No. 92-57 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

STATE OF MONTANA, 

Plaintiff and Respondent, 

JOHN BUFFALO, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable William J. Speare, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

L. Sanford Selvey, 11, Yellowstone County Public 

Defender, Billings, Montana 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General, John 

P~u~so~, Ass't Attorney General, Helena, Montana 

Dennis J. Paxinos, Yellowstone County Attorney, 

Billings, Montana 

Filed: 

Submitted on Briefs: September 16, 1993 

Decided: October 14, 1993 
Justice Karla M. Gray delivered the Opinion of the Court. 

John Buffalo appeals from an order of the Thirteenth Judicial 

District Court, Yellowstone County, designating him a dangerous 

offender. We affirm. 

The sole issue on appeal is whether the District Court 

adequately articulated its reasons for designating Buffalo a 

dangerous offender under 1 46-18-404, MCA. 

On October 31, 1991, an information was filed against John 

Buffalo (Buffalo) alleging one count of attempted sexual 

intercourse without consent and one count of attempted kidnapping, 

According to the affidavit filed in support of the information and 

the evidence introduced at trial, at approximately 9: 35 a.m, on 

October 27, 1991, Buffalo attacked G.M. from behind and hit her in 

the face with his closed fist. He then carried her between a row 

of parked cars, where he threw her to the ground and attempted to 

tear her clothes off. A Yellowstone County deputy sheriff observed 

the incident by chance and interceded; Buffalo fled the scene. 

Buffalo then encountered C.T., who was leaving her car to 

attend a church service. Buffalo ordered C.T. into the car and 

then shoved her inside. C.T. began to scream and kick at Buffalo. 

Deputies in the area saw the altercation, responded, and 

apprehended Buffalo after a short chase. Neither victim knew 

Buffalo prior to the attacks. 

Following a two-day trial, a jury found Buffalo guilty of 

attempted sexual intercourse without consent and attempted 

kidnapping. A presentence report and psychological examination 

2 
were obtained for sentencing purposes. On September 3, 1992, the 

~istrict Court sentenced Buffalo to twenty years imprisonment for 

attempted sexual intercourse without consent and ten years 

imprisonment for attempted kidnapping. The court ordered the 

sentences to run concurrently and designated Buffalo a dangerous 

offender. Buffalo appeals only the dangerous offender designation 

contained in his sentence. 

Did the District Court adequately articulate its reasons for 

designating Buffalo a dangerous offender under S 46-18-404, MCA? 

Under Montana's sentencing provisions, the designation of an 

offender as either nondangerous or dangerous is an important factor 

in determining parole eligibility. See 5 46-23-201(2), MCA; State 

v. Belmarez (1991), 248 Mont. 378, 379, 812 P.2d 341, 342. As a 

general rule, a district court must designate an offender 

nondangerous if he has no other felony convictions in the preceding 

five years and it determines that the offender does not represent 

a substantial danger to other persons or society. Section 46-18- 

404(1) and (2), MCA. Under § 46-18-404(3), MCA, "[;If the court 

determines that an offender is a dangerous offender, it shall make 

that determination a part of the sentence imposed and shall state 

the determination in the judgment. . . . " Moreover, we require 

sentencing courts to articulate the reasons underlying decisions to 

designate an offender as "dangerous;" more than a mere recital of 

the statutory language is required. State v. Morrison (Mont. 

1993), 848 P.2d 514, 517, 50 St-Rep. 270, 272. Belmarez, 812 P.2d 

at 342. 

In this case, the District Court articulated the following 

3 
reasons for its sentence and dangerous offender designation: 

1. The Court has considered the contents of the 

presentence report, as well as the recommendations of 

counsel. 

2. The Court has considered that a jury, after hearing 

the evidence, found the defendant guilty on both Counts, 

each of these serious crimes. Although the jury had 

trouble with Count 11, the Attempted Kidnapping. [sic] 

3. The Court considered the very nature of these crimes 

abhorrent in that the defendant had no prior acquaintance 

with the victims, the time of the offenses being early 

Sunday morning and the place being relatively deserted at 

that hour. The Court knows that both of these totally 

innocent victims were terrified and justly so. 

4. The Court considered defendant's age and prior 

criminal record which includes a Felony conviction in 

1987 and a Misdemeanor sexual assault. 

5. The Court has considered the psychological evaluation 

and which it agrees [sic] that it and the other records 

show a need for alcohol treatment. The Court is 

concerned about the defendant's apparent proclivity for 

violent sexual activity. 

6. While the Court does not believe that the prior 

felony conviction in June of 1987 necessarily mandates a 

designation of dangerous, certainly the entire criminal 

nature and the vicious and serious nature of these 

offenses as committed justify such designation. 

Relying on Morrison and Belmarez, Buffalo argues that the 

reasons given by the District Court are mere variations of the 

statutory language of 5 46-18-404, MCA, and, therefore, the court 

did not sufficiently set forth its reasons for designating him a 

dangerous offender. Belmarez and Morrison lend no support to 

Buffalo's argument 

In Morrison, the district court stated only that it had 

considered the contents of the presentence report and the nature 

and seriousness of the offense. Because the record supported a 
dangerous offender designation, we remanded the case for entry of 

findings to support that conclusion. Morrison, 848 P.2d at 517-18. 

In Belmarez, although the district court stated that it had 

considered the presentence report and the plea bargain and 

concluded that the defendant was a danger to society, it also 

stated that the defendant was sincerely remorseful and that he had 

no prior criminal record. We determined that the court's findings 

did not support its determination that the defendant was a danger 

to society; indeed, we stated that the findings just as easily 

could have supported a nondangerous designation. Belmarez, 812 

P.2d at 343. 

Here, the District Court did not merely recite the statutory 

language, but made numerous specific findings applying the 

statutory factors to the facts of this case. The court detailed 

the serious and vicious nature of the crimes and the effect on the 

innocent victims, set forth Buffalo's prior criminal history and 

explained both the need for alcohol treatment and Buffalo's 

apparent proclivity for violent sexual activity. The District 

Court's findings are clearly distinguishable from those in Morrison 

and Belmarez. 

In light of the circumstances of this case, we conclude that 

the District Court acted within its discretion and adequately 

articulated its reasons for designating Buffalo a dangerous 

offender for purposes of parole eligibility. 

Af f irmed . 

Pursuant to Section I Paragraph 3 (c), Montana Supreme Court 
1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of the Supreme Court and by a report of its result 

to Montana Law Week, State Reporter and West Publishing Company. 

We concur: 
October 14, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

L. Sanford Selvey, I1 

Yellowstone County Public Defender 

2720 3rd Avenue North, Suite 200 

Billings, MT 59101 

Hon. JOSEPH P. MAZUREK, Attorney General 

John Paulson, Assistant 

215 N. Sanders, Justice Building 

Helena, MT 59620 

Dennis James Paxinos 

Yellowstone County Attorney 

P. 0. Box 35025 

Billings, MT 5910'7 

ED SMITH 

,