No. 91-063 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

STATE OF MONTANA, Plaintiff and Appellant, 

## ~jc i 

## .B"1991-vsDANIEL LIONEL WILLSON, Defendant and Appellant.

APPEAL FROM: District Court of theThirteenthJudicial District, In and for the County of Yellowstone, The Honorable G. Todd Baugh, Judge presiding.

COUNSEL OF RECORD: For Appellant: Richard J. Carstensen, Attorney at Law, Billings, Montana. For Respondent: Marc Racicot, Attorney General, Helena, Montana; Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana; Dennis Paxinos, County Attorney, Billings, Montana; Charles Bradley, Deputy County Attorney, Billings, Montana.

Filed: Submitted on briefs: August 29, 1991 Decided: October 8, 1991Chief Justice J. A. Turnage delivered the Opinion of the Court. Daniel Lionel Willson (Willson) appeals from his sentences imposed by the Thirteenth Judicial District, Yellowstone County, for his convictions of criminal endangerment, criminal possession of dangerous drugs,criminal possession of drug paraphernalia, and escape. Willson further appeals his designation as a dangerous offender. We remand for resentencing on the criminal possession of dangerous drugs conviction and affirm on all other issues. Willson presents the following issues: 1. Whether the ten-year sentence for criminal possession of dangerous drugs was erroneous. 2. Whether the District Court's statement concerning excessive previous convictions requires resentencing. 3. Whether the sentence designation as a dangerous offender

was erroneous. 4. Whether on remand for resentencing Willson should be entitled to a different sentencing judge. On February 7, 1990, Willson was charged by information with

one count of criminal endangerment, one count of criminal possession of dangerous drugs, and one count of criminal possession of drug paraphernalia. These charges stemmed from a January 8, 1990 incident where Willson, in a motor vehicle, drove through downtown Billings, Montana, at speeds of up to 100miles an hour. In this high-speed drive,Willson collidedwith two separateoccupiedmotor

### vehicles, destroyinq 

### these vehicles 

### and causing 

### injuries. Following this incident, police obtained Will.sontsconsent to searchhis clothing. In this search,police found a clearplastic syringe and a white powder substance later identified as cocaine. At his arraignment, Willson pled not 

### guilty to all three charges. The court ordered that he be remanded to the custody of the Yellowstone County Sheriff. OnMarch 30, 1990, Willson escaped from theYellowstoneCounty jail with 

### six other inmates. Willson later turned himself in to authorities, The State amended 

### its information againstWillson to include one count of escape. Willson pled not guilty to the 

### now four 

### charges against himOn October 17, 1990, Willson changed his pleas of not guilty 

### to guilty under a 

### plea agreement. The 

### District 

### Court ordered a presentence investigation report. The presentence investigation report recommended a "lengthy sentence" for Willson. On December 3, 1990, the District Court conducted a sentencinghearing. At the sentencing hearing, Willson testified that he has suffered from a drug problem forseveralyears andwasunder the influenceof crank and cocaine at the 

### time of the incident. Followinga reviewof the plea agreement, the presentence investigation report, and the testimony presented at the sentencing hearing, the District Court sentenced Willson to the following: ten years imprisonment with three years suspended for criminal endangerment, and ten years

### imprisonment

### with three

### years suspended 

### for criminalpossession 

### of dangerous drugs, these two sentences to run consecutively; six months imprisonment for possession of drug paraphernalia, this sentence to run concurrently to theabove sentences;

### and 

### fiveyears imprisonmentwith 

### two years suspended for escape,this sentence to


### run concurrently with the above sentences. The District Court also designatedWillson a dangerous offender forparole purposes. From these sentences,Willson appeals.

1. Whether the ten-year sentence for criminal possession of dangerous drugs 

### was erroneous. Willson admits that he is guilty of criminal possession of dangerous drugs, a violation of § 45-9-102, MCA (1989). Willson, however,arguesthat theDistrict Court erredwhen it sentenced

### him to ten years imprisonment with three years suspended for this offense. 

### We 

### agree. The sentencing statute for cocaine possession, 

### 5 45-9-102(3), MCA (1989),provides in pertinent part: A person convicted of criminal possession of an opiate, as defined in 50-32-101(19), shall be imprisoned in 

### the state prison 

### for a term of not less that 2years ormore than 5 years,
The District Court's sentence of ten years imprisonmentwith three years suspended exceeded themaximum sentence allowed under 5 45-9-102(3), MCA (1989). We therefore remand this case to the District Court for resentencing of this offense.

2. Whether the District Court's statement concerning excessive previous convictions requires resentencing. Willson argues that during the sentencing hearing, the District Courtmiscounted Willson'spast felony offenses contained in the presentence investigationreport and relied on an incorrect number of five past felony offenses when it sentenced Willson. Willson argues that this Court should remand this case to the District Court for resentencing based upon Willson's criminal record of two past felony convictions prior to this case. Willson further argues that the District Court failed to clearly state its reasons for sentencinghim. We disagree with Willson's arguments. The record indicates that although the District Court misinterpreted Willson's criminal record as contained in the presentence investigationreport,itnonetheless properly concluded that Willson has five current felony convictions. The record further indicates that the District Court did not rely solely on these five current felony convictions in sentencingWillson. This Court notes that the presentence investigation report indicates that Willson currently has a total of five felony convictions: 1. criminal endangerment onMay 1, 1990; 2. criminal possession of dangerous drugs onMay 1, 1990; 3. escape on May 1,1990; 4. criminalmischief on 

### July 27, 1983;

### and 5. criminal sale of dangerous drugs on June 28, 1983. Willson's May 25, 1983 conviction for criminal mischief is not considered 

### as an offense

as it was a deferred sentence successfully completed. Additionally, Willson's December 11, 1986 felony conviction for criminal mischief isnot considered asa separate offense because it was the revocation of the June 27, 1983 criminal mischief offense. The District Court, in relying on the presentence investigation report, incorrectly counted the criminal mischief offense dated December 11, 1986, as a new felony conviction, when 

### in fact, it was the revocation of a June 27, 1983 criminal mischief offense that the courthad previously counted. Additionally,the District Court incorrectly counted the criminal endangerment and criminal possession of dangerous drugs offenses dated 

### May 1, 1990, as one felony instead of as two separate felonies. However,although the court misinterpreted Willson's criminal record contained in the presentence investigation report, it properly concluded that Willson has a criminal record,which includes five felony convictions. We hold that the ~istrictCourt arrived at the right conclusionby thewrong means, and as 

### such,committed no error that mandates resentencing in this instance. Furthermore, the District Court did not commit error when it relied in part on Willson's entire criminal record in sentencing Willson. A district court is given "broaddiscretion to determinethe appropriate punishment for a conviction." State v. Carson (1984), 208 Mont. 320, 322, 677 P.2d 587, 588. 

### A district court, however, must set forth its reasons for sentencing a defendant in order for the sentence to be properly reviewed at a later time by the Sentence Review Board or this Court. State

### v. Stumpf (1980), 187 Mont. 225, 226, 609 P.2d 298, 299. Here, the District Court, in pronouncing Willson's sentence, stated that its reasons behind Willson's sentence were Willson's entire and extensive criminal record, as well as Willson's threat to society. It is also noteworthy that Willson's sentence is consistent with the presentence investigation report, which recommended that willson be given a "lengthy sentence." We hold that the District Court sufficiently explained its reasons for Willson's sentence, and as such, committed no error in sentencing Willson that mandates his resentencing other than as discussed in the first issue of this opinion.

3. Whether the sentence designation as a dangerous offender

was erroneous. Willson argues that the District Court erred when it designated him a dangerous offender for parole eligibility purposes. He argues that this designation was erroneous because of the DistrictCourt'smiscountingofhis felonyconvictions. We already have held that the District Court committed no reversible errorwhen itmisinterpreted Willson's criminal recordyet arrived at the correct number of Willson's current felony convictions. Furthermore, the District Court did not find Willson a dangerous offender because of a specific number of felony convictions. Rather, the District Court considered the presentence investigation report, which included Willson's entire criminal record beginning in 1983 and more importantly, found that Willson represented a substantial danger to society. Section 46-18- 404(l) (b), MCA (l989), provides that a defendant shall be designated a non-dangerous offender if Itthecourthas determined,based

on any presentence report and the evidence presented at the trial and the sentencing hearing, that the offender does not represent a substantial danger toother persons or society." Here,Willson's

own testimony and his criminal record reveal that he has suffered from a serious drug problem for several years. In his current offenses, Willson drove through downtown Billings at speeds up to 100 miles an hour while under the influence of crank and cocaine. His actions resulted in property damage and injuries to innocent people. The record indicates thatWillson represents a substantial danger to other persons and society. We therefore hold that the District Court committed no error when it designated Willson a dangerous offender for parole purposes.4. Whether on remand for resentencing Willson should be entitled to a different sentencing judge. Willson argues that this Court should order a new district court judge for resentencing of this case, or in the alternative, allow him the right to move for substitution of the sentencing judge

# . Section 3-1-804(1)(g), MCA (1989),provides: When a new trial is ordered by the district court, each adverse party shall thereupon be entitled to one motion for substitution of judge in the manner provided herein. When on appeal the judgment or order appealed from is reversed or modified and the cause is remanded to the district court for a new trial, or when a summary judgment or judgment of dismissal is reversed and the cause remanded, each adverse party shall thereupon be entitled to one motion for substitution of judge in themanner provided herein. Such motion must be filed, with the required filing fee in civil cases, within twenty (20) days after a new trial has been ordered by the district court or after the remittitur from the Supreme Court has been filedwith thedistrict court. No other riqht of further substitution shall arise in cases remanded by the supreme court. In criminal cases, no further riqht of substitution shall arise when the cause is remanded for resentencinq. (Emphasisadded.) In interpreting legislativeintentof statutory language,this Court first examines "theplainmeaning of thewordsused. Dunphy

v. Anaconda Co. (1968), 151 Mont. 76, 80, 438 P.2d 660, 662

(citations omitted). Clearly, by the plain meaning of the wordsused, 

### 1 3-1-804(1)(g), 

### MCA (1989), does not provide for substitution of a district court judgewhen a cause of action is remanded for resentencing. We thereforehold thatWillson is not entitled to a new district court judge nor is he entitled to move for substitution of a sentencing judge. In conclusion, we remand this case for resentencing on the possession of dangerous drugs conviction and affirm on all other issues.

Chief Justice \

We concur:

### October 8. 

### 1991 CERTIFICATEOFSERVICE 

### Iherebycertifythatthefollowingorderwas sentbyUnited Statesmail,prepaid, to the followingnamed:

Richard J.

### Carstensen Attorney atLaw P.O. Box 2093 Billings,MT 59103-2093 Hon. MarcRacicot, Attorney General MichealWellenstein,Asst.Atty. Gen. JusticeBldg. Helena,MT 59620 DennisPaxinos,County Attorney Charles

### E.Bradley, Deputy P.O. Box 35025 Billings,MT 59107-5025 

### EDSMITH CLERKOFTHESUPREME COURT STATEOFMONTANA