State v. Nichols

NO. 85-425

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

1986

THE STATE O MONTANA,
F

P l a i n t i f f and R e s p o n d e n t ,

-vs-

DAN NICHOLS,

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 C o u r t of t h e F i f t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f Madison,
The H o n o r a b l e F r a n k D a v i s , J u d g e p r e s i d i n g .

COUNSEL O RECORD:
F

For Appellant:

Ungar Law O f f i c e ; S t e v e n B. Ungar a r g u e d , Bozeman,
Montana

F o r Respondent:

Hon. 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 u d y Browning a r g u e d , A s s t . A t t o r n e y G e n e r a l , H e l e n a
Marc R a c i c o t , County P r o s e c u t o r , H e l e n a , Montana

-
- - --

submitted: March 1 0 , 1986

Decided: June 1 2 , 1986

Filed: L 2 1986
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.

Defendant Nichols appeals the sentence imposed by the
District Court, Fifth Judicial District, after his conviction
on charges of felony kidnapping and misdemeanor assault. The
District Court sentenced Nichols to:
1. Ten years at the State Prison for felony kidnapping;
2. Six months at the State Prison for misdemeanor
assault;
3. Ten years at the State Prison for use of a firearm
while engaged in the commission of felony kidnapping (all
sentences to be served consecutively).
The District Court further designated the
defendant-appellant a dangerous offender for the purpose of
parole eligibility pursuant to 46-18-404, MCA. In
addition, the District Court strongly recommended, "that the
Warden of the Montana State Prison, when and if he determines
it to be a proper case therefor, transfer the defendant to
the Swan River Forest Youth Camp to serve the sentence herein
imposed. "
Appellant presents a number of issues for our review:
1. Whether $ 46-18-404(l) (b), MCA, which empowers a
district judge to designate a convicted defendant as a
dangerous offender, if he represents a "substantial danger to
other persons or society," violates the Federal or Montana
Constitutions because it offends due process of law by:
(a) not requiring tha-t the defendant receive notice
that the State will seek the application of dangerous
offender designation, and the factual basis of the State's
request for that designation, and
 (b) by containing a standard so vague as to allow
arbitrary exercise of judicial power.
2. Whether the District Court abused its discretion in
imposing sentence:
(a) by designating Nichols a dangerous offender;
(b) by enhancing Nichols ' sentence for kidnapping
because a weapon was used in the commission of the crime,
because it found the exceptions to the enhancement statute
did not apply;
(c) by what Nichols claims amounts to sentencing him
for the crime of deliberate homicide, despite his acquittal
of that offense; and
(d) by imposing a sentence which is internally
inconsistent and against the weight of substantial and
credible evidence?
We affirm the District Court.
This appeal arises from an ill-conceived plan of the
appellant and his father to secure a woman to augment their
lives as self-professed "mountain men." On July 15, 1985
they put their plan into action. The appellant Dan Nichols
and his father, Don Nichols, abducted Kari Swenson as she
jogged around a lake in the mountains near Big Sky, Montana.
After they tied her wrist to Dan's they proceeded deeper into
the mountains. After traveling for awhile they decided to
make camp. Kari, still tied wrist-to-wrist to the defendant,
was taken to a tree where a chain was placed around her waist
and then around the tree and fastened with a padlock. Kari
testified that she had trouble moving. Later they moved Kari
to another location nearby that had been prepared as a
sleeping area. She was taken there with one end of the chain
around her waist. When they got there they chained the other
end around a tree and gave her a sleeping bag. She was
- 3 -
unable to get all the way into the sleeping bag because of
the chain. She testified that she did not sleep that night.
The next morning while the father was out of the camp on
an errand, Kari begged the defendant to let her go but he
told her, "No, I want to keep you. You're pretty." She
testified that she was crying and close to hysterics and
asked him six or seven times to let her go but he refused.
The next morning Alan Goldstein, a friend of Kari's who
had been looking for her, entered the camp. The appellant
raised his pistol and pointed it in Goldstein's direction.
Then he heard sounds behind him of Jim Schwalbe, another
searcher, entering the camp. As appellant turned toward the
sounds his gun discharged, seriously wounding Kari beneath
her right shoulder. While Schwalbe attempted to aid Kari,
Goldstein who had withdrawn from the camp, re-entered
exclaiming, "You're surrounded! You might as well give up."
The appellant's father said they would not give up. He moved
from behind a tree, raised his rifle and from twenty feet
away fatally shot Alan Goldstein. Schwalbe called
Goldstein's name and ran to him. He then made his escape.
After wounding Kari, Dan Nichols did not further
participate in the events until Goldstein lay dead at the
scene. Then he and his father quickly prepared to break camp
by packing their equipment to leave the area. Kari testified
that she was getting cold but despite her pleas to keep the
sleeping bag they had given her "they just kind of picked up
the end and flopped" her on the ground, took the sleeping bag
and left. She did not see them again until the trial.
After they ha.d gone, Kari tried to crawl over to where
Goldstein was but only made it as far as the campfire. She
tried to start it by adding small sticks and blowing on it
but was not successful because of difficulty breathing. She
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began to get sore and numb. When she tried to move there was
a sucking sound from the wound in her chest. She was getting
very cold and tried to crawl on her hands and knees to see if
she could find something to cover herself with, but was only
able to crawl on her stomach a short distance at a time. She
did manage to crawl over to a backpack that Jim Schwalbe had
dropped. She got into a sleeping bag that she found there.
Later she again tried to crawl over to where Goldstein was
but could not do so because of her weakening condition. She
crawled back into the sleeping bag. She forced herself to
stay awake because she feared losing consciousness would lead
to her death. She was finally rescued later that day.
Appellant and. his father were apprehended December 13,
1985, and charged with deliberate homicide, aggravated
kidnapping, assault and intimidation. Separate trials were
ordered. Appellant was tried before a jury in the Fifth
Judicial District, the Honorable Frank M. Davis, presiding.
During the trial, much evidence was produced concerning
Donald Nichols' influence over his son Dan. Both the defense
and the prosecution introduced exhaustive lay and expert
testimony concerning Dan's mental state and mental health.
The verdict returned by the jury on May 13, 1985 found
appellant guilty of felony kidnapping and misdemeanor assault
and not guilty of deliberate homicide. On May 18, 1985 the
District Court released the appellant on a $35,000 property
bond. The court set a sentencing hearing for July 19, 1985.
Prior to the hearing the prosecuting attorney sent the
defense attorney a letter dated May 24, 1985, which served as
notice of the State's intentions at sentencing.
For sentencing purposes the parties agreed to avoid
additional cost by stipulating to use the psychological
testimony presented at trial. In addition, they filed
- 5 -
sentence recommendations, a presentence investigation report,
and other documents. All this material was available to both
sides.
During the sentencing the defense presented testimony by
Dan Nichols. The State presented the testimony of Kari
Swenson. This was followed by closing remarks and
pronouncement by the court of the sentence described above.
Issue I: Due Process
A. Notice
Appellant first challenges S 46-18-404, MCA, as
containing two violations of the due process guaranties of
both the United States and the Montana Constitution. First,
he argues the statute fails to require that the defendant
receive notice prior to the sentencing hearing that the State
will seek to designate the defendant as a dangerous offender
under the statute.
Section 46-18-404, MCA, provides in relevant part:
(1) The sentencing court shall designate an
offender a nondangerous offender for purposes of
eligibility for parole under part 2 of chapter 23
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; and
(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 present a substantial danger to
other persons in society.. ..
(3) if the court determines that an offender is
not eligible to be designated as a nondangerous
offender, it shall make that determination a part
of the sentence imposed and shall state the
determination in the judgment. Whenever the
sentence and judgment does not contain such a
determination, the offender is considered to have
been designated as a nondangerous offender for
purposes of eligibility of parole.
The practical effect of a dangerous offender designation is
to deny the defendant parole eligibility until he or she has
served one-half of the sentence imposed. Section 46-23-216,
MCA. Cavanaugh v. Crist (Mont. 1983), 615 P.2d 890, 892, 37
St.Rep. 1461, 1463. Because of the length of the sentence
imposed in this case, 20 years and 6 months, this limitation
on parole eligibility also precludes appellant's transfer to
Swan River Youth Camp for ten years, less "good time" credits
earned.
Due process requires that a defendant's liberty
interest, and risk of unjust deprivation of that liberty
interest, be balanced against the State's interest in
protecting the community. Greenholtz v. Nebraska Penal
Inmates (1979), 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668.
It is clear that a convicted defendant's liberty
interest at sentencing does not rise to the level of an
accused's liberty interest at trial. Williams v. New York
(1949), 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed.2d 1337.
However, "it is also true the rights of the [defendant] must
be protected. Due process must be observed in [sentencing]
hearings ... " State v. Harney (Mont. 1972), 499 P.2d 802,
805-806, 160 St.Rep. 55, 62.
Appellant argues that Montana's statutory structure,
under which the sentencing is carried out, indicates the
nature and weight of a defendant's liberty interest in
parole. Section 46-18-404 (1), MCA, states, "The sentencing
court shall designate an offender a nondangerous offender for
purposes of eligibility for parole ... -
if: . . .. 11

(Emphasis added.) The statute then goes on to list the
substantive basis for a nondangerous designation and requires
the court to include its determination within the judgment.
 Appellant contends this mandatory language, substantive
conditions, and accompanying formal procedural requirements
are similar to the statutes reviewed by the United States
Supreme Court in Greenholtz v. Nebraska penal Inmates (1979),
442 U.S. 1, 99 S.Ct.' 2100, 60 L.Ed.2d 668, and ~ e w i t t v.
Helms (1983), 459 U.S. 460, 103 S.Ct. 864, 72 ~ . ~ d . 2 675.
d
The statute in Greenholtz required that the Board of
Parole shall order the release of a prisoner eligible for
parole, unless one of four listed substantive provisions
applied. In commenting on the nature of the liberty interest
the Court noted:
Respondents emphasize that the structure of the
provision together with the use of the word "shall1'
binds the Board of Parole to release an inmate
unless any one of the four specifically designated
reasons are found. In their view, the statute
creates a presumption that parole release will be
granted, and that this in turn creates a legitimate
expectation of release absent the requisite finding
that one of the justifications for deferral exists.

We can accept respondents1 view that the expectancy
of release provided in this statute is entitled to
some measure of constitutional protection.
(Citations omitted.)
442 U.S. at 11-12, 99 S.Ct. 2100, 2106, 60 L.Ed.2d 667, 678.
Appellant also cites Hewitt v. Helms, wherein the Court
reviewed Pennsylvania statutes to determine the nature of the
liberty interest involved in avoiding more restrictive
confinement than normal prison confinement:
[Wle are persuaded that the repeated use of
explicitly mandatory language in connection with
requiring specific substantive predicates demands a
conclusion that the State has created a protected
liberty interest.
Hewitt v. Helms (1983), 459 U.S. 460 at 472, 103 s.Ct. 864,

The State responds that due process requirements at the
sentencing stage differ from those at trial and pretrial
stages. Williams v. New York (1949), 337 U.S. 241, 69 S.Ct.
1079, 93 L.Ed.2d 1337. Traditionally, courts have "very
broad judicial discretion" in sentencing because sentencing
is less encumbered by procedural formality. Cavanaugh v.
Crist (Mont. 1983), 615 P.2d 890, 894, 37 St.Rep. 1461, 1464.
In Cavanaugh, this Court considered a similar notice
challenge to S 46-18-202(2), MCA. That statute allows the
sentencing court to completely restrict a defendant's parole
eligibility. This Court upheld the statute, remarking,
The restriction of parole and furlough program
eligibility [contained in S 46-18-202(2)] is "a
part of the sentence" by the express terms of the
statute and does not involve any proceeding except
the ordinary sentencing proceeding. It represents
one option, among others, that the legislature has
made available to district judges in the course of
ordinary sentencing. The full restriction on
parole and furlough eligibility permitted by
section 46-18-202(2) has no existence apart from
the sentence imposed for the underlying offense.
Cavanaugh, (Mont 1983), 615 P.2d at 893, 37 St.Rep. at
1463-64.
The State correctly characterizes the holding of
Cavanaugh. However, that holding pertains to the procedure
due, not to the nature of the interest implicated. We did
not directly address the nature of the interest implicated in
Cavanaugh, but we clarify that now. The language of 5
46-18-202, MCA, is discretionary. Therefore it cannot be
read to create any more specific liberty interest than that
already inherent in a sentencing proceeding.
The language of 5 46-18-404, MCA, is mandatory. This
presents a different situation. It can be read to create a
liberty interest, in that it limits a sentencing court's
discretion by requiring the court to designate a defendant as
a nondangerous offender if the substantive provisions are
met. There is no constitutional right to parole. Yet, 9
46-18-404, MCA, when fairly read in conjunction with S
46-23-216, MCA, indicates a legislatively created interest in
being designated a nondangerous offender.
However, because the statute lays out the substantive
criteria upon which such a designation must be based, no
notice other than notice of the sentencing hearing itself is
needed to comport with due process. Appellant has cited us
to cases wherein courts have held that the defendant must
have notice of the charge and the factual basis upon which
the charge is based. However, these cases all involve
proceedings apart from the sentencing hearing itself. Hewitt
v. Helms (1983), 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675
(administrative confinement of convicted prisoner) ; New
Jersey Parole Board v. Byrne (N.J. 1983), 460 A.2d 103
(parole hearing subsequent to incarceration). Because each
of these hearings focuses on one matter, notice must be
separate in each matter. A sentencing hearing, unlike those
discrete proceedings, requires that many determinations be
made. The statutes governing sentencing provide ample notice
of matters which may come up. These, along with notice of
the date of hearing, the full disclosure of presentencing
information in open court; the ability of the defendant to
propound evidence, to confront witnesses, and to participate
in the sentencing proceeding provide a full panoply of due
process safeguards for the liberty interest implicated. -
See,
State v. Redding (Mont. 1984), 675 P.2d 974, 41 St.Rep. 147;
Cavanaugh v. Crist (1983), 615 P.2d at 893, 37 St.Rep. at
1463.
B. Vagueness.
In order to apply the dangerous offender designation the
District Court must find that the defendant poses a
"substantial danger to other persons or society," 5
46-18-404 (1) (b), MCA. Appellant notes that the term
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"substantial danger" is not defined in Title 46, or anywhere
in the criminal code. Appellant contends that "substantial
danger is a term of [so] loose and uncertain meaning,"
Wilding v. Norton (Cal. 1958), 319 P.2d 440, that a court's
discretion in defining the term is unfettered. Statutes
which allow arbitrary or discriminatory application of the
law offend due process.
Appellant argues that state courts have split over the
definition of "dangerous," and therefore provide no
persuasive authority for a district court to adopt.
Furthermore, because § 46-18-404, MCA, is void of legislative
history, the District Court can find no guidance there. In
response the State cites a multitude of cases upholding
similar statutes despite vagueness challenges.
We note that arguments similar to those made by the
appellant were rejected by the Third Circuit Court of Appeals
in construing the term "dangerous" in 18 U.S.C. 3575 (f), the
federal dangerous offender statute. United States v. Davis
(3rd Cir. 1983) , 710 F.2d 104. Indeed many other Courts of
Appeals have upheld this statute. -
See United States v.
Stewart (6th Cir. 1975), 531 F.2d 326, 336-37, cert. denied,
426 U.S. 922 (1976); United States v. Bowdach (5th Cir.
1977), 561 F.2d 1160, 1175; United States v. Neary (7th Cir.
1977), 552 F.2d 1184, 1194, cert. denied, 424 U.S. 864
(1977); United States v. Warme (2d Cir. 1978), 572 F.2d 57,
62, cert. denied, 435 U.S. 1011, 439 U.S. 981 (1978); United
States v. Cox (8th Cir. 1983) , 719 F.2d 285, cert. denied,
104 S.Ct. 1714 (1984).
We hold that 5 46-18-404(1) (b), MCA, is sufficiently
clear to guide the district courts in designating dangerous
offenders and does not violate defendant's right to due
process.
 Issue 11: Discretion of the District Court
A. Dangerous Offender Designation.
The appellant contends the District Court abused its
discretion in designating him a dangerous offender. In
support of this contention, appellant notes that the District
Court released Nichols on bail after conviction and prior to
sentencing. This, argues a.ppellant, was an implicit finding
that he was not dangerous to society. -
Cf. French v. Crist
(Mont. 1974) , 518 P. 2d 35. This Court has held that after
placing a defendant on probation and suspending the
defendant's sentence, a district court could not then later
designate the defendant as a dangerous offender when his
probation was revoked. Smith v. State (1980), 187 Mont. 225,
226-227, 606 P.2d 153 at 155. Furthermore, appellant notes
that there was no evidence in the record indicating he posed
a future threat. Next appellant argues that the court's
finding of fact no. 10 explicitly reveals the court relied on
matters precluded from consideration by S 46-18-404(2) (a),
MCA: that is, past juvenile convictions. That finding
includes determinations that the defendant had committed
burgary and was a drug abuser. Appellant strongly argues
that there is no evidence in the record to support those
determinations.
Lastly, the appellant contends that the district judge
impermissibly designated him a dangerous offender because the
judge did not like appellant's demeanor. Matter of McFadden
(Mont. 1980), 605 P.2d 599. The findings of fact and
conclusions of law which were filed in August, appear to the
appellant as a post hoc rationale for the dangerous offender
designation and do not comply with the requirement that the
court articulate the reasons for the designation at the time
of judgment. State v. Stumpf (Mont. 1980), 609 P.2d 298,

This Court notes that the factual basis of finding no.
10 is in the record. The Court may consider persistence in
criminal conduct and failure of earlier discipline to deter
or reform the defendant. State v. Maldonado (1978), 176
Mont. 322, 330, 578 P.2d 296, 301. The holding in Smith v.
State (Mont. 1980) , 606 P. 2d 153, does not apply because in
that case the defendant had previously been sentenced without
being designated as dangerous. Furthermore, § 46-18-404 (a),
MCA, does not prohibit evidence of juvenile offense, except
where the defendant was less than 18 at the time the
currently charged offense was committed. Nichols was 19 at
the time of the kidnapping. Finally, there is no
inconsistency between releasing the defendant on bail after
conviction and later designating him as a dangerous offender.
The judge properly considered matters arising between
conviction and sentencing in determining the designation.
Therefore we hold the District Court did not abuse its
discretion in designating the appellant as a dangerous
offender.
B. Enhancement.
Appellant argues that the statutory exceptions to the
statute which allows the sentencing court to enhance a
defendant's sentence when the offense was committed with a
dangerous weapon, apply in this case. The statutes in
question provide, in relevant part:
Section 46-18-221, MCA. Additional sentence for
offenses committed - - a danqerous weapon. ( 1 ) A
with
person who has been found guilty of any offense and
who, while engaged in t h e commission of the
offense, knowingly displayed, brandished, or
otherwise used a firearm,. ..
shall, in addition
to the punishment provided for the commission of
such offense, b e sentenced to a term of
imprisonment in the state prison of not less than
 two years or more than ten years, except
as provided - 46-18-222. (Emphasis added.)
in
Section 46-18-222, MCA. Mandatory minimum
sentences - restrictions on deferred imposition
and
- suspended execution of sentence. All mandatory
and
minimum sentences prescribed by the laws of this
state and the restrictions on deferred imposition
and suspended execution of sentence
apply if:
...do not

(2) the defendant's mental capacity, at the time
of the commission of the offense for which he is to
be sentenced, was significantly impaired, although
not so impaired as to constitute a defense to the
prosecution;
(3) the defendant, at the time of the commission
of the offense for which he is to be sentenced, was
acting under unusual and substantial duress, though
not such duress as would constitute a defense to
the prosecution.
Appellant contends he meets both of the exceptions laid
out in S 46-18-222(l) and (2), MCA. He argues that the
evidence introduced at trial, and stipulated for use at
sentencing, conclusively proves that his mental capacity was
significantly impaired and that he was acting under unusual
and substantial stress. Appellant cites statements by all
three mental health experts for support.
However, we find we do not need to reach the question of
the sufficiency of the evidence. Section 46-18-222, MCA,
does not apply in this case. Judge Davis did not pronounce a
minimum sentence. Section 46-18-222, MCA, does not apply in
cases where the maximum sentence is imposed. A careful
reading of the statute and this Court's holding in State v.
Stroud (Mont. 1984), 683 P.2d 459, 469, 41 St.Rep. 919, 931,
indicates that the purpose of the statute is to allow a judge
who would otherwise have to pronounce the minimum sentence,
to sentence a defendant to less than the minimum sentence
when the exceptions apply to the facts.
C. Sentencina for Homicide.
Comments made by the sentencing judge, as well as the
fact that the absolute maximum sentence in every respect was
imposed, causes the appellant to argue that the judge abused
his discretion. Despite the jury's verdict of not guilty of
homicide, the judge stated, "The defendant in my judgment is
morally if not equally legally responsible for the death of
A1 Goldstein and I can't sentence him for that." Appellant
contends this comment indicated the judge's complete
disagreement with the jury verdict. The appellant argues
that the jury's role as fact finder is the cornerstone of the
American justice system and cannot be disregarded. Appellant
cites a similar case, Commonwealth v. Sypin (Pa. Super.
1985), 491 A.2d 1371 where the sentencing court below had
remarked "And [disappeared children's] problems result from
men like you." The Appeals Court vacated the sentence and
remanded because "Appellant was not charged in connection
with the disappearance or death of any child." Sypin, 491
A.2d at 1372.
The State responds, and we agree, that the District
Judge acknowledged "and I can't sentence him for that." It
is therefore obvious from the record that the judge did not
base the sentence on the homicide charge. State v. Olsen
(Mont. 1380), 614 P.2d 1061, 1064. We hold there was no
abuse of discretion in this regard.
D. Consistency with the Evidence.
Appellant contends that the dangerous offender
designation effectively puts appellant's parole eligibility
beyond the time which would allow him to serve his sentence
at Swan River. Appellant contends all the mental health
experts recommended Swan River so he could continue his
rehabilitation through counseling. This, insists the
appellant, ignores the rehabilitative policy of this State.
We can find no inconsistency. Clearly the District
Court recognized the appellant's need for counseling, but
considered that the other factors required the sentence
given. The District Court left the determination of when the
appellant should be transferred to Swan River in the hands of
the Warden of the State Prison. This does not ignore the
rehabilitative policy of this State.
The sentence of the District Court is affirmed in all
respects.