97-241

 IN THE SUPREME COURT OF THE STATE OF MONTANA

 No. 97-241

 ______________

GREGORY LLOYD INGRAHAM, )

 ) 

 Petitioner, )

 ) OPINION

 v. ) and

 ) ORDER

STATE OF MONTANA, )

 )

 Respondent. )

 ______________

 Gregory Lloyd Ingraham (Ingraham) is incarcerated at the Montana State Prison

as a result of his conviction on July 19, 1996, of the offenses of negligent 

homicide, a

felony, in violation of 45-5-104(1), MCA; criminal endangerment, a felony, in 

violation

of 45-5-207(1), MCA; and criminal trespass to property, a misdemeanor, in violation

of 45-6-203(1), MCA. He had consumed alcohol prior to the acts giving rise to the

convictions. Ingraham presently is before this Court on his application for writ of 

habeas

corpus, requesting review of the denial by the Twentieth Judicial District Court, 

Lake

County, of his motion to continue bond pending appeal. 

 The sole issue before us is whether the District Court abused its discretion in

denying Ingraham's motion to continue bond pending appeal.

 The procedural steps via which Ingraham's request is before this Court have 

been

detailed in a number of previous orders by the Court and by Justice Terry N. 

Trieweiler. 

Those orders, entered in this cause number and in cause numbers 97-076 and 97-271,

recount in detail Ingraham's efforts--vis-a-vis habeas corpus and appeal--to obtain 

review

of the District Court's denial of his motion to continue bond pending appeal; we 

need not

recount those details here. Suffice it to say that, after months of procedural

entanglements, the matter is now before this Court for review pursuant to Ingraham's

application for writ of habeas corpus.

 Ingraham had been admitted to bail pending trial after being charged with the 

three

offenses referenced above on October 17, 1995. The District Court continued his 

bond 

pending sentencing after the July 19, 1996, jury verdicts finding him guilty of the 

two

felony and one misdemeanor offenses. The District Court sentenced Ingraham in open

court on November 18, 1996, and remanded him to the custody of the Lake County

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Sheriff for transport to the Montana State Prison. The court subsequently entered a

written judgment and commitment. 

 Immediately after sentencing, Ingraham moved the District Court for 

continuation

of bond pending appeal. The District Court heard oral argument on the motion on

December 3, 1996, and Ingraham and the State of Montana (State) filed proposed 

findings

of fact and conclusions of law. Thereafter, the District Court entered its findings 

of fact,

conclusions of law and order denying the motion to continue bond pending appeal based

on its determination that it was unable to find that, if released, Ingraham was not 

likely

to pose a danger to the safety of any person or the community.

 The availability of bail pending both trial and appeal is governed by statute in

Montana. With regard to bail pending appeal, 46-9-107, MCA, provides:

 The court shall order the detention of a defendant found guilty of an offense

 who is awaiting imposition or execution of sentence or a revocation hearing

 or who has filed an appeal unless the court finds that, if released, the

 defendant is not likely to flee or pose a danger to the safety of any person

 or the community.

In other words, a convicted criminal defendant is not to be admitted to bail unless 

the

trial court finds that he or she is not likely to either flee or pose a danger. We 

review

a district court's decision denying an application for bail pending appeal for abuse 

of

discretion. Moore v. McCormick (1993), 260 Mont. 305, 306, 858 P.2d 1254, 1255.

 In this case, the District Court entered findings of fact and, on the basis of 

those

findings, determined that it was unable to find that, if released, Ingraham was not 

likely

to pose a danger to the safety of any person or the community. Ingraham contends 

that

the court's ultimate determination is an abuse of discretion because it is not 

supported by

the evidence and findings as a whole. We observe at the outset that none of the 

District

Court's purely factual findings are challenged as unsupported by the record. 

Ingraham

challenges only the weight given to, or the inferences drawn from, certain of those

findings. Specifically, he contends that the District Court's focus on matters 

predating

alcohol treatment Ingraham received at the Menninger Clinic (Menninger) after his

convictions and its failure to give more weight to a report by Dr. Richard Irons (Dr.

Irons) from Menninger constituted abuses of discretion.

 Before addressing the specific contentions advanced by Ingraham, it is 

appropriate

to review undisputed findings of fact relating to the District Court's denial of his 

motion

to continue bail pending appeal. Ingraham was involved in a fatal vehicle accident, 

prior

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to which he had been drinking, in 1993; no charges were brought against him as a 

result

of the accident. In July of 1995, he was involved in an alcohol-related domestic 

violence

incident which resulted in a criminal charge to which he subsequently pled guilty. 

As a

result of the charge, Ingraham spent a number of days in the Talbott Marsh Treatment

Center (Talbott Marsh) in Georgia in early August. On August 9, 1995, Talbott Marsh

recommended that he abstain from alcohol and seek treatment from Menninger. 

 In October of 1995, Ingraham was charged in the instant case with the offenses 

of

negligent homicide, criminal endangerment and criminal trespass to property arising 

out

of a fatal vehicle accident prior to which he had been drinking. He had not 

followed the

Marsh Talbott recommendations that he abstain from alcohol and seek treatment at

Menninger prior to the accident. He was released on bond on condition that he not 

drink

alcohol.

 During the several weeks following his release on bond pending trial, Ingraham

consumed alcohol daily while staying with friends. In February of 1996, he 

apparently

drank prior to picking up a date and drove in a manner that frightened her. He 

continued

to drink wine throughout the evening and the date felt he had had a sufficient 

quantity of

alcohol to necessitate her operating his vehicle when they left the restaurant where 

they

had dinner. In April of 1996, two Shopko pharmacy employees noticed the odor of

alcohol on Ingraham's breath when he picked up prescriptions there.

 Ingraham's trial in the instant case occurred in July of 1996. He was found 

guilty

on July 19, 1996, and bond was continued, on the same conditions, pending 

sentencing. 

 In August, the State received police reports from the Missoula Police 

Department

documenting incidents of Ingraham drinking while subject to bond requirements. 

During

the initial interview for preparation of the presentence investigation report 

required by

statute, Ingraham told the probation officer that, since the accident, his only 

consumption

of alcohol was one beer the following day. During a later interview, he was 

confronted

with the statements of his dinner date and admitted that he had consumed wine during 

that

date in February of 1996.

 Ingraham was treated at Menninger for alcohol dependency and bipolar affective

disorder, type II, from September 9 through November 1, 1996. In a report to

Ingraham's counsel for purposes of sentencing, Menninger's Dr. Irons reported that,

during Ingraham's time there, he came to develop what the treatment team believed was

genuine remorse for his lack of responsibility in operating a vehicle while under the

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influence of alcohol. Based on its experience with him, the team did not see him as 

a

danger to the public "if he is not under the influence of alcohol while driving a 

motor

vehicle, and compliant with psychotropic medications." Dr. Irons also believed 

Ingraham

would comply with measures that could be put in place to assure abstinence from 

alcohol

and other mood-altering substances. 

 On the face of it, the abovementioned facts are sufficient to support the 

District

Court's determination that it could not find that, if released on bond, Ingraham was 

not

likely to pose a danger to any person or to the community. The facts demonstrate 

serious

incidents involving alcohol consumption by Ingraham prior to this case; a failure to

abstain from alcohol and seek treatment even after being advised to do so by Talbott

Marsh; an alcohol-related fatal vehicle accident which resulted in the charges on 

which

this case is based; a number of violations of the bond condition that he not consume

alcohol; and his initial falsehood to the probation officer writing the presentence 

report

that he had not consumed any alcohol since the day after the accident.

 Against this backdrop, Ingraham contends that his treatment at Menninger, after

his conviction, and Dr. Irons' report are more reliable indicators of his present 

condition

and risk if released on bond pending appeal than his pretreatment behavior. Stated

differently, he asserts that the District Court was compelled to give more weight to 

the

facts that he sought treatment after conviction and that Dr. Irons believed he was 

not a

risk than to the other evidence before it. We disagree.

 "Discretion" connotes that part of the judicial function which decides questions

according to the particular circumstances of the case, uncontrolled by fixed rules 

of law. 

State ex rel. Leach v. Visser (1988), 234 Mont. 438, 447, 767 P.2d 858, 863 (citation

omitted). An abuse of discretion occurs when a district court acts arbitrarily 

without

conscientious judgment or exceeds the bounds of reason. Investigative Records of 

City

of Columbus Pol. Dept. (1995), 272 Mont. 486, 488, 901 P.2d 565, 567 (citation

omitted). In addressing discretionary matters such as a motion for bond pending 

appeal,

a court's application of conscientious judgment necessarily involves weighing 

evidence

and making reasonable inferences therefrom in order to assess a likelihood of 

danger. 

Thus, the question for this Court is not whether we would have reached the same 

decision

but, rather, whether the District Court abused its discretion in reaching the 

decision to

deny Ingraham's motion for bond pending appeal. 

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 On this record, it is clear that the District Court could have chosen to give

additional weight to the Menninger treatment and Dr. Irons' report as the most recent

evidence regarding Ingraham and his potential risk of danger to others if released 

pending

appeal. The District Court was not required to do so, however, and this is 

especially true

given the equivocal nature of Dr. Irons' report. As noted above, the treatment team 

did

not see Ingraham as a danger to the public "if he is not under the influence of 

alcohol

while driving a motor vehicle. . . ." (Emphasis added.) Moreover, Dr. Irons 

"believed"

that Ingraham would be compliant with any measures put in place to assure Ingraham's

abstinence from alcohol. 

 While Ingraham may well have significant rehabilitation potential and might--if 

and

when given the chance--comply with requirements that he abstain from alcohol, neither

Dr. Irons' report nor any evidentiary showing can guarantee such results in 

advance. He

clearly did not abstain during the time such abstention was a court-ordered 

condition of

bail. Nor is the treatment team's view that Ingraham is not a risk to the public 

"if" he

does not drive a vehicle while under the influence of alcohol necessarily comforting 

given

Ingraham's alcohol-related history. Given the record in this case, we conclude that 

the

District Court did not abuse its discretion in refusing to give more weight to the

Menninger treatment and report than to Ingraham's pre-Menninger conduct. To conclude

otherwise would force trial courts to grant bond pending appeal in every case where a

convicted defendant obtained a generally supportive posttrial report based on 

subjective

beliefs and predictions of future behavior. Neither 46-9-107, MCA, nor our abuse 

of

discretion standard contemplates such a requirement.

 Ingraham also contends that the District Court erroneously abstracted a risk of

present danger from the alcohol-related domestic violence incident which occurred in 

July

of 1995. It is true that the court mentioned that incident several times in its 

findings of

fact. Some of those references were in a purely historical context and in relation 

to

Ingraham's resulting trip to Marsh Talbott and the Marsh Talbott recommendations that

Ingraham abstain from alcohol and seek treatment at Menninger, which recommendations

were not followed in the two months after they were made and before the fatal 

alcoholrelated accident underlying the present proceedings. In assessing the risk of 

danger to

persons and the community if Ingraham were released on bond pending appeal, however,

the court clearly gave more weight to Ingraham's several violations of the bond 

condition

that he abstain from alcohol and to his posttrial falsehood to the probation officer 

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about

drinking while released on bond than it gave to the domestic violence incident. 

 Ingraham also argues briefly that the bond condition that he abstain from 

alcohol

entirely during his release on bond pending trial and sentencing was 

unconstitutional and

that violation of such an unconstitutional bond condition cannot constitute a proper 

basis

for denying bond on appeal. It does not appear that he raised this--or any other--

objection to the abstention condition at the time it was imposed, or at any time

thereafter, in the District Court. Indeed, his proposed findings and conclusions 

regarding

his motion for bond pending appeal propose that the same abstention condition be

continued. Ingraham having waived this objection by failing to raise it in the 

District

Court (see 46-20-104(2), MCA), we decline to address this argument further.

 Finally, Ingraham contends that, because at least one issue in his pending 

appeal

creates a strong likelihood that this Court will reverse his convictions, equity 

and fairness

require that he be released on bond pending appeal. We disagree. As discussed 

above,

 46-9-107, MCA, governs the availability of bond pending appeal. Nothing in that

statute refers to the likelihood of success on appeal. Nor does Ingraham cite to any

authority under which the likelihood of success on appeal is an appropriate 

consideration

in either an initial determination of a motion for bond pending appeal or a review 

by this

Court of a district court's initial determination. Moreover, adopting Ingraham's 

approach

would require this Court to determine in advance of the arrival of the appeal whether

there is a likelihood of success in the appeal and, if so, the magnitude of that 

likelihood. 

Not only is such a determination a practical impossibility, it would necessitate an 

advisory

opinion by this Court. We do not issue advisory opinions. State ex rel. Fletcher v.

District Court (1993), 260 Mont. 410, 419, 859 P.2d 992, 997.

 We conclude that the District Court did not abuse its discretion in denying

Ingraham's motion for continuation of bond pending appeal and, accordingly,

 IT IS ORDERED that Ingraham's application for writ of habeas corpus is

DENIED.

 DATED this 24th day of July, 1997.

 /S/ KARLA M. GRAY

 /S/ W. WILLIAM LEAPHART

 /S/ WILLIAM E. HUNT, SR.

 /S/ JIM REGNIER 

 

Chief Justice J. A. Turnage has recused himself from this matter.

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Justice James C. Nelson specially concurs.

 I concur fully in our opinion and order. I write separately only to address the

"procedural entanglements" which preceded this decision. As stated, our orders in 

cause

numbers 97-076 and 97-271 detail the tangled and lengthy history of Ingraham's 

attempts

to obtain our review of the trial court's denial of his motion to continue bond 

pending

appeal. These procedural contortions arose for a very simple reason. This Court 

has no

statutory authority to review a district court's denial of bail pending appeal 

either by

direct appeal or via a petition for writ of habeas corpus. While our decisions in 

Bretz

v. Sheriff of Lewis and Clark County (1975), 167 Mont. 363, 539 P.2d 1191, and Moore

v. McCormick (1993), 260 Mont. 305, 858 P.2d 1254, appear to provide authority for

what we are doing here, in truth, that authority or, rather, our lack of authority, 

was

never at issue in either of those two cases. In the case at bar we have disposed of

Ingraham's habeas corpus petition by reviewing the trial court record and the court's

decision for abuse of discretion simply because both the Defendant and the State have

agreed that we should proceed in that fashion--not because the law authorizes us to 

do so.

 Under 3-2-212, MCA, and under the statutory scheme set out at Title 46,

Chapter 22 of the Montana Code this Court and individual members of this Court can--

and, in my view, must--deal with habeas corpus petitions as original proceedings when

those are filed here. In situations such as the one at issue, our decision to grant 

or deny

habeas relief must, of necessity, be based on a factual record. In the context of an

original proceeding we have only two ways to accomplish that. Either we develop our

own record by holding an evidentiary hearing ourselves or we must assign that task to

another district court. The latter approach will invariably be necessary, as this 

Court, as

an appellate court, is not structurally set up to conduct an evidentiary hearing. 

Unfortunately, as this case ably demonstrates, having to deal with habeas petitions 

in this

fashion is highly inefficient, time consuming, wasteful of judicial resources and 

ill serves

the accused, the courts or the criminal justice system. 

 As both Ingraham and the State appear to concede, appellate review of the trial

court record and decision to deny bail pending appeal for abuse of discretion is the

obvious best approach in cases such as this. The habeas corpus statutes should be

amended by the next legislature to provide authority for this procedure to the end 

that the

fiasco which has characterized this case will not again be repeated. 

 /S/ JAMES C. NELSON

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