NO. 94-340
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
Defendant and Appellant
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Edward P. McLean, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William F. Hooks, Appellate Defender Office,
Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Kathy Seeley, Assistant Attorney General,
Helena, Montana
Robert L. "Dusty" Deschamps, III, Missoula
County Attorney, Daniel Safransky, Deputy
County Attorney, Missoula, Montana
Submitted on Briefs: June 20, 1995
Decided: September 8, 1995
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
The defendant, Ronald D. Pence, WEIS charged by amended
information, filed in the District Court for the Fourth Judicial
District in Missoula county, with robbery, in violation of
§ 45-5-401, MCA. He pled guilty to that charge. The District
Court imposed a three-year deferred sentence subject to conditions.
Pence violated several of the conditions, and pursuant to a
petition to revoke his deferred sentence, the District Court
sentenced Pence to 40 years in prison, with 25 years suspended, and
declared Pence a dangerous offender. Pence appeals the District
Court's order. We reverse the District Court.
The issues raised on appeal are:
1. Did the District Court err when it designated Pence a
dangerous offender for purposes of parole eligibility?
2. Did the District Court err when it failed to consider
alternatives to imprisonment?
FACTUAL BACKGROUND
On September 5, 1992, Frank Vannoy went to his rental property
in which Pence was living to collect past-due rent. Pence paid
Vannoy the money. Vannoy then gave Pence a 30-day eviction notice,
to which Pence allegedly responded, "you are never going to get me
out. 11 After this brief encounter, Vannoy got into a car occupied
by his sister and brother-in-law. Pence then exited the rear
entrance of his home. Vannoy insists, and Pence denies, that Pence
had a shotgun with him and "demanded us to halt." Vannoy alleged
2
that Pence approached the car, pointed the shotgun at him, his
sister and brother-in-law, and demanded the rental money which had
been paid. Pence denied Vannoy's account of the incident. He
admitted that he exited the rear entrance of the rental property,
but asserted that he did not have a shotgun.
On September 21, 1992, Pence was charged by information filed
in the District Court for the Fourth Judicial District Court,
Missoula County, with robbery, pursuant to § 45-5-401, MCA, and two
counts of felony assault, pursuant to 5 45-5-202, MCA, for this
incident, and also with theft, pursuant to § 45-6-301, MCA, for an
unrelated incident. The information specified that, for purposes
of the robbery charge, Pence put Frank Vannoy "in fear of immediate
bodily injury by pointing a shotgun at him."
Pence pled not guilty to all four charges. The Missoula
County Attorney's office, on June 1, 1993, filed an amended
information, charging Pence with robbery. The amended information
specified that Pence, while in the course of a theft of $300,
"threatened to inflict bodily injury upon Frank Vannoy." The
amended information did not specify that Pence used a shotgun to
commit the robbery. Pence pled guilty to the robbery charge. In
his written guilty plea, Pence indicated that he had taken "$300
from Frank Vannoy[,l threatening him if he didn't give it to me."
The District Court received a presentence investigation
report, and on September 2, 1993, ordered Pence's imposition of
sentence deferred for three years, subject to compliance with
3
16 terms and conditions of probation. The relevant terms and
conditions included that: (1) Pence not enter any establishment
whose primary source of business comes from the sale of alcohol;
(2) Pence not possess or use any alcoholic beverages or use any
illegal drugs; (3) Pence submit to blood, breath, and/or urine
testing for the purpose of alcohol and/or drug detection upon the
request of his probation officer; and (4) Pence obtain counseling
as directed by his probation officer. Subsequently, Pence violated
all four of these terms and conditions. In addition, Pence
violated a state probation rule that prohibits probationers from
owning, possessing, or being in control of firearms or deadly
weapons.
Pence's probation officer filed a report of probation
violation in the District Court. The report indicated that Pence
admitted possession of a firearm and the use of marijuana. As a
result, Pence's probation officer had Pence's truck searched.
Ammunition, a pocket knife, a wooden club, and a "bullet-riddled
silhouette target" were found in the truck. Additionally, the
report indicates that, as a result of a search of Pence's home,
probation officers located several firearms.
The report recommended that the District Court revoke Pence's
three-year deferred sentence, and that the court sentence Pence to
seven years in prison, with three years suspended. The report also
recommended that the court consider Pence for the intensive
supervision program.
The District Court held hearings to consider the alleged
probation violations. At the initial hearing, Pence admitted all
violations except the weapons violations. At a subsequent hearing,
Pence's probation officer provided testimony to substantiate the
weapons violations.
At the conclusion of Pence's probation officer's testimony,
the District Court found that Pence had violated the terms of his
probation. The court revoked its earlier deferred sentence and
sentenced Pence to 40 years in the Montana State Prison, with
25 years suspended. The District Court's rationale for its ruling
was as follows: that Pence had placed Frank Vannoy in great fear;
that Pence had signed two documents indicating that he knew that
possessing weapons violated his probation; that the court took a
great risk in placing Pence on probation in light of the fact that
Pence had used a weapon during the commission of the robbery; and
that Pence did not appreciate the court's probationary sentence and
went back to his previous behavior of possessing firearms.
The court designated Pence a dangerous offender for purposes
of parole eligibility, based on its conclusion that Pence's
attitude about the use of firearms mandated such a designation.
Immediately following the District Court's oral ruling,
Pence's counsel asked the judge to reconsider his sentence,
pointing out that the court was required to consider alternatives
to incarceration. The court denied counsel's request, stating
that, I' [tlhe Court considered alternative placement prior to
5
today's proceeding. The Court is greatly concerned when there are
violations of an armed robbery who [sic] turns around and
possesses, I believe, six different types of weapons."
Pence appeals the District Court's judgment.
ISSUE 1
Did the District Court err when it designated Pence a
dangerous offender for purposes of parole eligibility?
We review a district court's dangerous offender designation to
determine whether the District Court abused its discretion. state ".
Buckman (1989), 236 Mont. 37, 40, 768 P.2d 1361, 1363.
Dangerous offender designation is based on § 46-18-404(l),
MCA, which provides:
Except as provided in subsection (4), the sentencing
court shall designate an offender a nondangerous offender
for purposes of eligibility for parole . 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 represent a substantial danger to other persons or
society.
If the court finds that both subsections (a) and (b) of the
statute have been satisfied, the court must designate the offender
nondangerous. However, if only one part of the statute applies to
the offender, it is within the court's discretion whether to
designate him dangerous for parole purposes. State v. Lorenz (Mont.
6
267 Mont. 186, 188, 883 P.2d 98, 99 (citing slate v. Mihv (1988) , 231
Mont. 497, 517, 757 P.2d 1275, 1287).
Section 46-18-404(3), MCA, requires that if a district court
designates an offender as dangerous, it shall make that
determination part of the sentence imposed and shall state the
determination in its judgment. In addition, we have required
district courts to articulate their reasons for designating an
offender as dangerous. We have held that mere recitation of the
statutory language is not sufficient. See state v. Morrison (1993) , 257
Mont. 282, 848 P.Zd 514.
In its judgment designating Pence a dangerous offender, the
District Court gave the following reasons:
1. Mr. Vannoy was placed in great fear by Mr.
Pence;
2. Mr. Pence was given a three year deferred
imposition of sentence;
3. He [Mr. Pence1 signed two documents stating
that he knew that the weapons possession meant that it
was in violation of his probation;
[4.1 The Court took a great risk in placing him [Mr.
Pence] on probation because it was an offense committed
with a weapon and Mr. Pence did not appreciate that and
went back to his previous behavior in possessing
firearms;
[5.] It is the Court's opinion that Mr. Pence cannot
at this time successfully complete a probationary period
without some incarceration;
16.1 The Court feels that until he [Mr. Pence1
changes his attitude about the use of firearms that it is
necessary to designate him a dangerous offender.
7
The District Court did not make specific findings in its
judgment that Pence had been convicted of, or incarcerated for, an
offense committed in the five years preceding the commission of the
robbery charge pending against him, or that Pence represented a
substantial danger to other persons or society. It is clear from
the record that Pence had never been either convicted of or
incarcerated for a felony. As a result, the District Court,was
free to designate Pence a dangerous offender only if it determined
that, based on the presentence report and any evidence presented at
the trial and sentencing hearing, Pence posed a substantial danger
to other persons or to society.
However, the court did not specifically find that Pence posed
a substantial danger to anyone. Furthermore, even if this Court
presumed such a finding, there was no clearly articulated rationale
to support such a finding, as required by our decision in Morrison.
Finally, we conclude that the record did not contain
substantial evidence upon which the District Court could support
designating Pence a dangerous offender, and therefore, that the
District Court abused its discretion when it did so. The District
Court's designation appears to be based on the facts that Pence
placed his victim in "great fear" by use of a weapon and then
continued to possess weapons in violation of the terms of his
probation. However, there is no basis in the record to find that
Vannoy was placed in "great fear." Pence denied using a weapon;
the crime to which he pled guilty did not involve use of a weapon;
8
and his sentence could not have been deferred if his conviction was
based on use of a weapon. Section 46-18-222(5), MCA. Neither does
mere possession of firearms establish that Pence presents a danger
to persons or society.
For these reasons, we reverse that part of the District
Court's sentence which designated Pence a dangerous offender.
ISSUE 2
Did the District Court err when it failed to consider
alternatives to imprisonment?
We review a district court's decision to revoke probation and
sentence an offender to prison to determine whether the court
abused its discretion. State v. Lundquist (1992) , 251 Mont. 329, 331,
825 P.2d 204, 206.
The State first contends that Pence is not a nonviolent
offender. The State asserts that, because Pence was charged with
robbery and because Vannoy alleged in the presentence investigation
that Pence used a shotgun to commit the robbery, he does not
qualify as a nonviolent offender. The State ignores the fact that
Pence did not plead guilty to a charge that alleged either the
threat of, or actual use of, a deadly weapon during the commission
of the crime. Section 46-18-104(3), MCA, defines a nonviolent
felony offender as "a person who has entered a plea of guilty to a
felony offense other than a crime of violence . .' (Emphasis
added.) Section 46-18-104(Z), MCA, defines a crime of violence as:
(a) a crime in which an offender uses or possesses
and threatens to use a deadly weapon during the
commission or attempted commission of a crime;
(b) a crime in which the offender causes a serious
bodily injury or death to a person other than himself; or
(c) any sexual offense in which the offender causes
bodily injury to the victim or uses threat, intimidation,
or force against the victim.
Pence did not plead guilty to a "crime of violence," and unproven
allegations in the presentence report do not change the nature of
his crime. Consequently, we conclude that Pence is a nonviolent
offender
The State contends, in the alternative, that even if Pence is
a nonviolent offender, the District Court adequately considered
alternatives to imprisonment. We disagree. The statutory scheme
quite clearly sets out the steps a district court must take when
sentencing a nonviolent felony offender. Section 46-18-201(10),
MCA, states that:
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 the women's correctional center, the
court shall state its reasons why alternatives to
imprisonment were not selected, based on the criteria
contained in 46-18-225.
Section 46-18-225, MCA, states that:
Prior to sentencing a nonviolent felony offender to a
term of imprisonment in the state prison or the women's
correctional center, the court shall take into account
whether:
(1) the interests of justice and the needs of
public safety truly require the level of security
10
provided by imprisonment of the offender in the state
prison or the women's correctional center;
(2) the needs of the offender can be better served
in the community or in a facility or program other than
the state prison or the women's correctional center;
(3) there are substantial grounds tending to excuse
or justify the offense, though failing to establish a
defense;
(4) the offender acted under strong provocation;
(5) the offender has made restitution or will make
restitution to the victim of the offender's criminal
conduct;
(6) the offender has no prior history of conviction
for a criminal act or has led a law-abiding life for a
substantial period of time before the commission of the
present crime;
(7) the offender's criminal conduct was the result
of circumstances that are unlikely to recur;
(8) the character and attitude of the offender
indicate that the offender is likely to commit another
crime;
(9) the offender is likely to respond quickly to
correctional or rehabilitative treatment; and
(10) imprisonment of the offender would create an
excessive hardship on the offender or the offender's
family.
As we have already concluded, Pence is a nonviolent felony
offender. Therefore, the District Court was bound to apply the
procedure required by §§ 46-1%201(10) and -225, MCA. In State v.
Stevens (19931, 259 Mont. 114, 116, 854 P.2d 336, 337, we stated that
5 46-l&201(10), MCA, imposes certain obligations on a court when
sentencing a nonviolent felony offender
Initially, a district court must consider alternatives to
imprisonment. Second, in considering alternatives to imprisonment,
a district court must examine the ten sentencing criteria found in
§ 46-18-225, MCA. Finally, if a district court decides against
11
alternatives to imprisonment, it must provide reasons why it did
not select alternatives. Stevens, 854 P.2d at 337.
The State contends that the District Court's cursory statement
in the sentencing hearing that, 'I [tlhe Court considered alternate
placement prior to today's proceeding, 'I "affirmatively establishes"
that the court considered alternatives to imprisonment. However,
even if we accepted the State's liberal application of
§ 46-l&201(10), MCA, the District Court still failed to comply
with the second and third Stevens requirements.
The District Court's judgment makes no mention of the factors
set forth in 5 46-18-225, MCA, and fails to discuss why, when
considering those factors, an alternative to imprisonment might not
have been appropriate in this case.
For these reasons, we reverse that part of the District
Court's judgment which designated Pence a dangerous offender; and
we vacate the remainder of the sentence and remand for further
consideration of his sentence in light of §§ 46-18-201(10) and
-225, MCA.
We concur: