No. 80-104 INTHE SUPREME COURT OF THE STATE OF MONTANA 1980

STATE OF MONTANA, Plaintiff and Respondent,

VS

# . MIKE K. KYLE, Defendant and Appellant.

Appeal from: DistrictCourt of the Third Judicial District, In and for the County of Powell, Honorable Robert Boyd, Judge presiding.

Counsel of Record: For Appellant: Byron W. Boggs, Anaconda, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Ted L. Mizner, County Attorney, Deer Lodge, Montana

Submitted on briefs: May 27, 1980 Decided: 

## JUL

## 28

# 7980Mr. Justice John Conway Harrison delivered the Opinion of the Court. Appellant Kyle appeals from his conviction inthe DistrictCourt, Third Judicial District, Powell County, of the charge of felony escape inviolation of section 45-7- 306(3)(b)

## , MCA. The case

### was submitted to the DistrictCourt on an agreed statement of facts. On October 18, 1978, the Dis

### trict Court, Cascade County, sentenced appellant Kyle to

seven years in the Montana StatePrison for criminal 

### mischief and eightyears forburglary. The sentences 

### were to be served concurrently. On February 27, 1979, Kyle was transferred from the StatePrison to the Swan River Youth Forest Camp. Kyle leftthe Youth Camp without authorization

on August 23, 1979. On November 2, 1979, Kyle turned himself over toFlorida authorities for return toMontana. Based on these facts, Kyle was found guilty of felony escape under section 45-7-306(3) (b),MCA, and was sentenced to three years inthe StatePrison. The sentencewas to run consecutively with any other unserved sentences. The sole issue forreview 

### iswhether Kyle's departure from the Youth Camp 

### is a felony escape under section 45-7- 306(3)(b)

## , MCA. Appellant argues ashis sole defense that the recent

case of Statev. Whiteshield (1980), 

### -Mont. 

## , 605 P.2d 189, 37 St.Rep. 89, controls here. In that case, 

### we held that a departure from a work furlough is not an escape from the StatePrison. Wehold here that theWhiteshield rationale does not apply. InWhiteshield thisCourt cited three reasons why an escape of a prisoner on furlough does not constitute a

### felony escape. First, 

### we noted that the defendants inWhiteshield each escaped while they had freedom tomove about the 

### cities where they were on furlough. Second, we examined the furlough statuteand found it 

### inadequate when read with the escape statutetodemonstrate a legislative intent that escape while on furlough justifies a felony punishment. And third, 

### we emphasized the Commission Comment accompanying the escape statute. Appellant's case is

### distinguishable from Whiteshield within the contextof each of the three reasons applied by thisCourt. First, persons incarcerated atthe Swan River Youth Forest Camp arenot free tomove about inthe same
manner as a person on furlough. Detention atthe Swan River facilityis similar toa minimum security status atthe main prison. In fact, allof the residents of the Swan River facility have come there from the prison through a classification process. A 

### strictercriteria for furlough eligibility along with the necessity of approval from the Board of Pardons demonstrates a lesser risk factor with respect to the inmates on furlough. Persons assigned to Swan River Youth Forest Camp are still

### very much inprison and subject to its authority. Second, section 45-7-306 (3)

### (b)(i) 

## , MCA, 

### contemplates escape from the Swan River facility. That section provides: "A person convicted of the offense of escape shallbe:

"(b)

### imprisoned inthe stateprison for a term not toexceed 10years if he: "(i) 

### escapes from a 

### stateprison, county jail, or cityjail 

# .. ."The 

### term "a stateprison" isnot defined inthe Criminal Code. However, the legislature's use of themodifier "a" rather than "the" indicates that 

### it did not intend that the 

### termbe read exclusively. To paraphrase this Court's language inWhiteshield, 

### it fliesinthe face of common sense to say that Swan River isnot a "prison." Only felons 

### are committed to Swan River and only through the Montana State Prison. Finally, the purposes expressed inthe Commission Comment accompanying the escape statute support the conclusion that escape from the Swan River Youth Forest Camp 

### is a felony escape. The firstparagraph of the Commission Comment reads: "[This section] classifies escapes according to the risk they create. Punishment 

### ismore severe for the offense when committed by the use of or threat of force, physical violence, weapon or simulated weapon. The grading of the offense by relying on the prisoner's use of force 

### is actually a return to the common law, since earlycommon 

### lawclearlydistinguished between escapes with and without use of force. The grading scheme implicit in the old code by which punishment 

### isprovided inreference to the type of confinement, 

### is not entirely abandoned in section 94-7-306. [Now section 

### 45-7- 306, MCA.] For example, use of force inescaping from a noninstitutional detention calls for a 

### lesser punishment than escape from the prison or county or cityjail. Further, an escape without use of force from a noninstitutional detention asprovided in subsection 3(e) removes the offense from the felony category altogether." The above comment draws 

### a clear distinctionbetween institutional and noncustodial or noninstitutional detention by itsuse of the latter terms. There isno question that the Swan River Youth Forest Camp 

### is a detention facility, staffed by persons charged at

### least inpartwith the task of preventing escape from the facility. Certainly the risk created by an escape from Swan River ismuch greater than

### the risk created by the escape of an individual who is on furlough. Consistent with the legislative purpose of classifying escapes in accordance with the risks they create,we find the District Courtproperly deemed appellant's escape to be of felony proportions. The judgment of the District Court is affirmed.

We concur:

Chief Justlce

### Mr. Justice John C. Sheehy dissenting:
This case is controlled by State v. Whiteshield (1980), Mont

# . , 605 P.2d 189, 37 St.Rep. 89. The majority in 

### - - this case is backtracking from the position we took in Whiteshield to the effect that whether escape is a felony or a misdemeanor depends upon the degree of risk which the escape creates. This was obviously the intent of the commission that drew up the statute and it was also our intent in handing down the decision in Whiteshield. To be clear about it, Swan River Youth Forest Camp is not a state prison. It is true that only felons are committed to the camp,but it is also true that only felons are placed

on furlough, and in Whiteshield, that single factor was not enough for us to decide that an escape from a furlough was a felony. Under sections 41-5-523(2)(b)and 41-5-523(3), MCA, a delinquent youth between sixteen and twenty-one years of age may not be committed or transferred to a penal institution or other facility used for the execution of sentence of able persons convicted of crimes unless there is first a determination made as to whether the youth should be assigned to the Youth Forest Camp. Contrary to what is said in the majority opinion, the Youth Forest Camp is not a prison, but is rather

a place where a work program is established by the camp superintendent and the Department of Natural Resources and Conservation (section 53-30-205,MCA) to rehabilitate the youthful offender. The very purpose of the legislature in establishing

a Youth Forest Camp was to avoid imprisonment of youthful offenders in the state prison. While Youth Forest Camp residents are not free to move

### about like persons on furlough, this should not be 

### a point of emphasis in our decision. Our escape statute places less emphasis on the type of confinement than on the type of risk created 

### by the escape. I would reverse the District Court.