No
No. 98-727
IN THE SUPREME COURT OF THE STATE OF MONTANA
1999 MT 180
295 Mont. 288
983 P.2d 937
STATE OF MONTANA,
Plaintiff and Respondent,
v.
ANTHONY LEE MONTOYA,
Defendant and Appellant.
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APPEAL FROM: District Court of the Twelfth Judicial District,
In and for the County of Hill,
The Honorable John Warner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jeremy S. Yellin, Attorney at Law, Havre, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General
Pamela P. Collins, Ass't Attorney General, Helena, Montana
David Rice, Hill County Attorney,
Aileen Miller, Deputy Hill County Attorney, Havre, Montana
Submitted on Briefs: May 27, 1999
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Decided: July 27, 1999
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1. Anthony Lee Montoya (Montoya) appeals from the sentence of the Twelfth
Judicial District Court, Hill County, designating Montoya as a persistent felony
offender based on a prior felony conviction from 1984. We affirm.
¶2. The sole issue on appeal is whether the District Court properly designated
Montoya a persistent felony offender based on his prior felony conviction.
Factual and Procedural Background
¶3. On May 17, 1984, pursuant to an earlier plea of guilty to three counts of felony
burglary, Montoya was sentenced to a three-year deferred imposition of sentence,
with conditions. Thereafter, Montoya signed up for the rules of probation. However,
authorities received a Report of Violation on June 20, 1985, which indicated that
Montoya was in violation of his conditions of probation, and a bench warrant for his
arrest was subsequently issued. After being apprehended and admitting probation
violations, Montoya was sentenced, on February 19, 1987, to five years in the
Montana State Prison, with all five years suspended. Thereafter, Montoya again
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signed up for rules of probation.
¶4. On October 24, 1990, authorities received another Report of Violation of
Montoya's conditions of probation. That same day, a bench warrant was issued for
Montoya's arrest. After being apprehended, Montoya's suspended sentence was
revoked and he was re-sentenced, on October 28, 1994, to the Department of
Corrections (DOC) for a five-year period, with two years suspended. The sentencing
court imposed conditions on the suspended portion of Montoya's sentence.
¶5. On December 1, 1994, Montoya was placed in the Great Falls Transitional Center
for completion of the Pre-Release Program. He was terminated from that program
due to alcohol use, and was thus returned to the Montana State Prison on January
11, 1995. On June 16, 1995, Montoya was transferred to the Alpha House Pre-
Release Program in Billings. On January 11, 1996, Montoya was released on parole
from the pre-release center. On June 16, 1996, Montoya was discharged from parole
and began serving the two-year suspended portion of his sentence. On December 18,
1996, a Report of Violation was submitted based on Montoya's failure to comply with
several conditions of his probation, and a bench warrant was issued.
¶6. However, Montoya had absconded; authorities did not know Montoya's
whereabouts until he was arrested on February 14, 1998, for a burglary and theft
incident. The incident giving rise to Montoya's arrest was alleged to have occurred
on or about March 23, 1997. On that date, a ranch south of Havre was burglarized
by Montoya and two accomplices. Thereafter, Montoya was positively identified in a
photographic lineup by an eyewitness to the burglary.
¶7. On February 17, 1998, Montoya and one of his accomplices were transported
from Great Falls in a patrol car to testify in the trial of the other accomplice. During
the drive, the deputy overheard Montoya make admissions about his involvement in
the ranch incident. On March 3, 1998, an Amended Information was filed charging
Montoya, in Count I, with felony burglary, in violation of § 45-6-204, MCA, and in
Count II, with misdemeanor theft, in violation of § 45-6-301, MCA.
¶8. On March 9, 1998, Montoya was arraigned and pleaded not guilty to the charges.
On that same day, the State filed a Corrected Notice of Intent to Seek Persistent
Felony Offender Status for Montoya. Trial by jury commenced on August 26, 1998.
On August 27, 1998, the jury returned a guilty verdict as to Count I, felony burglary,
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and a not guilty verdict as to Count II, misdemeanor theft.
¶9. A sentencing hearing took place on October 29, 1998. The District Court found
that the State had given timely notice of seeking persistent felony offender status for
Montoya, and that Montoya was a persistent felony offender within the meaning of §
46-18-501(2)(b), MCA. Although the suspended portion of Montoya's sentence for his
previous felony conviction could have been revoked because of the current felony
conviction, he was "allowed to terminate" his sentence for the 1984 burglary.
¶10. For Count I, felony burglary, the District Court sentenced Montoya to four
years in the Montana State Prison. Moreover, under the persistent felony offender
statute, Montoya was sentenced to an additional five years in the Montana State
Prison. However, because of "[t]he substantial time between the convictions of felony
offenses, and the non-violent nature of the crime," the District Court ordered the
sentence for burglary to run concurrently with the persistent felony offender
sentence.
Standard of Review
¶11. Although not put at issue by the parties, we note at the outset that there is a
rather prevalent inconsistency in this Court's case law regarding the appropriate
standard of review of criminal sentences. For example, in State v. Gunderson (1997),
282 Mont. 183, 936 P.2d 804, we declared, in a contradictory manner, that the
standard of review of a criminal sentence is as follows:
District Courts have broad discretion in sentencing criminal defendants. We review
criminal sentences only to determine whether the district court abused its discretion in
sentencing the defendant. State v. Graveley (1996), 275 Mont. 519, 521, 915 P.2d 184,
186. Our review of a sentence is limited to questions of legality, State v. Graves (1995),
272 Mont. 451, 463, 901 P.2d 549, 557, and a sentence is not illegal when it is within the
parameters provided by statute. State v. Henry (1995), 271 Mont. 491, 497-98, 898 P.2d
1195, 1199. [Emphasis added.]
Gunderson, 282 Mont. at 187, 936 P.2d at 806.
¶12. The above quotation sets forth plainly inconsistent standards of review.
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Questions of the equity of a sentence fall under the purview of the Sentence Review
Division, while this Court's review of a sentence is limited to questions of legality. A
question of legality, in turn, implies de novo review--a sentence is either legal or it is
not. Conversely, questions of equity are fact-specific and, thus, more appropriately
confined to abuse of discretion review.
¶13. We take this opportunity to clarify the proper standard of review of criminal
sentences. Tracing back through the case law from the 1997 Gunderson opinion
suggests that the source of confusion is probably State v. Davison (1980), 188 Mont.
432, 614 P.2d 489, in which this Court stated:
In other words, it is not to be presumed that a disparity in sentences imposed indicates
increased punishment for exercising the right to trial. A defendant must show abuse of
discretion. . . . This Court has . . . said that the extent of punishment is vested in the sound
discretion of the trial court. We note that the equitability of a sentence, as opposed to its
legality, is a matter for the Sentence Review Board.
In the present case, the sentence was well within the statutory maximum. The judge
outlined his reasons for the sentence and these reasons do not include the defendant's
decision to go to trial. The reasons given support the severity of the sentence given. There
was no showing of abuse of discretion. Consequently, the defendant was not denied his
right to a trial. [Emphasis added.]
Davison, 188 Mont. at 444, 614 P.2d at 496 (citations omitted); see also State v. White (1982), 200 Mont. 123,
128, 650 P.2d 765, 768, citing Davison ("[T]o undermine the legality of a sentence imposed on a defendant in the
District Court, abuse of discretion in the sentencing process is necessary.").
¶14. This Court's recognition in Davison that a challenge to the "equitability" of a
sentence falls under the authority of the Sentence Review Division is patently
inconsistent with the holding that the sentencing court did not abuse its discretion
because the "severity of the sentence"--clearly a matter of sentencing equity--was
supported by the evidence. In Davison, it appears that this Court was continuing to
do what it had done prior to the creation of the Sentence Review Division, namely, to
first review the sentence for legality within statutory parameters, and, assuming that
the sentence was not based on legal error, to then review the actual sentence imposed
in relation to the sentencing evidence under an abuse of discretion standard.
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¶15. It makes no sense under the present system of bifurcated criminal sentence
review to have such a two-tiered standard of review. The juxtaposition of an abuse of
discretion and a de novo standard of review that can still be found in contemporary
cases like Gunderson is a carry-over from the days when this Court reviewed all
sentencing challenges, prior to the creation of the Sentence Review Division. Today,
we lay to rest this anachronism. This Court reviews a criminal sentence only for
legality (i.e., whether the sentence is within the parameters provided by statute). To
the extent that Davison, White, Gunderson, and any other decisions from this Court
suggest that we also review criminal sentences for an abuse of discretion, they are
overruled.
¶16. Having clarified this Court's appropriate standard of review of criminal
sentences, we turn to the correct standard of review in this case. Montoya, rather
than challenging the actual sentence imposed, challenges the District Court's
conclusion that he could be designated a persistent felony offender pursuant to § 46-
18-501(2)(b), MCA. The District Court's designation of Montoya as a persistent
felony offender involves a question of statutory interpretation. We review a trial
court's interpretation of the law, including questions of statutory interpretation, to
determine whether the court's interpretation is correct. State v. Brummer, 1998 MT
11, ¶ 31, 287 Mont. 168, ¶ 31, 953 P.2d 250, ¶ 31; State v. Bell (1996), 277 Mont. 482,
486, 923 P.2d 524, 526.
Discussion
¶17. Did the District Court err in designating Montoya a persistent felony offender?
¶18. Section 46-18-501(2), MCA, provides that a defendant can be designated a
persistent felony offender if:
less than 5 years have elapsed between the commission of the present offense and either:
(a) the previous felony conviction; or
(b) the offender's release on parole or otherwise from prison or other commitment imposed
as a result of the previous felony conviction . . . .
Section 46-18-501(2), MCA (emphasis added).
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¶19. Montoya argues that the District Court incorrectly found that he was a
persistent felony offender because the approximate thirteen years separating his
prior felony conviction from his current felony conviction is far in excess of the five-
year time limit set forth in § 46-18-501(2)(b), MCA. In making this claim, Montoya
relies on State v. Smith (1988), 232 Mont. 156, 755 P.2d 569, asserting that his initial
probationary sentence for the 1984 felony conviction does not amount to a
"commitment" under § 46-18-501, MCA, and, therefore, that his probationary
period cannot be used to extend the five-year period under the statute. In sum,
Montoya claims that "the fact that he was sentenced to a period of commitment for
probation violations in 1994 cannot serve as the basis for a persistent felony
designation" because over five years had elapsed since he was first placed on
probation for the prior felony.
¶20. The State responds that Montoya was indeed "committed" to the DOC in 1994
pursuant to the 1984 conviction, from which he was released on parole on January
11, 1996. In turn, the State asserts that "the date the defendant is released on parole
from prison, or from other commitment, triggers the commencement of the five-year
period" in § 46-18-501(2)(b), MCA. Thus, the State contends that the District Court
properly designated Montoya a persistent felony offender under the statute, since (1)
Montoya's release on parole in 1996 triggered the start of the five-year period and (2)
less than five years elapsed between Montoya's release on parole and his 1998 felony
conviction. We agree.
¶21. Montoya misreads Smith in arguing that a defendant's probationary period for
a felony conviction cannot be used to increase the five-year period under § 46-18-501
(2)(b), MCA. In Smith, the defendant had been convicted of a prior felony in 1979
and sentenced to three years in prison, with all three years suspended with various
probationary conditions. On appeal, the State argued that the trial court had
properly sentenced the defendant as a persistent felony offender because the
defendant's prior suspended sentence constituted "commitment" and the defendant's
probationary period for the prior felony offense had terminated less than five years
before the second felony offense. This Court disagreed:
None of these probationary conditions constitute "commitment" under § 46-18-501(2)(b),
MCA. . . .
. . . "A person is committed when he [or she] is actually sentenced to confinement by a
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court as contrasted with a suspended sentence or probation."
Smith, 232 Mont. at 161, 755 P.2d at 572, quoting Black's Law Dictionary 248 (5th ed. 1979).
¶22. Smith makes it clear, as the State argues, that a defendant's release on probation
does not activate the five-year period of § 46-18-501(2)(b), MCA, because probation
does not constitute "commitment" under the statute. Indeed, the Smith Court drew a
crucial "distinction between probation and confinement in defining commitment,"
concluding that "the plain meaning of the word 'commitment' reveals that the period
of commitment begins when the defendant is handed over to law enforcement
personnel for confinement . . . ." Smith, 232 Mont. at 161-62, 755 P.2d at 572.
¶23. Montoya concedes that "he was sentenced to a period of commitment for
probation
violations in 1994," but argues that this scenario does not fall within the meaning of
commitment as contemplated in § 46-18-501(2)(b), MCA. He fixates on the dictum in
Smith that the five-year period begins "to run when the habitual offender is once again
free, if he or she chooses, to victimize society." Smith, 232 Mont. at 162, 755 P.2d at 572.
Based on this dictum, Montoya argues that he was "free" to victimize society when he was
given his initial suspended sentence in 1984 and that the five-year period was thus
triggered at that time, rather than when he was released on parole in 1996.
¶24. Not only is such dictum not binding precedent, see State v. Gopher (1981), 193
Mont. 189, 194, 631 P.2d 293, 296, but this Court was clearly referring to a defendant
being set "free" from prison or other commitment. As Smith held, probation does not
constitute "commitment." However, if probation is not commitment within the
meaning of the statute, then a suspended or probationary sentence cannot be an
event that triggers the commencement of the five-year period under the plain
language of the statute. See § 46-18-501(2)(b), MCA.
¶25. Moreover, as the State points out, this Court has indicated that the date on
which a defendant is released on parole from any sort of "confinement" for the
previous felony conviction triggers the commencement of the five-year period of § 46-
18-501(2)(b), MCA. For example, in State v. Ballard (1982), 202 Mont. 81, 655 P.2d
986, this Court recognized that:
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Section 46-18-501(2), MCA, classifies a person as a persistent felony offender if less than
five years have elapsed between the commission of the present offense and defendant's
release on parole for the previous felony conviction. The present offense occurred on
February 14, 1981, and defendant was paroled from his previous felony conviction
(burglary) on March 17, 1976, clearly falling within the five-year time limit.
Ballard, 202 Mont. at 87, 655 P.2d at 989.
¶26. Even more on point for purposes of the State's argument on persistent felony
offender status is our discussion in State v. Graves (1990), 241 Mont. 533, 788 P.2d
311:
Here, defendant was previously convicted of mitigated deliberate homicide on February
19, 1980, and was paroled on that offense on October 9, 1985. Defendant was convicted of
the offenses associated with the present appeal on March 29, 1989. Therefore, defendant
met the definitional requirements of a persistent felony offender.
Graves, 241 Mont. at 540, 788 P.2d at 315. Graves makes it clear that "release on parole or otherwise from
prison or other commitment," § 46-18-501(2)(b), MCA, triggers the commencement of the statutory five-year
period, irrespective of whether the prior felony conviction occurred more than five years in the past.
¶27. Here, Montoya's initial suspended sentence for his 1984 felony burglary
conviction was revoked and he was re-sentenced to the Montana State Prison for five
years in 1994,
with two years of his sentence suspended with conditions. Montoya was then released
on parole from that "commitment" in 1996. Under § 46-18-501(2)(b), MCA, the five-
year period therefore began to run on January 11, 1996, and Montoya's subsequent
1998 felony conviction was well within the five-year time limit of the statute.
Accordingly, we hold that the District Court did not err in designating Montoya a
persistent felony offender.
¶28. Montoya also attempts to argue that the plain meaning of the word "persistent,"
as illustrated by an ordinary dictionary definition, supports his position that he was
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improperly designated a persistent felony offender by the District Court. However,
we decline to address this argument. As the State points out, an ordinary definition of
the word "persistent" is irrelevant because § 46-18-501, MCA, and this Court's case
law specifically define the phrase "persistent felony offender." Section 1-2-106, MCA
(technical words and phrases that have acquired a "peculiar and appropriate
meaning in the law" are to be construed according to such particularized meaning or
definition).
¶29. Affirmed.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ KARLA M. GRAY
/S/ WILLIAM E. HUNT, SR.
/S/ JAMES C. NELSON
/S/ TERRY N. TRIEWEILER
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