NO. 87-248 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsTRACY DOUGLAS SMITH, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Thomas McKittrick, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Leonard J. Haxby, Butte, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Barbara Claassen, Asst. Atty. General, Helena 

Patrick L. Paul, County Attorney, Great Falls, Montana 

Stephen Hagerman, Deputy County Atty., Great Falls 

Submitted on Briefs: March 24, 1988 

Decided: May 26, 1988 

Filed : 

MAY 2 6 1988 

Clerk 
Mr. Justice R. C. McDonough delivered the Opinion of the 

Court. 

This is an appeal from a criminal conviction. A jury in 

the Eighth Judicial District found appellant Tracy Douglas 

Smith guilty of aggravated kidnapping. Smith was sentenced 

to 25 years in prison for the offense, with 10 years 

suspended. Smith also received an additional sentence of 10 

years for being a persistent felony offender, and 5 years for 

the commission of a crime with a weapon. Smith appeals the 

conviction and the sentencing. We affirm as to issues 1,2,3, 

and 5, and reverse issue 4 in regard to Smith's enhanced 

sentence for being a persistent felony offender. The other 

subissues in issue 4 are affirmed. 

Smith raises the following issues for review: 

(1) Did the Court err in denying Smith's motion to 

dismiss for violation of Smith's right to a speedy trial? 

(2) Did ineffective assistance of counsel result in the 

denial of Smith's constitutional right to counsel? 

(3) Did prosecutorial misconduct result in abridgment 

or denial of Smith's constitutional rights? 

(4) Did the Court err by failing to follow substanti-ve 

and procedural requirements in sentencing Smith? 

(5) Did the Court err by failing to properly instruct 

the jury? 

The facts briefly are as follows: On July 5, 1986, 

Smith and three other individuals; Fred Gierke, Leland 

LaPier, and Kim Stevens, rode in LaPier's car to a Great 

Falls residence where Gierke hoped to find Vivian Tulickas. 

When they arrived they observed Tulickas and Tulickas's 

boyfriend, Steven Frey, entering Frey's car. Smith and 

LaPier approached Frey's car and LaPier ordered Tulickas out 
of the car while Smith restrained Frey. Tulickas, LaPier, 

and Smith then returned to LaPier's car where Gierke sat 

waiting to speak to Tulickas. After Tulickas was positioned 

in the back seat with Gierke, Gierke began to slap Tulickas 

and demand the return oE money he believed Tulickas had 

stolen from him. Gierke then ordered LaPier to drive to a 

field outside of town where he continued to beat Tulickas. 

Smith participated in the assault by holding a gun and by 

giving encouragement to Gierke to beat Tulickas more 

severely. During the beating, Tulickas denied stealing 

Gierke's money, but promised to give Gierke $100 and a bus 

ticket she claimed to have at a residence in Great Falls. At 

that point Gierke ceased assaulting Tulickas and agreed to 

take her back to Great Falls to retrieve the money and the 

ticket. 

After Lapier's car had carried Tulickas from the scene 

of the abduction, Frey called the police and reported the 

license number on the car. When LaPier's car appeared in 

Great Falls on its way to retrieve the money and the bus 

ticket, police spotted and stopped the vehicle, freed 

Tulickas, and arrested the other passengers. Smith ' s 

participation in the abduction resulted in the aggravated 

kidnapping conviction. 

Issue I. 

Smith claims that his right to a speedy trial was denied 

due to delay on the part of the State. The State contends 

that the delay from the date of arrest, July 6, 1986, to the 

date of trial, November 17, 1986, is not sufficiently long to 

trigger further speedy trial analysis. We agree with the 

State. 

The length of delay is the first of four factors to be 

considered in analyzinq speedy trial claims. State v. Kerns 
(Mont. 1986), 725 P.2d 1190, 1191, 43 St.Rep. 1632, 1635. 

And unless the delay is "long enough to be presumptively 

prejudicial, no further inquiry is required." Kerns, 725 

P.2d at 1191. In this case, the delay of 134 days between 

the arrest and the trial is not sufficiently long to trigger 

further analysis, and we affirm on this issue. 

Issue 11. 

Smith claims that the ineffective representation 

provided by his legal counsel violated the right to counsel 

guarantees found in the United States Constitution, Sixth and 

Fourteenth Amendments, and the Montana Constitution, Art. 11, 

§ 24. Smith contends that the specific errors on the part of 

his counsel were: failure to move for an order for a 

psychiatric evaluation of Smith, failure to call favorable 

witnesses, and failure to allow Smith to testify. The State 

contends that Smith has failed to show that his counsel's 

performance was deficient. We agree with the State. 

To make a valid claim for ineffective assistance of 

counsel, the defendant must show that his counsel made errors 

so serious that counsel was not functioning as the counsel 

guaranteed by the Sixth Amendment, and that the deficient 

performance prejudiced the defense. State v. Matson (Mont. 

1987), 736 P.2d 971, 977, 44 St.Rep. 874, 882. Furthermore, 

"we will not allow unsupported allegations to brand counsel's 

performance as deficient." Matson, 736 P.2d at 977. The 

only evidence of ineffective assistance of counsel comes from 

Smith's own allegations. The record, on the other hand, 

reveals that Smith's counsel provided competent 

representation. Thus, we find Smith's allegations to be 

unfounded and we affirm on this issue. 
ISSUE 111. 

Smith contends that remarks made by the prosecutor in 

the State's closing argument constituted prosecutorial 

misconduct. The remarks were to the effect that men should 

not physically assault women, and that the period of physical 

restraint in an alleged kidnapping may be as short as 10 to 

15 minutes or less. The State contends that no objection was 

made to the remarks in the lower court, and thus no 

appealable issue exists. Smith urges this Court to apply the 

plain error rule. We find the plain error rule inapplicable, 

and agree with the State that this is not an appealable 

issue. See State v. Pease (Mont. 1986), 724 P.2d 153, 163, 

43 St.Rep. 1417, 1430. Thus we affirm on this issue. 

ISSUE IV. 

Smith contends that the sentencing procedures were 

deficient in several respects: 

A. Smith contends that the court erred in adding 10 

years to Smith's sentence for being a persistent felony 

offender because the trial court's decision is based on 

evidence improperly before the court. Specifically, Smith 

contends that no proper foundation was laid for: admission of 

the judgment documenting Smith's previous conviction; 

admission of testimony on Smith's fingerprints as recorded in 

the record from Smith's previous conviction; and admission of 

a tape recording of a telephone conversation between Smith 

and a Great Falls police officer. The recording documents a 

call made by Smith to police wherein Smith complains of 

police harassment. 

The State responds that Smith's claim on this issue 

fails because the rules of evidence do not apply to 

sentencing, and because the Court relied on competent 
evidence in sentencing Smith. We agree and affirm on this 

subissue. See State v. Lamere (1983), 202 Mont. 313, 321-22, 

658 P.2d 376, 380-81. 

B. Smith contends that the trial court erroneously 

relied on $ 46-18-501(2) (b), MCA, to find that Smith was a 

persistent felony offender because over five years had passed 

since the commission of the current offense and Smith's 

previous felony. The State responds that probation from 

Smith's previous suspended sentence constitutes commitment, 

and. that the probation ended less than five years before the 

commission of the current offense. 

Section 46-18-501(2)(b), MCA, defines a defendant as a 

persistent felony offender if the defendant was previouslv 

convicted of a felony and less than five years have passed 

since: 

(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) (b) , MCA, (emphasis added) . The judgment for the previous conviction, entered on 

December 20, 1979, sentenced Smith to 3 years in prison with 

execution of the sentence suspended provided that during the 

suspension Smith abide by the rules and regulations of the 

Montana State Board of Pardons and that he not possess, use, 

or sell dangerous drugs. In addition, the judgment provided 

that Smith would submit his person, his residence, and his 

vehicles to search and seizure at any time by probation 

officers, police officers, or other lawful authorities 

without a search warrant and without a prior requirement that 

probable cause be shown, and that Smith obey all United 

States, state, and municipal laws. 
None of these probationary conditions constitute 

"commitment" under § 46-18-501(2)(b), MCA. Commitment may be 

defined as: 

[Tlhe act of taking or sending to the prison, 

mental health facility, or the like. A person is 

committed when he is actually sentenced to 

confinement by a court as contrasted with a 

suspended sentence or probation. 

Black's Law Dictionary 248 (5th ed. 1979). The distinction 

between probation and confinement in defining commitment is 

supported by other usage of the word "commitment" in the 

code. For example, after revocation of a suspended sentence 

the defendant is ordered "committed". Section 46-18-203, 

MCA. And § 46-19-101, MCA, provides: 

Commitment of defendent. Upon rendition of 

judgment after pronouncement of sentence imposing 

punishment of imprisonment or death, the court 

shall commit the defendant to the custody of the 

sheriff, who shall deliver the defendant to the 

place of his confinement or execution. 

Section 46-19-101, MCA. Thus, 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, and our analysis need not proceed 

further because the plain meaning of the word controls its 

interpretation. State v. Hubbard (1982), 200 Mont. 106, 111, 

649 P.2d 1331, 1333. However, our resolution of this issue 

is also Suppori--?-l. 5v the cippdreilt nulrnr)n~ nf employing the 

term "other commitment" for initiating the period of time 

between convictions. That intent, as demonstrated by the 

other event which initiates the five year period in this 

subsection; release from prison, is to have the time start to 

run when the habitual offender is once again free, if he or 

she chooses, to victimize society. Thus, this subissue is 
reversed, and the enhanced sentence of ten years received 

under 5 46-18-501(2) (b) , MCA, is hereby declared to be void 

and we order it stricken. See Lewis v. State (1969), 153 

Mont. 460, 463, 457 P.2d 765, 766; 24R C.J.S Criminal Law 5 

1946 (1962). 

C. Smith contends that the trial court erred by failing 

to set out with particularity its findings in regard to 

dangerous of fender status. The State contends that the 

District Court's sentence contains adequate findings. A 

review of the sentence shows that the District Court found 

the following facts in designating Smith a dangerous 

of fender: 

1. The Defendant admits to using "lots of 

cocaine" on a daily basis prior to his arrest. 

2. The probation and parole officer found the 

Defendant to have intense anger for any kind of 

authority. 

3. A long history of misdemeanor arrests. 

4. The testimony of several witnesses that 

the Defendant has threatened to harm them or their 

families. 

5. The commission of a serious crime while 

still on parole. 

We hold that these findings satisfy the mandate of 

§ 46-18-404, MCA, and we affirm on this subissue. 

D. Smith also contends that the sentence in open court 

varied with the sentence document which incorporated the 

dangerous offender findings. Thus, according to Smith, the 

sentence violates Montana law. Smith fails to cite the law 

viol-ated, but the contention apparently addresses the open 

court sentencing requirements of S 46-18-102, MCA, which 

states: 
(1) The judgment shall be rendered in open 

court. 

(2) If the verdict or finding is not guilty, 

judgment shall be rendered immediately and the 

defendant shall be discharged from custody or from 

the obligation of his bail bond. 

(3) (a) If the verdict or finding is guilty, 

sentence shall be pronounced and judgment rendered 

within a reasonable time. 

(b) When the sentence is pronounced, the 

judge shall clearly state for the record his 

reasons for imposing the sentence. 

At the time of the sentence the District Court stated: 

Now, the Court has already found you to be a 

persistent felony offender. A jury of the citizens 

of this state have found you guilty of aggravated 

kidnapping. And the Court sat through the 

testimony, and the Court finds that this was a 

felony that was committed with a dangerous weapon, 

a gun. 

So it's the sentence of this Court on the 

offense of aggravated kidnapping that you be 

confined to the Montana State Penitentiary for a 

period of 25 years. That ten of those years are 

suspended. 

That on the persistent felony offender charge, 

that you be given an additional 10 years. That. 

that time is to be consecutive to the time for the 

aggravated kidnapping charge. 

For the commission of the offense with a 

dangerous weapon, the Court is going to add on an 

additional five years. And that is to run 

consecutive with the previous two sentences. 

For purposes of parole eligibility, the Court 

is declaring you a dangerous offender. 

We refuse to reverse on this subissue because the reasons for 

declaring Smith a dangerous offender are apparent in the 

transcript of the sentencing hearing, and thus any failure to 

articulate them in pronouncing the sentence constitutes 

harmless error. See State v. Hintz (Mont. 1984), 691 ~.2d 

814, 816, 41 St.Rep. 2172, 2176. Thus, except as to subissue 

B, this issue is affirmed. 
# 

ISSUE V. 

Smith's final argument is that the trial court erred by 

giving the following instruction: 

If you are satisfied that the crime charged in 

the information was committed by someone, then you 

may take into consideration any testimony showing, 

or tending to show, intimidation by the defendant, 

Tracy Douglas Smith. This testimony may be 

considered by the jury as circumstance tending to 

prove a consciousness of guilt, but is not 

sufficient of itself to prove guilt. The weight to 

be given such circumstance and significance if any, 

to be attached to it, are matters for the jury to 

determine. 

Smith contends that the above instruction is an improper 

adaptation of the instruction used when a defendant's flight 

is relevant to the defendant's consciousness of guilt. Smith 

argues that instructing the jury that it may consider 

intimidation as evidence of consciousness of guilt is highly 

prejudicial. Smith fails to explain why the instruction was 

highly prejudicial. 

The State points out that the instruction is contained 

in the Montana Criminal Jury Instructions, and that the 

comment to the instruction states that it is appropriate 

where evidence of intimidation exists. Evidence of 

intimidation on the part of Smith existed in this case. 

Thus, Smith's argument here lacks merit. We affirm on all 

issues except as set out in regard to issue 4. 

@6 Justice