No. 85-510 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsJERRY THOMAS KORELL, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for The County of Ravalli, 

The Honorable Robert Holter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John C. Doyle, Phoenix, Arizona 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Kimberly A. Kradolfer, Asst. Attorney General, Helena 

Robert B. Brown, County Attorney, Hamilton, Montana 

Margaret Tonon, Deputy County Attorney, Hamilton 

Submitted on Briefs: April 4, 1986 

Decided: June 17, 1986 

Filed: JUN 1 7 1986 

6iL.4 */L * 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Defendant Mr. Korell was convicted of attempted deliberate homicide and aggravated assault. He was placed at the 

Montana State Hospital, Warm Springs Campus as part of his 

sentence. In September 1985, his sentence was amended and he 

was transferred to the Montana State Prison. He appeals that 

order. We affirm. 

The issue is whether Mr. Korell was properly sentenced 

to Montana State Prison. 

The facts behind Mr. Korell's criminal conviction were 

set out in State v. Korell (Mont. 1984), 690 P.2d 992, 41 

St.Rep. 2141. In that appeal, this Court remanded the case 

pursuant to the District Court's duty to independently evaluate the defendant's mental condition prior to sentencing. 

His mental capacity had been a heated point of contention at 

trial, and conflicting psychiatric testimony had been presented. Following this Court's decision in that appeal, the 

District Court found that "at the time of the offense, the 

Defendant's mental disease or defect rendered him unable to 

appreciate the criminality of his conduct or to conform his 

conduct to the requirements of the law," and resentenced him 

as follows: 

1. For Charge I, Attempted Deliberate Homicide, a 

Felony, the Defendant is hereby committed to the 

custody of the Department of Institutions for a 

period of thirty-five (35) years; 

2. For Charge 11, Aggravated Assault, the Defendant is hereby committed to the custody of the 

Department of Institutions for a period of fifteen 

(15) years; 

IT IS FURTHER ORDERED that the above separate 

sentences as to Charges I and I1 are to run 

concurrently. 
IT IS FURTHER ORDERED that upon entry of this 

Judgment, the Defendant is to be placed for treatment in the Warm Springs State Hospital or in a 

Veterans Administration Hospital which has been 

approved by the Department of Institutions, for a 

period of two (2) years. 

IT IS FURTHER ORDERED that the Defendant shall not 

be released from any such hospital or Veterans 

Administration facility without specific order of 

this Court. 

IT IS FURTHER ORDERED that at the conclusion of the 

initial two-year period as above outlined, the 

Defendant, upon order of this Court, shall be 

placed in a suitable community-based residential 

treatment facility. 

IT IS FURTHER ORDERED that the Defendant is ordered 

to continue psychiatric treatment throughout the 

term of this sentence, and the Department of Institutions is ordered to provide such treatment or 

supervise treatment provided by other agencies 

approved by the Department of Institutions. 

Mr. Korell was admitted to Warm Springs in May 1985, under 

that order. He was placed in the forensic unit at the hospital. Initial physical and neurological examinations were 

performed, but the staff and doctors did not observe any 

signs or symptoms of psychosis. Mr. Korell sent several 

letters to the District Court, demanding treatment and requesting a pass to attend the Fourth of July parade in Butte. 

Based apparently on the letters, the District Court issued an 

order that Mr. Korell be transferred out of the forensic unit 

to a treatment unit "which will be able to facilitate the 

immediate commencement of therapeutic treatment for the 

Defendant's paranoid schizophrenia." Mr. Korell was transferred to a ward for longer term, chronically mentally ill 

patients, but he was not treated for mental illness because 

he was not found to be suffering from mental illness. 

In August, pursuant to the resentencing order, Mr. 

Korell's placement was reviewed by the District Court. Dr. 

Xanthopoulos, acting Clinical Director and psychiatrist, and 
Dr. Deming , a psychologist, both of Warm Springs, testified. 

The court found, in part, that: 

4. The doctors treating Defendant have determined 

Defendant does not suffer from paranoid 

schizophrenia, either active or in remission, and 

shows no symtomatology of either. Defendant is not 

being "treated" at Montana State Hospital because 

the staff can find no mental illness to treat. He 

is diagnosed as having mixed personality disorder 

with anti-social and passive/aggressive features, 

sometime referred to as maladaptive behavior, for 

which there is no treatment available. 

5. At the hearing on August 1, 1985, Defendant 

appeared to be calm and to act and dress 

appropriately. 

6. In February, 1985, Defendant stated he felt 

mentally good after approximately eleven months in 

the Montana State Prison and that he had taken 

advantage of available mental health counseling 

there. He had functioned reasonably well and had 

not obtained any serious negative write-ups. He 

earned good time and would obtain earlier release 

from prison than the State Hospital, but felt he 

would like any treatment the hospital could afford 

him. 

The court concluded that: 

1. In its previous Judgment upon resentencing, the 

Court found that the Defendant was suffering from a 

mental disease or defect at the time of the commission of the crime and committed Defendant to the 

Montana State Hospital or a Veterans hospital for a 

specified period of time. 

2. Defendant no longer suffers from a mental 

disease or defect, and there is serious doubt he 

ever did. 

3. That under Section 46-14-312 (3), M.C.A., the 

Court may now make an order not inconsistent with 

its original sentencing authority except that the 

length of sentence or confinement must be equal to 

that of the original sentence. 

The court amended its Judgment on Resentencing by ordering 

that Mr. Korell be returned to the Montana. State Prison for 

completion of his sentence, with credit for time served and 

for good time earned. 
Mr. Korell states that the order transferring him to 

Montana State Prison violates the constitutional prohibition 

of cruel and unusual punishment. The case he cites in support of this argument, Estelle v. Gamble (1976), 429 U.S. 97, 

97 S.Ct. 285, 50 L.Ed.2d 251, involved injuries to a federal 

prisoner while he was performing a prison work assignment. 

The prisoner was examined and treated for low back strain, 

but his complaints of back pain and inability to work outlasted the diagnosis. He filed a pro se complaint, alleging 

that he had not received adequate medical treatment, in 

violation of the prohibition against cruel and unusual punishment and in violation of 43 U.S. § 1983. The lower court 

dismissed his complaint for failure to state a claim. In 

affirming the holding that he had not alleged conduct constituting cruel and unusual punishment, the Supreme Court held 

that "deliberate indifference to serious medical needs of 

prisoners" constitutes an unnecessary and wanton infliction 

of pain prohibited by the Eighth Amendment. Estelle, 429 

U.S. at 104. The Court held however, that: 

. . . the question whether an X-ray--or additional 

diagnostic techniques or forms of treatment--is 

indicated is a classic example of a matter for 

medical judgment. A medical decision not to order 

an X-ray, or like measures, does not represent 

cruel and unusual punishment. 

Estelle, 429 U.S. at 107. 

The medical opinion of the doctors at Warm Springs State 

Hospital is that Mr. Korell suffers from no treatable mental 

illness, and Dr. Xanthopoulos concurred with Mr. Korell's 

once-stated wish to return to Montana State Prison. We 

conclude that the District Court's order that Mr. Korell be 

returned to Montana State Prison is based on medical opinions 

on matters for medical judgment. We hold that the District 
Court's order does not constitute cruel and unusual 

punishment. 

Our standard for review of the District Court's discretion is whether there is substantial evidence to support the 

court's findings and conclusions. State v. Hall (Mont. 

1983), 662 P.2d 1306, 1308, 40 St.Rep. 621, 624. The basis 

for Mr. Korell's position and for the District Court's February 1985 finding that he suffered from a mental disease or 

defect at the time of the crimes, is the February 1985 testimony and diagnosis of Dr. William Stratford that Mr. Korell 

suffered from paranoid schizophrenia, and would benefit from 

counseling and from drug therapy. However, the 

uncontroverted evidence at the August 1985 hearing was that 

Mr. Korell is not now suffering from a treatable mental 

illness. Both Drs. Xanthopoulos and Deming testified to 

this, and they were the only witnesses. Dr. Deming also 

testified that Mr. Korell did not exhibit characteristics of 

a paranoid schizophrenic in remission. We conclude that 

there is substantial evidence to support the District Court's 

finding that Mr. Korell is not now suffering from a mental 

disease or defect. 

The statute governing modification of a criminal sentence of a person suffering from a mental disease or defect 

at the time of the act is § 46-14-312(3), MCA: 

(3) A defendant whose sentence has been imposed 

under subsection (2) may petition the sentencing 

court for review of the sentence if the professional person certifies that the defendant has been 

cured of the mental disease or defect. The sentencing court may make any order not inconsistent 

with its original sentencing authority except that 

the length of confinement or supervision must be 

equal to that of the original sentence. The professional person shall review the defendant's 

status each year. 
The District Court's order dated September 1985 amends the 

finding as to whether Mr. Korell suffers from a mental disease or defect, but the amendment is not inconsistant with 

the court's original sentencing authority. It does not 

change the length of confinement or supervision. We conclude 

that the District Court acted within its discretion when it 

modified Mr. Korell's sentence to place him at Montana State 

Prison. 

We affirm. 

a st 'ce