### INTHESUPREME COURTOFTHESTATEOFMONTANA NO.93-395
LARRYT. MOORE,

Petitioner,
-vJACKMCCORMICK,Wardenof the Montana State Prison,

Respondent.

Larry T. Moore, Petitioner herein, hasfiled his application requesting that this Court issue a writ of habeas corpus. Petitioner is presently incarcerated attheMontana State Prison as aresult of his conviction of the offense of deliberate homicide,
afelony, in violation of 545-5-102(1)(a), MCA,following ajury trial in Gallatin County onOctober 22, 1992to November23, 1992, andthe subsequent revocation ofhis bond. Petitioner claims that he is unlawfully held because he has been denied bail pending appeal bythe District Court andthat suchdenial is erroneous as amatter of law. Heasksthis Court to review the question of bail independently, pursuant to §46-22-103, MCA,which provides: Writ for purpose of bail. Whenaperson is imprisoned or detained in custody onanycriminal charge for want of bail, suchperson is entitled to awrit of habeas corpus for the purpose ofgiving bail uponaverring that fact in his petition, confined. without alleging that he is illegally
Theappropriate standard of review whenconsidering the denial of anapplication for bail pending appeal is whether the district 1court abused its discretion in denying the application. Absent

such abuse, this Court will not interfere. State ex rel. Bretz v. Sheriff of Lewis &Clark County (1975), 167 Mont. 363, 365, 539 P.2d 1191, 1192. Petitioner argues that since hewas released onbail prior to his conviction and since he was designated as a non-dangerous offender for purposes of eligibility for parole at sentencing, he is entitled to bail pending appeal by reason of 5546-g-107 and46- 20-204, MCA. Section 46-g-107, MCA, provides: Release or detention pending appeal -- revocation -- sentencing hearing. Aperson intending to appeal from a judgment imposing a fine only or from any judgment rendered by a justice's court or city court must be admitted to bail. The court shall order the detention of adefendant found guilty of an offense who is awaiting imposition or execution of sentence or a revocation hearing orwhohas filed anappeal 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. (Emphasis added). Under this statute, since the Petitioner was found guilty of the felony offense of deliberate homicide in district court, and since he has filed an appeal, the court is required to order the detention of the Petitioner "...unless LitI finds that, if released, the defendant is not likely to flee...". Here, the District Court madeprecisely the opposite finding. The Court ruled that: [T]here is simply too much risk involved [in granting bail].

...I feel that under the evidence and testimony presented, [at the bail hearing] the Court simply cannot take the chance of flight that is always present when a capital crime has been committed and there has been a conviction. Wecannot allow this Defendant out in the community regardless of what his friends and family say. 2We find no abuse of discretion in the Court's ruling. Upon

conviction, Petitioner was no longer cloaked with the presumption of innocence, having been found guilty beyond areasonable doubt of
a capital crime. There was evidence presented at the sentencing hearing to the effect that Petitioner hadnoongoing business, that his financial assets were negligible andthat hewasdivorced after he was originally admitted to bail. The District Court was entitled to weigh all of those factors is assessing Petitioner's propensity for flight. Accordingly, under the statute cited bythe Petitioner, he is not entitled to bail pending appeal. The Petitioner goes onto argue, however, that Section 46-20- 204(2), MCA, 11

...mandate[s] astay of sentence pending appeal for
adefendant who has been admitted to bail during the pendency of the case." Wedisagree. That section of the Montana Code of Criminal Procedure provides: stay of execution an6relief pending appeal.

...(2) If an appeal is taken andthe defendant is admitted to bail, a sentence of imprisonment shall be stayed by the trial court. (Emphasis added). Petitioner argues that the statute is ambiguous and, under the rule of lenity, should be interpreted in his favor because it is not clear what the legislature intended bythe words "defendant is admitted to bail." In other words, does that phrase refer to bail before or after sentencing? Weconclude that the statute is not ambiguous. The plain intendment of the language used is that if, in its discretion under § 46-g-107, MCA, and on making the required finding, the trial

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court admits the defendant to bail pending appeal, then the court must stay his sentence of imprisonment. Since, as set forth above, the District Court did not admit Petitioner to bail pending appeal, there is, obviously, no V'mandateVVunder f,46-20-204(2), MCA, that it stay his sentence of imprisonment. Petitioner's argument fails. Finally, Petitioner argues that since the District Court, at sentencing, designated him anondangerous offender for purposes of parole eligibility, he is entitled to bail pending appeal. Again,
weare not persuaded by Petitioner's argument. Section 46-18-404, MCAprovides in pertinent part: Designation as nondangerous 

### offender for purposes of parole eligibility. (1) Except asprovided in subsection (4), the sentencing court, shall designate anoffender a nondangerous offender for purposes of eligibility for parole under part 2of chapter 23 if:

... (b) the court has determined, based onany presentence report and the evidence presented at trial and the sentencing hearing, that the offender does not rewresent asubstantial danaer to other wersons or society. (Emphasis added). Implicit in the Petitioner's argument is the proposition that the criteria for admitting adefendant to bail pending appeal and for designating him anondangerous offender are the same. That is not the case, however. In determining whether to admit adefendant to bail pending appeal, the trial court is required to find that "...the defendant is not likely to flee or pose adanger to the safety of any person
or the community.1t Aspointed out above, the District Court, here, declined to make such finding, ruling that there was a risk of flight.Onthe other hand, §46-18-404(1)(b), MCA, requires the trial

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### court to determine that I'... the offender does not represent a

substantial danuer to other persons or society" after considering the presentence report andthe evidence attrial andthe sentencing hearing. This statute doesnot carry arequirement that the risk of flight be considered, but it does impose a more onerous requirement that the court find that the offender not represent a "substantial danger" asopposedto alldangerl* to society. Accordingly, while it maybeappropriate for the trial court to designate a defendant nondangerous for parole eligibility purposes under the requirements of §46-18-404(1)(b), MCA,it does not follow that, under the different criteria of 546-g-107, MCA, the court is also required to admit the defendant to bail pending appeal. For purposes of the instant Application for Writ of Habeas corpus, wehold that the District Court correctly interpreted and applied the appropriate statutes: that there was substantial evidence to support the Court's decision; that the Court did not abuse its discretion in denying the Petitioner's motion for bail pending appeal: andthat the Petitioner is not illegally imprisoned
or otherwise unlawfully restrained of his liberty. IT ISHEREBYORDERED,that Petitioner's Application for Writ of HabeasCorpus Dated this6