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 the Thirteenth Judicial 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, 1991 
Chief 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 100 miles an hour. In this 

high-speed drive, Willson collided with two separate occupied motor 
vehicles, destroyinq these vehicles and causing injuries. 

Following this incident, police obtained Will.sonts consent to 

search his clothing. In this search, police found a clear plastic 

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. 

On March 30, 1990, Willson escaped from the Yellowstone County 

jail with six other inmates. Willson later turned himself in to 

authorities, The State amended its information against Willson 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 sentencing hearing. At the 

sentencing hearing, Willson testified that he has suffered from a 

drug problem for several years and was under the influence of crank 

and cocaine at the time of the incident. Following a review of 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 criminal possession of 

dangerous drugs, these two sentences to run consecutively; six 

months imprisonment for possession of drug paraphernalia, this 

sentence to run concurrently to the above sentences; and five years 

imprisonment with two years suspended for escape, this sentence to 

run concurrently with the above sentences. The District Court also 

designated Willson a dangerous offender for parole 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, argues that the District Court erred when 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 2 years or more than 5 years, 

The District Court's sentence of ten years imprisonment with three 

years suspended exceeded the maximum 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 Court miscounted Willson's past felony offenses contained 

in the presentence investigation report 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 sentencing him. We disagree with Willson's arguments. 

The record indicates that although the District Court 

misinterpreted Willson's criminal record as contained in the 

presentence investigation report, it nonetheless 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 sentencing Willson. 

This Court notes that the presentence investigation report 

indicates that Willson currently has a total of five felony 

convictions: 1. criminal endangerment on May 1, 1990; 2. criminal 

possession of dangerous drugs on May 1, 1990; 3. escape on May 1, 
1990; 4. criminal mischief 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 is not considered as a 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 court had 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 ~istrict Court arrived at the right 

conclusion by the wrong 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 "broad discretion to determine 
the 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 

District Court's miscounting of his felony convictions. We already 

have held that the District Court committed no reversible error 
when it misinterpreted Willson's criminal record yet 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 Itthe court has 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 to other 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 that Willson 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 the manner 

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 

filed with the district 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. 

(Emphasis added.) 

In interpreting legislative intent of statutory language, this 

Court first examines "the plain meaning of the words used. Dunphy 

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

(citations omitted). Clearly, by the plain meaning of the words 
used, 1 3-1-804(1)(g), MCA (1989), does not provide for substitution of a district court judge when a cause of action is remanded 

for resentencing. We therefore hold that Willson 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 

CERTIFICATE OF SERVICE 

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

following named: 

Richard J. Carstensen 

Attorney at Law 

P.O. Box 2093 

Billings, MT 59103-2093 

Hon. Marc Racicot, Attorney General 

Micheal Wellenstein, Asst. Atty. Gen. 

Justice Bldg. 

Helena, MT 59620 

Dennis Paxinos, County Attorney 

Charles E. Bradley, Deputy 

P.O. Box 35025 

Billings, MT 59107-5025 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA