No. 83-329 IN THE SUPREMECOURT OF THE STATE OF MOWTAXA 1984

STATE OF MONTAPJA, Plaintiff and Respondent,

DOIJALD F. LLOYD, Defendantand Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, TheHonorable William J. Speare,Judgepresiding.
COUNSEL OF RECORD:
ForAppellant: Allen Beck,Billings, Montana For Respondent: Mike Greely

### ,Attorney General,ISelena,Montana Harold F. Hanser,CountyAttorney, Billings, Montana

Submitted on Briefs: December 15, 1983 Decided: February 16,1984

Filed: ,-

## t.

## H ! ' 

### !38+

pClerkMr. JusticeFrank B. Morrison,Jr. delivered the Opinion of the Court. Defendant Donald Lloyd, appeals his conviction and sentence for felonious issuing of bad checks from the Thirteenth Judicial District Court, Yellowstone County. We affirm. On December 18, 1981, defendant purchased three cars from Billings Auto Auction, and signed three checks drawn on defendant's Spokane bank in payment. The checks were made out in the amounts of $3,200, $1,765 and $1,365. The defendant testified that he paid for the three cars with cash,but left four signed blank checks with the company in payment for other bills. In contrast, the president of Billings Auto Auction, Dinkel, testified that his secretary filled out three checks and defendant signed the checks in Dinkel's presence. All three checks were returned unpaid. Defendant testified that Dinkel knew at the time of signing that the checks were not to be sent todeposit until thenext week.On January 12, 1982, Dinkel notified defendant by certified mail that the checks were returned by the bank. Defendant signed the return receipt, but did not respond to the letter nor pay the checks. In February, defendant contactedhis attorney in Spokane for advice,andwas advised not topay the checks because of a defect in one of the cars. Defendant's attorney believed a set off existed under the Uniform CommercialCode. An information was filed March 23, 1982, charging defendantwith the felonyof issuing abad check. Jury trial was held on December 14, 1982, and defendant was found guilty. During the trial, counsel for the State objected to questions asked of defendant's Spokane attorney. Thequestions were designed to demonstrate that defendantdid not pay the checks because one of the cars he bought was defective, not because of a criminal mental state. The following transpired in the presence of the jury: "MR. HOEFER: Your Honor, again I would object to this line of questioning. The conclusions are based on what may amount to self serving interest of the Defendant, and consequently he is acting as a trier of facthere which is the jury's province. "MR. BECK: May I respond,yourHonor? "THE COURT: I don't understand your objection. You've got to

## -- can you state what it is again? "MR. HOEFER: Your Honor, the basic objection is that his contact with his attorney and the recommendations of his attorney are not pertinent to the case. They are not part of the res gestae, and consequently they are

# -- "THECOURT: Well, they are hearsay,but

# --

"THE COURT: There is a presumption created which the statute and

## -- but I don't know why you couldn'trebutt [sic]it,but

## -- "MR. BECK: I would submit, your Honor, that it would be rebutted by what he did, and what he did is relevant to that issue, and that's the sole purpose for what thisevidence is submitted. "THE COURT: Well, I'm going to overrule the objection to that extent; however, obviously it is self serving. There isno question about it. "MR. BECK: It's being offered, your Honor, for that limited purpose, that is, what did he do. "THE COURT: Well, anyhow, go ahead and ask your question. "MR. BECK: Thankyou,yourHonor." Defendant contends the statement of the court that the testimony is self-serving was prejudicial comment upon the evidence. The defendant also assigned error to the court asking the witness, "doyoupractice criminal law?" Five letters of recommendation were submitted to the trial court and the adultprobation officer in charge of thepresentence investigation. On February 2, 1983, defendant was sentenced to fiveyears inprison. Two issues are raised on appeal. First, whether the trial court's statements and questions were comments on the evidence amounting to reversible error. Second,whether the trial court abused its discretion in sentencing the defendant. Defendant argues that statements such as those of the trial court are proscribed by Rule 614(b)M.R.Evid. We need not consider the error as defendantdid not object at trial. State v. Bier (1979), 181Mont. 27, 34, 591 P.2d 1115, 1119; State v. Jensen (1969), 153 Mont. 233, 236, 455 P.2d 631, 632-33. Furthermore, we refuse to invoke the plain error doctrine. Any prejudice generated by the statements of the court would be too slight to be reversible error. Indeed, under these circumstances, any technical error would be rendered harmless by the court's instruction to disregard comments of the court. State v. Inich (1918), 55 Mont. 1, 173 P.230. It is clear that the statement of the court regarding the self-serving nature of testimonywas part of the court's ruling on the evidentiary objection. Itwas not directed at the jury. In ruling on such objections the trial judge may be unable to avoid expressing some opinion regarding the value or weight of evidence. State 

### v. Dixson (1927), 80 Mont. 181, 212, 260 P.138, 149. The question regarding the lawyer's area ofpractice is not prejudicial. In fact the question would have appropriatelybeen asked by counsel. Defendant next contends that the sentencing judge failed to evaluate all available sentencing information beforesentencing. Specifically, defendant claims the court gaveno weight to the unrebutted statements of several Spokane residents. We will not review a sentence on appeal for mere inequity or disparity. Such a review is to be conducted by the Sentence Review Division. State ex rel. Greely v. District Court (1979), 180 Mont. 317, 327, 390 P.2d 1104, 1110. Rather, this Court will only review sentences for their legality. The standard for such review iswhether the court abused its discretion in the sentencingprocess. State
v. White (Mont. 1982), 39 St.Rep. 1619, 650P.2d 765. Whateverweight the courtafforded the statements of the Spokane residents, it is clearhe felt these recommendations
were outweighed by the defendant's present conduct, found by the jury to be felonious, and his past record, including grand larcenyby check at the age of 34. The sentence to be imposed is properly vested in the sound discretion of the court. We find no abuse of this discretion. The judgmentof the DistrictCourt is affirmed.

We concur:

Chief Justicg

# - 

# &

Justices Mr. Justice DanielJ. Sheawill file a special concurring opinion later.