. Radi

No. 13144

I N THE SUPREME COURT O THE STATE O M N A A
F F O T N

1977

STATE O MONTANA,
F

P l a i n t i f f and Respondent,

-vs-

GARY EUGENE R A D I ,

D e f e n d a n t and A p p e l l a n t .

Appeal from: D i s t r i c t Court of t h e S i x t h J u d i c i a l D i s t r i c t ,
H o n o r a b l e W. W. L e s s l e y , J u d g e p r e s i d i n g .

C o u n s e l o f Record:

For Appellant:

Conrad F r e d r i c k s and R i c h a r d W. J o s e p h s o n ,
Big Timber, Montana
Conrad F r e d r i c k s a r g u e d , Big Timber, Montana

For Respondent:

H o n o r a b l e Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a ,
Montana
J . Mayo A s h l e y a r g u e d , A s s i s t a n t A t t o r n e y G e n e r a l ,
H e l e n a , Montana
Kenneth R. O l s o n , County A t t o r n e y , B i g T i m b e r ,
Montana

Submitted: J u n e 3 , 1977

~ecided@~3 1 1978
4pR 1.9 i97h
Filed:
Mr. Justice Daniel J. Shea delivered the Opinion of the Court.

Defendant, Gary Eugene Radi, appeals from a judgment in

Sweet Grass County District Court adjudging him guilty of burglary
and from an order sentencing him to 50 years in the Montana state
prison as a persistent felony offender.
On September 7, 1974 the Ullman Lumber Company in Big
Timber, Montana, was burglarized. Missing from the office was
approximately $60 to $80 in cash and $1,180 in checks which were
restrictively endorsed. The cash was never recovered, but most of
the checks were recovered. Defendant was never directly connected
to stolen cash or checks.
Defendant and John Plichael Miner were arrested and charged
with burglary and theft. In a separate trial Miner was convicted
of burglary, sentenced to 10 years in prison, and this Court af-
firmed his conviction. (See, State v. Miner, (19,761,169 Mont. 260,
546 P.2d 252.) Defendant was tried after Miner's conviction and
while Miner's conviction was pending on appeal. Defendant's defense
was alibi and that of seeking to establish that Miner was the sole
perpetrator of the crime. He also attacked the credibility of one
witness, Tim Rostad, who placed defendant inside the burglarized
office building on the evening involved.
Tim Rostad is related to the owners of Ullman Lumber Company
and is well acquainted with the lumber yard and the internal sur-
roundings of the office building. He also knows all the lumber
company employees. On September 7, 1974, at approximately 11:15
p.m., Tim Rostad was talking with three occupants of a car parked
across the street from the Ullman Lumber Company. Rostad was
kneeling on the driver's side of the car talking to Alan Petaja,
Lila Fuller and Debbie Braley. The office building was directly
across the street and well lighted inside. Rostad noticed a
stranger inside the office building (later identified as defendant
Radi) and told the others. A few seconds later Petaja and Fuller

looked and saw an individual inside the office building. Witness
Fuller later identified this person as Miner, and Petaja was not
certain, although it appears that he also saw Miner. No witness
saw two persons simultaneously inside the office building. Rostad
then left to call the police. While he was gone Fuller and Petaja
saw two shadowy figures in the lumber yard, and Petaja saw them
climb over the fence and disappear. Neither witness could identify
the individuals in the lumber yard.

Ten or fifteen minutes after Rostad made the phone call,
he again saw the man he had seen inside the office building. The
man had stopped him to ask for change for the pay telephone. A few
minutes later, Officer Ed Brannin, responding to Rostad's telephone
call, stopped John Miner adjacent to the lumber yard and obtained
identification, questioned him briefly, and let him go. Brannin
continued patrolling and a few minutes later came upon Rostad who
directed the officer to defendant Radi standing inside a telephone
booth. Officer Brannin drove over to the phone booth accompanied
by Rostad. After defendant Radi made his call, Officer Brannin
asked him to get in the car. The dome light was on in the car,
and Rostad again had a clear view of Radi. At trial Rostad posi-
tively identified defendant as the man he had seen inside the lum-
ber yard office building, as the man who had asked him for change,
and as the man he had seen in the telephone booth and in the
patrol car.
Officer Brannin identified Radi as the same person he had
seen in the telephone booth and talked to inside the patrol car.
He had obtained Radi's driver's license identification and also
the license number of the car Radi was driving. A license number

check later revealed that the automobile was registered to Radi.
~uringcross-examination of Officer Brannin, the officer's report
of the crime investigation was admitted in evidence. Among other
matters, it contained the information that Brannin had checked
Radi's criminal background and determined that Radi had previously
been convicted of burglary and was then out on bail.
In addition to Rostad and Officer Brannin identifying
Radi in close proximity to the scene of the crime, witnesses Fuller
and Petaja testified they had seen Radi walking approximately a
block away from the lumber yard and a few minutes later saw Radi
again while Officer Brannin was obtaining identification from him
after he had exited the telephone booth.
Investigation at the lumber yard offices revealed that
entry to the building had been gained by breaking a lock and forcing
open a sliding door. Between $60 and $80 in cash and approximately
$1,100 in checks was missing. Most of the checks were recovered
and admitted in evidence through one of the owners of the lumber
company.
Although defendant did not testify at his trial, he sought
to establish through other witnesses that he was in Billings on
the night of the crime and that from the time he was last seen in
Billings, it would have been impossible for him to travel to Big
Timber by 11:OO p.m. Through two other witnesses, Radi also sought
to establish that John Miner was seen earlier that day in Livingston,
Montana, some 35 miles west of Big Timber, and therefore that ~ i n e r
was well within striking distance of the scene of the crime.
Defendant's employer in Billings, Gaylin Garrison, testi-
fied defendant worked with him at Garrison's gas station on Sep-
tember 7, 1974 until approximately 9:40 p.m. cross-examination
revealed that Garrison also knew and employed John ~ i n e rand that
Miner and Radi often worked together at the gas station. Karen

Radi, defendant's wife, testified defendant arrived home in ~illings
on September 7, 1974 just a few minutes before 10:OO p.m. She

testified ~ a d i
left home at approximately 10:15 p.m., pinpointing
the time by stating that she was listening to the 10 o'clock news
when he left. The thrust of this testimony was to demonstrate
that it was impossible for Radi to travel to Big Timber, some

85 miles away, in time to burglarize Ullman's Lumber Company at
11:OO p.m.

To point the finger at Miner as the sole perpetrator of
the crime, defendant called two young women, Barbara and Mary
Burns, who helped their father operate the Wrangler Bar in Living-
ston. Barbara Burns testified that on September 7, 1974, she saw
John Miner in the bar at approximately 7:00 p.m. Someone was with
him, but she could not say it was defendant Radi. Cross-examination
revealed that earlier she had given a deposition and testified that
the first name of the person with Miner was Gary. She also admitted
that when shown a picture of one identified as Gary Radi, she had
identified the person in the picture as having been with John Miner.
Mary Burns testified she saw Miner in the Wrangler Bar at
3:00 or 4:00 p.m. on September 7, 1974. He was not there when she
left at 7:00 p.m., but he was there when she came back sometime
between 9:00 and 10:OO p.m. and appeared to be drunk. At that
time, she did not see defendant Radi with him. Cross-examination
revealed she saw Miner with defendant Radi in the Wrangler Bar in
the early morning hours of September 8, 1974, between 1:00 and 2:00
a.m. This was three or four hours after the burglary in Big ~imber.
As the last item of his defense, defendant introduced in
evidence the certified record of Miner's conviction for the same
offense.
Defendant raises many issues on appeal which are briefly
summarized as follows: He contends the trial court improperly
denied a challenge for cause to a member of the jury panel who was
a county commissioner and also a part time deputy sheriff; he con-
tends that witness Tim Rostad was improperly allowed to testify
after he violated an order excluding witnesses from the courtroom;
he contends the testimony of the key witness, Tim Rostad, was
"inherently incredible"; he contends the trial court improperly
refused an instruction for the lesser included offense of criminal
trespassing; he contends he was improperly charged with theft and
certain instructions pertaining to the theft charge were in error;
he contends that instructions erroneously explained the statutory
language of "purpose" or "knowledge"; he contends the jury should
have been given a definition of illegal trespass along with the
definition of unlawful entry or unlawful remaining in an occupied
structure; he contends that two instructions relating to the defini-
tion and elements of burglary were repetitive; and finally, he at-
tacks the persistent felony offender statute on several grounds.
During jury selection a Sweet Grass County commissioner,
P. R. Esp, who was also a member of the sheriff's posse of that

county, was on the jury panel. Defense counsel challenged Esp for
cause but failed to state the grounds of his challenge. The trial
court denied the challenge. Defendant later excused Commissioner
Esp by using one of his peremptory challenges.

Defendant argues an attorney-client relationship existed
between the county attorney and the county commissioner. He claims

Esp, as a county commissioner, is a client of the county attorney,
and thus a challenge for cause should be allowed by statute. He
also argues that a deputy sheriff automatically has a state of mind
which would disqualify him from being an impartial juror in a

criminal case.
The statute does not permit an automatic challenge for
cause solely for the reason that a prospective juror in a criminal
case is also a county officer. Section 95-1909(d) ( 2 ) , R.C.M. 1947,
provides in pertinent part:

"A challenge for cause may be taken for all
or any of the following reasons; or for any
other reason which the court determines:

"(ii) Standing in the relation of * * * attor-
ney and client * * * or being a member of the
family of the defendant, or of the person
alleged to be injured by the offense charged,
or on whose complaint the prosecution was
instituted, or in his employment."
This section refers only to an attorney-client relationship which
exists between the prospective juror and the defendant, between the
prospective juror and the victim, or between the prospective juror
and the complaining witness.
The simple fact that a county attorney is a legal advisor
to a public official who is also a potential juror, does not alone
disqualify the public official as a juror. Under similar statutes,
in People v. Wilkes, (1955), 44 Cal.2d 679, 284 P.2d 481, 485, a
county commissioner was held not disqualified; and in State v.
Lewis, (1903), 31Wash. 75, 71 P. 778, a justice of the peace was
held not disqualified.
Defendant next contends that a law officer is automatically
prejudiced against a defendant and therefore should be disqualified
under section 95-1909(2)(x), R.C.M. 1947, which provides that one
can be challenged for cause under the circumstance:
"(x) For the existence of a state of mind on
the part of the juror in reference to the case,
or to either of the parties, which will prevent
him from acting with entire impartiality and
without prejudice to the substantial rights of
either party." (Emphasis added.)
This statute clearly does not provide for an automatic disqualifica-
tion. Rather, the defendant must show actual prejudice. In State
v. Thomson, (1976), 169 Mont. 158, 163, 545 P.2d 1070, we stated:
" * * *The bare fact that he is connected with
law enforcement does not, without more, neces-
sitate a finding that he would not be an impartial
juror."
 Here, defendant made no showing why he challenged for

cause other than the verbal act of declaring the challenge. Nor
do we find prejudice to defendant because his assertion that he
was forced to exercise a peremptory challenge against juror Esp,

thereby precluding him from using it on another prospective juror.
There is nothing here to show that defendant was deprived of a
fair jury panel.
In declaring that one's status as a law enforcement of-
ficer does not ipso facto disqualify him from sitting as a juror
in a criminal case, we are mindful of the natural inclinations of
one whose life is committed to law enforcement. For this reason
the widest possible examination should be allowed such person
in his examination as a potential juror, and should there be any
doubt in the event of a challenge for cause, the trial court should
resolve the doubt in favor of allowing the challenge.
The next series of errors complained of revolve around
the testimony of witness Rostad. Defendant contends that Rostad
was improperly allowed to testify after he was in violation of a
pretrial order excluding witnesses until such time as they testi-
fied. However, defendant has shown no prejudice, and by not
voicing his objection at the time Rostad testified, he waived any
right to complain.
After the trial court granted the order excluding witnesses
from the courtroom, the State called Rostad as its first witness.
However, before he testified, the State decided it should have
as its first witness one of the owners of the burglarized lumber
yard offices, Forrest Ullman. The prosecution apologized for the
mix-up, and the trial court simply told ~ostadto step aside,
implying that Rostad was to stay in the courtroom. ~ostadwas

not told to leave the courtroom. Accordingly, during the course
of Ullman's testimony, Rostad remained in the courtroom with no

objection from defendant.
 Ullman testified to the physical layout of the lumber
yard and its offices and to the cash and checks stolen. The
checks were admitted in evidence. Rostad's primary function was
to identify ~ a d i the person he saw inside the office building.
as
We fail to see how Rostad's testimony could have been affected by
what he heard from the testimony of Ullman. Moreover, failure to
object at the time waived any right to complain of this minor
irregularity.
Neither do we find a denial of due process under these
circumstances. Defendant's claim is that Rostad was allowed to
get a better view of the defendant while he was waiting for Ullman
to finish his testimony. Rostad saw Radi inside the office building,
he again saw him moments later when Radi asked him for change in
order to use the pay telephone, and he viewed him still a third
time within a few minutes while Officer Brannin was checking out
Radi's identification. Rostad's testimony placing Radi inside the
office building was unequivocal. Moreover, we again hold defendant
waived any claim of error when, without objection, he allowed
Rostad to remain in the courtroom during Ullmanls testimony.
Defendant also contends the conviction cannot stand because
Rostad's testimony placing defendant inside the office building is
"inherently incredible". This argument is based on the possibly
conflicting testimony of witnesses Fuller and Petaja. Fuller saw
only Miner inside the building, and Petaja was not certain, but
his description fit Miner more than it did Radi. Under this doc-

trine a conviction will only be set aside if the testimony or
evidence is so "inherently incredible" that no reasonable mind
ought to accept it as true. State v. Crockett, (1966), 148 Mont.
402, 407, 421 P . 2 d 722. Considering the total circumstances of this
case, Rostad's testimony does not fall into that category.
 The testimony of each of the witnesses did not preclude
both Miner and Radi being inside the building. The fact that both
were not seen at one time does not establish that Radi was never
inside. Moreover, it is long established that the testimony of
one witness is sufficient to establish a fact. Section 93-401-1,
R.C.M. 1947; State v. Park, (1930), 88 Mont. 21, 31, 289 P. 1037.
The jury was so instructed in this case, without objection from
defendant. Rostad's testimony on cross-examination was unequivocal
and reinforced his testimony on direct examination:
"Q. Were you sure that at the time that the
Defendant came across the street and asked you
for change that he was the one that you saw in
Ullman's Lumber Company? A. Yes, I was.
"Q. You were positive at that time? A. Yes,
I was.
"Q. Are you positive now? A. Yes.
"Q. Is there any possibility in your mind
that you could be mistaken? A. No."
Surely the jury was entitled to accept this testimony as
establishing the fact that defendant was inside the building of
the Ullman Lumber Company.
Defendant next contends the theft charge should have been
dismissed because it arose from the same transaction as the bur-
glary and defendant could not be charged for two offenses. However,
different elements must be proven for a charge of theft than for a
charge of burglary, and we cannot see error to charge defendant
with both offenses. We note also that the jury was instructed to
find defendant not guilty of theft if they found him guilty of
burglary. Since it did so, we see no prejudice to defendant.
The theft charge is also the basis for defendant's claims
that several instructions were in error. Because the jury found
defendant not guilty of this charge, there is no need to review

these claims of error.
 The refusal of the trial court to allow an instruction on
the lesser included misdemeanor offense of criminal trespassing is
another claim of error. While it is true trespassing is a lesser
included offense of burglary under the facts charged here, we do
not agree that the evidence justified an instruction.
To commit burglary one has to commit a criminal trespass.
Burglary is defined in section 94-6-204(1), R.C.M. 1947:
"A person commits the offense of burglary if he
knowingly enters or remains unlawfully in an
occupied structure with the purpose to commit
an offense therein."
The crime of trespass, as it relates to entry of an occupied building,
as charged in this case, is defined by section 94-6-203(1)(a), R.C.M.

"A person commits the offense of criminal
trespass to property if he knowingly:
"(a) enters or remains unlawfully in an
occupied structure * * * "
The only difference between the elements of the two offenses is that
in burglary there is the additional requirement of a purpose to com-
mit an offense within the occupied structure. Clearly, criminal
trespass is an included offense of the crime of burglary as herein
defined.
The essence of defendant's argument is that under a lesser
included offense instruction he was entitled to argue that even if
the jury found he was in the lumber company building, it could con-
clude he had merely committed a trespass because he had no purpose
to commit the offense of theft while inside. However, there is no
evidence in the record from which such an argument could be made.
In State v. Bouslaugh, (1978), Mont. -1 -P.2d I

35 St.Rep. 319, we recently affirmed the viability of the doctrine

of lesser included offense. In Boslaugh, quoting from State v.
Buckley, (1976), Mont. , 557 P.2d 283, 33 St.Rep. 1204,
1207, we stated:
 "I* * * the district court's instructions must
cover every issue or theory having support in the
evidence, and the inquiry of the district court
must only be whether or not - evidence exists
any
in the record to warrant an instruction on [the
lesser included offense] * * *.I1' 35 St.Rep. 321.
Here, defendant's apparent defense was alibi. Through his
witnesses he claimed that he was not in Big Timber on the day of
the burglary and more particularly, could not have been there at
the time the burglary was committed. Not a shred of evidence was
admitted which could lead a jury to rationally believe defendant
was in the building but that he was in the building for an innocent
purpose.
It was defendant who introducted Officer Brannin's investi-
gation report, which indicated defendant had a previous conviction
for burglary and was presently out on bail. Furthermore, there was
no evidence from which the jury could rationally conclude that
defendant had no purpose to commit a theft when he had climbed a
high fence, broken a lock on a door to the building, and cash and
checks were missing from the office building he had entered. If

there was an innocent purpose for being inside the building, it
resided solely within defendant's mind, and the jury did not have
this evidence. Nor was the nature of defendant's defense consis-
tent with any theory of criminal trespass. Clearly, there was no
evidentiary basis for the jury to rationally conclude defendant had
convnitted only a simple trespass.
Defendant next urges that several jury instructions which
explained the statutory language of "purpose" and "knowledge" were
in error. It is true that Instruction No. 7 is repetitive of
Instruction No. 5, but we see no prejudice. Instruction No. 5
told the jury that "purpose or knowledge" can be proved by either
direct evidence or inferred from the "acts, conduct and circum-
stances appearing in evidence." Instruction No. 7 told the jury

that uknowledge" can be proved by either direct evidence or inferred
from the "acts, conduct and circumstances appearing in evidence."
Next, defendant complains that the word "purposely" in
Instruction No. 6 deviated from its statutory definition contained
in section 94-2-101(53), R.C.M. 1947. We note, however, that
Instruction No. 6 quotes this section in all material respects.
Similarly, he complains that the word "knowingly" as defined in
Instruction NO. 8 differs from the definition contained in section
94-2-101(28), R.C.M. 1947. Again, we see no material departure.
The jury was given an instruction defining unlawful entry
or unlawful remaining in an occupied structure. Defendant contends
that this instruction is incomplete because it failed to also con-
tain a definition of illegal trespass upon land as defined in
section 94-6-201(1), R.C.M. 1947. We see no necessity for this
instruction when defendant was not charged with illegal trespass
upon land. Accordingly, the instruction as given was complete and
defendant's offered instructions seeking to add the definition of
illegal trespass upon land, were properly refused.
In his last assignment of error concerning jury instruc-
tions, defendant contends Instruction No. 12, which set forth the
elements of burglary and what the State must prove, was repetitious

of Instruction No. 9 which set forth the definition of burglary.
Both instructions served a needed purpose. The first provided a
simple definition of burglary. The second set forth each of the

elements of burglary as they related to the particular charge and
stated that each element must be proved beyond a reasonable doubt.
Defendant also mounts several attacks on the persistent
offender statutes under which he was sentenced to 50 years in prison.
He claims he was denied procedural due process because the statute

which sets out the circumstances under which one can be sentenced
as a persistent felony offender (section 95-1507, R.C.M. 1947) must
stand alone unaided by any other statute. ~ssuminghis premise to
be correct, he then contends that section 95-1507 is unconstitu-
tional because it contains no procedural guidelines and safeguards
for notice, hearing, and proof of the previous felony convictions.
He further asserts that the persistent felony offender statute is
in violation of Article 11, Section 28, 1972 Montana Constitution,
because it allows punishment for previous felony convictions after
state supervision has been terminated. And last, he contends that
the State did not prove the previous felony convictions.
We note first that the State followed the procedural guide-
lines and safeguards of section 95-1506, R.C.M. 1947, even though
defendant claims the State cannot be aided by this statute. Under
this statute, the State served notice on defendant before trial
that it would seek increased punishment if he was convicted; the
State specified the prior convictions of defendant; the State did
not disclose to the jury or the public that defendant had a prior
felony record and that it was seeking increased punishment; after
defendant was convicted, the State filed the notice and proof of
service with the court; and last, a sentencing hearing date was
set to give defendant sufficient time to meet the allegations. In
fact, defendant missed his court date and was arrested, and the
court then set another date for the sentencing. At the hearing
defendant was represented by court appointed counsel.
Defendant's argument centers around the changes that were
made when this State adopted a new procedural criminal code (Title
95, Revised Codes of Montana) and several years later adopted a
new substantive criminal code (Title 94, Revised Codes of Montana).
Before the changes, both substantive and procedural statutes were
contained in Title 94. In the process of adopting a new Title 94,
some of the old procedural provisions in that title were shifted

to Title 95, the criminal procedure title.
 Under the old Title 94, section 94-4713, R.C.M. 1947, set
forth the circumstances under which one could be sentenced as a
persistent felony offender. However, the procedural guidelines
and safeguards which had to be followed were set forth in section
95-1506, R.C.M. 1947, with subsection (d) providing:
"(d) The hearing shall be held before the court
alone. If the court finds any of the allega-
tions of prior convictions true, the accused
shall be sentenced under the provisions of
section 94-4713."
In 1974, the new substantive criminal code went into effect,
and of course, the old Title 94 was repealed. (Chapter 513, Laws
of 1973, Section 32.) Included in this repeal was section 94-4713.
However, Chapter 513, Laws of 1973, Section 5, specifically provided:
"There is a new section to be numbered 95-1507,
R.C.M. 1947, which reads as follows:
"95-1507. Sentence of Imprisonment for Persis-
tent Felony Offender.
" * * * " [Here, the entire statute was set out
verbatim.]
In spite of this language substituting section 95-1507 for
the previous 94-4713, defendant maintains that section 95-1506 cannot
supply the procedural safeguards for section 95-1507. Based on his
premise that section 95-1507 must stand alone, he argues that de-
fendant has been deprived of due process in several ways. Of course,
these arguments fail if sections 95-1506 and 95-1507 can be construed
together. We see no problem in construing these statutes together
to provide both the procedural requirements and substantive basis
for implementing persistent felony offender sanctions. That is
precisely what the legislature intended.
The legislature intended that the new section 95-1507 be a
substitute for the old 94-4713. This being the case, there is no
need to discuss defendant's remaining arguments that he was deprived
of due process. He was given due process in this case under section

95-1506. The prosecuting attorney and the District Court properly
treated this statute as a companion statute to section 95-1507.
Defendant's next contention is that Article 11, Section 28,
1972 Montana Constitution, prevents the enforcement of a persistent
offender statute such as section 95-1507 because the statute
improperly limits the rights of a felon after state supervision
has terminated. Article IT, Section 28, 1972 Montana Constitution
provides :
"Rights of the convicted. Laws for the punish-
ment of crime shall be founded on the principles
of prevention and reformation. Full rights are
restored by termination of state supervision for
any offense against the state."
Section 95-1507, as previously discussed, is the substantive
section of the persistent felonly offender statutes, and provides:
"95-1507. Sentence of imprisonment for
persistent felony offender. (1) A persistent
felony offender is an offender who has been
previously convicted of a felony and the present
offense is a second felony committed on a dif-
ferent occasion than the first.
"(2) A persistent felony offender shall be
imprisoned in the state prison for a term of
not less that five (5) years nor more than one
hundred (100) years providing:
" (a) the previous felony conviction was
for an offense committed in this state or any
other jurisdiction for which a sentence to a
term of imprisonment in excess of one (1) year
could have been imposed; and
" (b) less than five (5) years have elapsed
between the commission of the present offense
and either,
"(i) the previous felony conviction or
"(ii) the offenders released on parole or
otherwise from a prison or other commitment
imposed as a result of the previous felony
conviction; and
"(c) the offender was more than twenty-one
(21) years old at the time of the commission of
the new offense.
" (3) A previous felony conviction shall not
be considered for the purpose of sentencing under
this section if the offender has been pardoned on
the grounds of innocence, or if the conviction had
been set aside in any post-conviction hearing."
 Under this statute a person can be treated as a persistent
offender if he is over the age of 21 at the time of the commission
of the second felony and if either of two conditions is met: (1)
If less than five years has elapsed between the time of commission

of the first and second offense; or (2) if less than five years
has elapsed from the time he has been discharged from a felony com-
mitment and the commission of a subsequent felony.
Because of the constitutional provision, however, defend-
ant argues that even if five years has not elapsed under the statute
a person cannot be sentenced as a persistent felony offender if
state supervision has terminated within that time. Even assuming
the defendant to be correct, we note that he could not take advan-
tage of the provision he invokes. In the Carbon County conviction,
state supervision had not terminated. In fact, at the time of
trial, defendant's conviction was then pending on appeal, and was
later affirmed by this Court. State v. Radi, (1975), 168 Mont. 320,

In any event, we cannot construe Article 11, Section 28
in the manner that defendant desires. In State v. Gafford, (1977),
Mont. , 563 P.2d 1129, 34 St.Rep. 313, the defendant con-
tended he could not be impeached through proof of a prior convic-
tion of a felony because of Article 11, Section 28. To this as-
sertion this Court responded:
"In our view the constitutional provision refers
to those rights commonly considered political
and civil rights incident to citizenship such as
the right to vote, the right to hold public of-
fice, the right to serve as a juror in our courts
and the panoply of rights possessed by all citi-
zens under the laws of the land. It has no
reference to an individual's characteristics,
record, or previous conduct demonstrated by a
prior felony conviction." 34 St.Rep. 319.
Article 11, Section 28 grants an offender who has served
his sentence a fair opportunity to enjoy the rights that law-abiding
citizens enjoy. It does not grant him immunity from being treated
as a persistent felony offender.
 Defendant's last contention is that the State failed to
prove he was a pe'rsistent felony offender. In the case of the
Yellowstone County burglary conviction, he contends the State

failed to prove he was the person named in the certified judgment
of conviction and certified prison records of his admission and
discharge from the state prison. On the other hand, while he ad-
mits the State proved his identity and the fact of conviction in
the Carbon County burglary conviction, he contends that since his
conviction there was pending on appeal, it could not serve as a
basis to invoke the persistent felony offender statutes.
During the sentencing hearing, the State proved the Yellow-
stone County conviction by introduction of a certified copy of a
judgment from Yellowstone County. The record reveals only that the
judgment was offered and admitted in evidence. The State also
introduced in evidence a certified statement from the keeper of the
records at Montana state prison in Deer Lodge that Gary Eugene Radi
had been received by the prison from Yellowstone County on Septem-
ber 7, 1967 and had been discharged from prison on February 5, 1971.
No evidence was offered to independently establish that the Gary
Eugene Radi convicted in Yellowstone County and released from the
state prison was the same person as the Gary Eugene Radi then
standing before the court. The apparent purpose of admitting the
prison records was to establish that less than five years had
elapsed from the date of prison release until the commission of the
subsequent felony in Sweet Grass County.
Defendant contends that the certified judgment and the
prison certification of the dates the person named in the judgment
was admitted to and was discharged from the state prison were not
sufficient to establish identity. The State agrees these records
did not establish identity, but baldly argues the ~istrictCourt
had the right to rely on other information not of record to estab-
lish identity. The State argues that defendant appeared before
the same district judge as a witness in an unrelated case in a
different county, and contends that this was sufficient for the
trial judge to know defendant and his background. The State fur-
ther contends that on the day of sentencing another judge in the
courtroom knew the defendant and his background and could have so
informed the sentencing judge. Not only are these unsupported
assertions, but even if true, they would not establish defendant's
identity as the person who committed the Yellowstone County burglary.
In State v. Cooper, (1971), 158 Mont. 102, 489 P.2d 99,
we discussed the persistent felony offender statutes which had
recently been enacted. We distinguished them from the previous
persistent offender statues where the jury made a determination as
to whether a defendant had been convicted of a prior felony. Under
the new statutes, proof of the prior conviction is made part of the
sentencing process. Nevertheless, we held that identity of defend-
ant as the person who committed the prior felony must be proven by
competent evidence. There, we held that the records relied upon
were not sufficient to establish defendant's identity and we
remanded the case for a rehearing on that question.
We do not agree, however, with defendant's contention that
the Carbon County conviction cannot be considered because it was
pending on appeal at the time of sentencing. Defendant admits the

proof was sufficient to prove the Carbon County felony conviction.
In addition to a certified copy of the judgment, the sheriff from
Carbon County testified that the defendant presently standing before
the court was the same person who had been convicted of burglary
in Carbon County. The sheriff had personally participated in the
trial of defendant and was present when he was sentenced. ~efendant

contends that despite this proof, it would be extremely unjust to

sentence a person to increased punishment as a persistent felony
offender if it is based upon a conviction that is later overturned
on appeal.
The majority rule favors defendant's position, but we
are not persuaded by it. Defendant's fears in the event of a
reversal of the first conviction are unfounded. We do not believe
a defendant should be able to avoid the consequences of his persis-
tent felony conduct solely because of the fortunate circumstance
that his previous felony conviction was pending on appeal at the
time of sentencing.
In the event that defendant's conviction is reversed on
appeal, the status of defendant as a persistent felony offender
ceases. If the charges are ordered dismissed, defendant would have
to be resentenced without regard to the persistent felony offender

statutes. If a new trial is ordered, defendant would still have
to be resentenced without regard to the persistent felony statutes.
Section 95-1507(1), R.C.M. 1947, would dictate this result:
"(1) A persistent felony offender is an offender
who has been previously convicted of a felony
and the present offense is a second felony com-
mitted on a different occasion than the first."
Obviously, a reversal granting a new trial would erase the previous
conviction and eliminate the basis to sentence defendant as a per-
sistent felony offender.
Nor do we find any language in section 95-1507(3), R.C.M.
1947, to support defendant's position. That section provides:
"(3) A previous felony conviction shall not be
considered for purpose of sentencing under this
section if the offender has been pardoned on
the grounds of innocence, or if the conviction
has been set aside in any post-conviction heari
(Emphasis added. )
The emphasized language clearly indicates that the action nullifying
the conviction must have preceded the sentencing hearing. A felony
conviction which is pending on appeal does not fall into that
category.
 Clearly therefore, the Carbon County burglary conviction
was sufficient to establish the right of the District Court to
adjudge defendant as a persistent felony offender. We cannot be

certain, however, that the District Court would have sentenced

defendant to 50 years if the District Court had ruled that the
State did not prove identity in the Yellowstone County burglary
conviction. We also note that the District Court did not order a
presentence investigation and had no previous presentence investi-

gations. It appears that defendant was sentenced to 50 years solely

because the District Court determined he had committed the Carbon
County and Yellowstone County burglaries.

After the state rested its proof on the prior felonies,
the court immediately sentenced defendant to 50 years in prison.

Concerning the prior felonies, the District Court then stated:

" * * * We instruct juries that they are not
to forsake their common sense as men and
women when they serve as jurors, and cer-
tainly there is nothing that says that a
Judge has to fail and forget his common
sense. This is Gary Eugene Radi, and the
Gary Eugene Radi that was in Billings; and
it was Gary Eugene Radi that was in Red
Lodge; and Gary Eugene Radi that I am sen-
tencing to the State Prison. And Gary
Eugene Radi, if there ever was a persistent
felony offender, it is Gary Eugene Radi.
Take him. Court's in recess."

Although the State proved defendant's status as a persis-
tent felony offender, the need for a pre-investigation was not

thereby eliminated. In determining the sentence of a persistent

felony offender, the trial judge has a vast range of choices, from
a minimum of five years to a maximum of one hundred years in prison.
(Section 95-1507(2), R.C.M. 1947.) The criminal history and other
background which could be established through a presentence investi-
gation report is as important to a sentencing judge in choosing the
sentence, as it is when one comes for the first time before a court

to be sentenced for a felony. Certainly, the consequences are much
greater for one who is to be sentenced as a persistent felony
offender. For this reason, the presentence investigation report
is a vital tool of the District Court in arriving at what it
considers to be the proper sentence.
For the foregoing reasons we affirm the judgment of the
conviction and the court's order adjudging defendant to be a
persistent felony offender. We remand for resentencing for the
reasons expressed herein.

We Concur:

%&d 544d4
Chief Justice