IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

STATE OF MONTANA, 

Plaintiff and Respondent, '>. , , . 

RONALD TIMBLIN, 

Defendant and Appellant. RP 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Thomas M. McKittrick, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Ronald Timblin, Pro Se, 

Deer Lodge, Montana 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General, 

Carol Schmidt, Assistant Attorney General, 

Helena, Montana 

Brant Light, Cascade County Attorney, 

Shawn M. Glen, Deputy County Attorney, 

Great Falls, Montana 

Filed: 

Submitted on Briefs: March 16, 1995 

Decided: April 25, 1995 
Justice William E. Hunt, Sr., delivered the opinion of the Court. 

Appellant Ronald Timblin, appearing pro se, appeals from an 

order of the Eighth Judicial District Court, Cascade County, 

sentencing him to 40 years in the Montana State Prison for the 

felony offense of sexual intercourse without consent; declaring 

appellant a dangerous offender for the purposes of parole; and 

declaring appellant ineligible for parole for the first 20 years of 

his sentence and until he completes the sexual offender treatment 

program at the prison. 

We affirm. 

The issues on appeal are: 

1. Did the District Court err in designating appellant a 

dangerous offender for purposes of parole under 5 46-18-404, MCA? 

2. Did appellant enter a voluntary and knowing guilty plea? 

3. Did the District Court violate appellant's due process 

rights in sentencing him to a prison sentence of 40 years and 

designating him a dangerous felony offender? 

4. Was appellant denied effective assistance of counsel? 

During divorce proceedings, appellant moved from the family 

home. On August 22, 1987, he picked up his three minor daughters 

for a scheduled visit. During this visit, appellant forcibly raped 

P.T., his 14-year-old daughter. In 1989, P.T. related to her 

boyfriend the events of August 22, 1987, as well as the history of 

abuse P.T. was subjected to by appellant. P.T.'s boyfriend 

informed P .T. ' s mother of the abuse, who in turn contacted the 
Great Falls Police Department. On June 5, 1989, appellant was 

charged by information under § 45-5-503, MCA, with felony sexual 

intercourse without consent, to which he pled not guilty. 

A bench trial was held on October 30 and 31, 1989. Prior to 

the trial, the State learned that P.T.'s account of the events of 

August 22, 1987, differed from the account of her siblings, C.T. 

and K.T. Appellant learned of the inconsistent accounts during the 

trial. Appellant made a motion to compel the State to produce C.T. 

and K.T., and a motion to continue the trial until the witnesses 

could be subpoenaed. The district court denied appellant's 

motions. The court found appellant guilty as charged and sentenced 

him to 35 years in the Montana State Prison, with 5 years 

suspended. 

We reversed appellant's conviction, concluding that the 

district court abused its discretion by not granting appellant's 

motion for a continuance. State v. Tirnblin (1992), 254 Mont. 48, 

834 P.2d 927. 

After the District Court set a new trial date, appellant 

entered a guilty plea, signed an acknowledgement of waiver of 

rights and a plea agreement. The District Court sentenced 

appellant to 40 years in the Montana State Prison for the offense 

of felony sexual intercourse without consent under § 45-5-503, MCA. 

The District Court declared appellant a dangerous offender for 

parole purposes, and declared him ineligible for parole for the 

first 20 years of his sentence and until he completes the sexual 
offender treatment program at the prison. Appellant appeals his 

sentence. 

ISSUE 1 

Did the District Court err in designating appellant a 

dangerous offender for parole purposes under 5 46-18-404, MCA? 

The designation of an offender as either dangerous or 

nondangerous is governed by 5 46-18-404, MCA, which provides in 

pertinent part: 

(1) . . . the sentencing court shall designate an 

offender a nondangerous offender for the 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. 

Subsection (1) of the statute sets forth a two-part test under 

which an offender can be designated nondangerous. The district 

court can designate the offender as nondangerous only if the 

offender meets both criteria set forth in subsections (a) and (b) . 

If the offender satisfies only one prong of the two-part test, the 

district court may, in its discretion, designate the offender as 

dangerous for the purposes of parole. State v. Buckman (1989) , 236 

Mont. 37, 40, 768 P.2d 1361, 1362; State v. Dahl (1980), 190 Mont. 
"When using its discretion to determine offender status, the 

district court 'may consider persistence in criminal conduct, and 

failure of earlier discipline to deter or reform the defendant.'" 

Buckman, 768 P.2d at 1361, (quoting State v. Nichols (1986), 222 

Mont. 71, 82, 720 P.2d 1157, 1163). The sentencing court must 

articulate its reasons for designating an offender as dangerous, 

rather than merely recite the statutory language of 5 46-18- 

404(l) (a) and (b), MCA. State v. Morrison (l993), 257 Mont. 282, 

287, 848 P.2d 514, 516; Buckman, 768 P.2d at 1361. 

After considering the presentence reports, the District Court 

articulated in detail its reasons for designating appellant a 

dangerous offender. The District Court concluded that appellant is 

manipulative, without remorse, and represents a danger to his 

victim, his family, society in general, and in particular, female 

juveniles. The District Court further concluded that appellant 

will re-offend if given the opportunity, and that appellant is not 

amenable to rehabilitation. 

We hold that the District Court did not err in designating 

appellant a dangerous offender for parole purposes under 

§ 46-18-404, MCA. 

ISSUE 2 

Did appellant enter a knowing and voluntary guilty plea? 

Appellant argues that the District Court did not inform him 

that it could place parole restrictions on his sentence, therefore, 
his guilty plea was not given voluntarily or knowingly. The record 

does not support appellant's argument. 

To ensure voluntary pleas, § 46-12-204(2), MCA, provides that 

the district court may not accept a guilty plea without first 

determining that the plea is voluntary and not the result of force 

or threats or promises apart from the plea agreement. A trial 

court's interrogation of a defendant seeking to enter a guilty plea 

is sufficient if the judge 

examines the defendant, finds him to be competent, and 

determines from him that his plea of guilty is voluntary, 

he understands the charge and his possible punishment, he 

is not acting under the influence of drugs or alcohol, he 

admits his counsel is competent and he has been well 

advised, and he declares in open court the fact upon 

which his guilt is based. 

State v. Mahoney (1994), 264 Mont. 89, 97, 870 P.2d 65, 69 (quoting 

State v. Walter (1986), 220 Mont. 70, 74, 712 P.2d 1348, 1350). 

Specifically, the trial court should interrogate the defendant 

pursuant to the criteria set forth in § 46-12-210, MCA. 

The record demonstrates that before accepting defendant's 

guilty plea, the District Court interrogated appellant pursuant to 

§ 46-12-210, MCA, as to his competence, his understanding of the 

implications of a guilty plea in terms of rights waived and rights 

retained, whether appellant was acting under the influence of 

alcohol or drugs, and whether appellant was satisfied with counsel. 

The District Court advised appellant that a plea agreement was a 

recommendation that the court was not bound to follow. The 

District Court explained the maximum punishment for the charged 
offense. The District Court established the factual basis for 

appellant's guilt by having him recite with specificity the acts he 

committed that resulted in the charged offense. The record also 

discloses that appellant executed an acknowledgement of waiver of 

rights by plea of guilty and plea agreement which provides that 

"[elach party understands that the presiding District Court Judge 

can designate the defendant as a dangerous offender as well as 

limit his eligibility for parole and work release furlough 

programs." The District Court accepted appellant's guilty plea 

after interrogating him pursuant to 5 46-12-210, MCA, and 

concluding that appellant's plea was voluntary and knowing. 

We hold that appellant's plea of guilty to the charged offense 

was knowing and voluntary. 

ISSUE 3 

Did the District Court violate appellant's due process rights 

in sentencing him to a prison sentence of 40 years and designating 

him a dangerous felony offender? 

The District Court Judge presiding over appellant's first 

trial sentenced him to a prison term of 35 years, with five years 

suspended. After pleading guilty in lieu of a second trial, 

appellant was sentenced to a prison term of 40 years by a second 

District Court Judge . Appellant argues that the 40-year sentence 

imposed by the second District Court Judge was motivated by 

judicial vindictiveness because appellant successfully attacked his 
first conviction. Appellant contends that the increased sentence 

violates his due process rights. 

"Due process guarantees resentencing free from vindictiveness 

stemming from reversal." State v. Forsyth (19881, 233 Mont. 389, 

421, 761 P.2d 363, 383. However, where a different judge sentences 

on retrial, the presumption of vindictiveness that is created by a 

sentence increase on remand no longer exists. Forsvth, 761 P. 2d at 

384; Texas v. McCullough (1986), 475 U.S. 134, 106 S.Ct. 976, 89 

L.Ed.2d 104. Because the first sentencing judge was replaced in 

the present case, there is no presumption of vindictiveness. 

Consequently, appellant must show actual vindictiveness. Forsvth, 

761 P.2d at 384. Appellant has made no showing of actual 

vindictiveness. 

We hold that the District Court did not violate appellant's 

due process rights by sentencing him to a prison term of 40 years. 

In Issue 1 we held that the District Court did not err in 

designating appellant a dangerous offender. For the reasons set 

forth in Issue 1, we hold that the District Court did not violate 

appellant's due process rights by designating him a dangerous 

offender . 

ISSUE 4 

Was appellant denied effective assistance of counsel? 

We have adopted the two-prong test set forth in Strickland v. 

Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, 

when determining whether counsel was effective. Mahonev, 870 P.2d 
at 72-73. A defendant must first show that counsel's performance 

was deficient by demonstrating that counsel was not functioning as 

guaranteed by the Sixth Amendment to the United States 

Constitution. A defendant must next show that counsel's deficient 

performance so prejudiced him that he was deprived of the right to 

a fair trial. Mahonev, 870 P.2d at 72-73. However, when a guilty 

plea is involved, the defendant must show that but for counsel's 

deficient performance, the defendant would not have pled guilty and 

would have insisted on going to trial. State v. Langford (1991), 

248 Mont. 420, 432, 813 P.2d 936, 946. 

In Issue 2, we concluded that appellant ' s plea was knowing and 

voluntary. In addition, there is nothing in appellant's brief or 

the record to show that counsel's performance was deficient or 

that, but for counsel's performance, appellant would not have pled 

guilty and would have insisted on going to trial. 

We hold that appellant received effective assistance of 

counsel. 

We affirm. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of the Supreme Court and by a report of its result 

to Montana Law Week, State Reporter and West Publishing Company. 

Justice 
We concur: 

Chief Justice 
prepaid, to the 

COURT 

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