State v. Stevens

NO. 92-604
IN THE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
N R i A LEE STEVENS,
OIIN
Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Jack L. Green, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Timothy J. Lape, Attorney at Law, Missoula
Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Barbara
Harris, Assistant Attorney General, Helena, Montana
Robert L. Deschamps, 111, Missoula County Attorney,
Betty Wing, Deputy Missoula County Attorney,
Missoula, Montana

Submitted on Briefs: June 1, 1993
Decided: June 21, 1993
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.

Norman L. Stevens appeals from certain sentencing provisions
contained in a judgment entered by the Fourth Judicial District
Court, Missoula County. We reverse and remand.
The dispositive issue on appeal is whether the District Court
failed to properly sentence the defendant under applicable
sentencing statutes.
Norman L. Stevens was charged in an October 8, 1992 Second
Amended Information with two counts of felony sexual assault
alleged to have been committed in July and August, 1991. He pled
guilty. A presentence investigation report was ordered and
received and a sentencing hearing was held. Thereafter, the
District Court sentenced Stevens to a term of twenty years*
imprisonment in the Montana State Prison on each count, the
sentences to run concurrently; ten years of each sentence was
suspended on specific conditions of probation. Judgment was
entered on the conviction and sentence. Stevens appeals.
Did the District Court err in failing to properly sentence the
defendant under applicable sentencing statutes?
Criminal sentencing alternatives are strictly matters of
statute in Montana. Certain statutes also impose affirmative
obligations on a sentencing court. Here, the parties agree that
the District Court erred in failing to sentence Stevens in
accordance with applicable statutes, namely 6 5 46-18-201, 46-18-
223, and 46-18-225, MCA.
It is undisputed that Stevens is a nonviolent felony offender
2
pursuant to the statutory definition contained in 9 46-18-104(3),
MCA, of "a person who has entered a plea of guilty to a felony
offense other than a crime of violence or who has been convicted of
a felony offense other than a crime of violence." It also is clear

that § 46-18-201(10), MCA, imposes certain obligations on a court
sentencing such an offender:
In sentencing a nonviolent felony offender, the
court shall first consider alternatives to imprisonment
of the offender in the state prison, including placement
of the offender in a community corrections facility or
program. In considering alternatives to imprisonment,
the court shall examine the sentencing criteria contained
in 46-18-225. If the offender is subsequently sentenced
to the state prison or a women's c~rrectionalfacility,
the court shall state its reasons why alternatives to
imprisonment were not selected, based on the criteria
contained in 46-18-225.
Nothing in the judgment or the remainder of the record before us
indicates that the court considered alternatives to imprisonment in
sentencing Stevens, as required by § 46-18-201(10), MCA. Nor, in
sentencing Stevens to the state prison, did the District Court meet
the second requirement of 5 46-18-201(10), MCA, namely, that it
state its reasons why alternatives to imprisonment were not
selected. Finally, the judgment does not affirmatively reflect
that the criteria contained in 9 46-18-225, MCA--which pursuant to
that statute's terms and the language of 5 46-18-201(10), MCA,
quoted above--were taken into account by the court in any manner.
In addition, Stevens specifically raised the issue of the
court's authority, pursuant to § 46-18-222(6), MCA, to except him
from the mandatory minimum sentence otherwise provided by law for
a person convicted of felony sexual assault; he did so in a
"sentencing memorandum" dated prior to the sentencing hearing. The
District Court did not refer to or address this issue in its
judgment.
We hold that the District Court failed to properly sentence
the defendant under applicable sentencing statutes. Because this
case must be remanded for resentencing, we need not address the
other sentence-related issues Stevens raises.
REVERSED and REMANDED.
 June 21, 1993

CERTIFICATE O F SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:

Timothy J. Lape
Attorney at Law
P.O. Box 8164
Missoula, MT 59807-8164

Hon. Joseph P. Mazurek, Attorney General
Barbara C. Harris, Assistant
Justice Bldg.
Helena, MT 59620

ROBERT L. DESCHAMPS, 111, County Attorney
BETTY WING, Deputy County Attorney
Missoula County Courthouse
Missouta, MT 59802

ED SMITH
CLERK OF THE SUPREME COURT
STATE O F MONTANA