NO. 87-248
INTHE SUPREME COURT OF THE STATE OFMONTANA
1988

STATE OFMONTANA,
Plaintiff and Respondent,-vsTRACY DOUGLAS SMITH,
Defendant and Appellant.

APPEAL FROM: DistrictCourtof the EighthJudicialDistrict, Inand forthe Countyof Cascade, The HonorableThomasMcKittrick, Judge presiding.
COUNSEL OFRECORD:
For Appellant:
LeonardJ. Haxby, Butte, Montana
For Respondent:
Hon. Mike Greely, AttorneyGeneral, Helena, Montana Barbara Claassen, Asst. Atty. General, Helena PatrickL. Paul, CountyAttorney, GreatFalls, Montana Stephen Hagerman, DeputyCountyAtty., GreatFalls

Submittedon Briefs: March 24, 1988
Decided: May 26, 1988
Filed: 

### MAY

### 26

### 1988

ClerkMr. Justice R. C. McDonough delivered the Opinion of the Court.

This isan 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 apersistent felony offender,and 5years for the commission of a crime with a weapon. Smith appeals the convictionand 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 assistanceof counselresult in the denial of Smith'sconstitutional 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 outof 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 Tulickaswas 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 tohave at a residence in GreatFalls. 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 thathis right to a speedy trialwas 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, isnot 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. Statev. 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,andwe 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 theUnited States Constitution,Sixth and Fourteenth Amendments, and theMontana Constitution,Art. 11, § 24. Smith contends that the specific errors on thepart 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 performancewas deficient. We agreewith the State. To make a valid claim for ineffective assistance of counsel, thedefendant must show thathis 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 allegationstobrand counsel's performance as deficient." Matson, 736 P.2d at 977. The only evidence of ineffectiveassistance of counselcomes 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 andwe 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 thatmen should notphysically assaultwomen, and that theperiod ofphysical restraint in an alleged kidnappingmay be as short as 10 to 15minutes or less. The State contends thatno objectionwas 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. Thuswe 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 thatnoproper foundationwas laid for: admission of the judgment documenting Smith's previous conviction; admission of testimony on Smith's fingerprintsas recorded in the record from Smith'sprevious conviction;and admission of

a tape recording of a telephone conversation between Smith and a Great Fallspolice officer. The recording documents a call made by Smith to police wherein Smith complains of policeharassment. 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 competentevidence in sentencing Smith. We agree and affirm on this subissue. See Statev. Lamere (1983), 202 Mont. 313, 321-22, 658P.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 offenderbecause over fiveyearshad 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 theprobation ended less than fiveyears before the commissionof the currentoffense. Section 46-18-501(2)(b),MCA, defines adefendant 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 onparole or otherwise from prison or other commitment imposed as a result of theprevious felony conviction.

Section 46-18-501(2)(b)

## ,MCA, (emphasisadded)

# . 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 judgmentprovided 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 searchwarrant and without a prior requirementthat 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. Commitmentmay 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 sentenceorprobation.
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 ofhis confinementor execution. Section 46-19-101,MCA. Thus, theplain meaning of theword "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. Statev. Hubbard (1982),200Mont. 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 fromprison, is tohave the time start to run when the habitual offender is once again free, if he or she chooses, to victimize society. Thus, this subissue isreversed, 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 offender 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 offender:


### 1. The Defendant admits to using "lots of cocaine" on a daily basis prior to his arrest. 2. Theprobation 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 stillonparole.
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 obligationofhisbail 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 sentencethe 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 thatwas committed with a dangerousweapon, 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. Thaton thepersistent felony offender charge, that you be given an additional 10 years. That. that time is to be consecutive to the time for the aggravatedkidnapping 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 theprevious two sentences. For purposes of parole eligibility, the Court isdeclaringyou adangerousoffender.
We refuse to reverseon this subissuebecause the reasons for declaring Smith a dangerous offender are apparent in the transcriptof 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,exceptas to subissue B, this issue is affirmed.# ISSUE

### V. Smith's final argument is that the trial court erred 

### by giving the following instruction:

Ifyou are satisfied that the crime charged in the informationwas committed by someone, thenyou may take into consideration any testimony showing, or tending to show, intimidationby 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 sufficientof itself to prove guilt. Theweight to be given such circumstanceand significance if any, to be attached to it, are matters for the jury to determine. Smith contends that the above instructionis an improper adaptation of the instructionused when a defendant's flight is relevantto the defendant's consciousness of guilt. Smith argues that instructing the jury that it may consider intimidation as evidence of consciousnessof guilt ishighly prejudicial. Smith fails to explain why the instructionwas highlyprejudicial. 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 exceptas set out inregard to issue 

### 4. 

# @6 Justice