### No. 80-194 IN THE SUPREME COURT OF THE STATE OF MONTANA 1980

JAMES P. CAVANAUGH AND JAMES I. MESLER, Petitioners,-vsROGER W. CRIST,Warden, Montana State Prison, Respondent.

ORIGINAL PROCEEDING:

Counsel of Record: For Petitioners: James P. Cavanaugh, Pro Se, Deer Lodge, Montana James I. 

### Mesler, Pro Se, Deer Lodge, Montana For Respondents: Hon. Mike Greely, Attorney General, Helena, Montana Donald White, County Attorney, Bozeman, Montana J. Fred Bourdeau, County Attorney, Great Falls, Montana

Submitted: July 29, 1980 Decided: 

## AUG

# 14

# 1980 BUG

# 141986 Filed:Mr. 

### Justice John Conway Harrison delivered theOpinion of the Court. This is an original application for a 

### writof habeas corpus inwhich petitioners James Cavanaugh and James Mesler 

### jointly challenge the constitutionality of section 46-18- 202(2)

## ,MCA. 

### That sectionpermits districtjudges to sentence persons convicted of felonies toimprisonment with no possibility of parole orparticipation inthe prisoner furloughprogram. James Cavanaugh received concurrent sentences of one hundred years and twenty years for aggravated kidnapping and aggravated assault. James Mesler 

### was sentenced to ten years

. 

### for robbery. The districtjudges imposed the restrictions of section 46-18-202 (2),MCA, 

### on both petitioners. Both pleaded guilty to the offenses charged. The application forhabeas corpus relief alleges that section 46-18-202(2), MCA, is

### unconstitutional on equal protection, due process and vagueness grounds and as an unlawful delegation of legislativeauthority. Among the

numerous contentions raised by petitioners is that their convictions and sentences areinvalid. However, the constitutional attack on the statute isnot an attack on the underlying convictions. The districtjudge's decision whether to impose the fullrestrictions of section 46-18- 202(2) 

### occurs subsequent toand does not affect the underlying conviction. Therefore, the issuepresented isone of

a sentencing statute. If it

### were tobe found unconstitutional, the only appropriate remedy would be toremand for resentencing and not overturn the convictions. This Court 

### willaddress only the issue of whether the restrictions on petitioners' parole and prisoner furlougheligibility imposed pursuant to section 46-18-202(2), MCA,

are constitutional. In 1977, the legislature amended section 95-2206, R.C.M. 1947, which 

### set out the sentencing options available to

### a districtjudge by adding subdivision (3)

### (b)

# . See Chapter 580, Laws of 1977. That provision, now section 46- 18-202

### (2), MCA, 

### states: "Whenever the districtcourt imposes a sentence of imprisonment inthe stateprison for a 

### term exceeding 

### 1year, the courtmay also impose the restriction that the defendant be ineligible for parole and participation inthe prisoner furlough program while serving his 

### term. If such 

### a restriction 

### is tobe imposed, the court shall state the reasons for 

### it inwriting. If the court finds that the restriction 

### is necessary for the protection of society, 

### it shall impose the restriction 

### ---- aspart of the sentence and the judgment shall contain a statement of the reasons for the restriction." (Emphasis added.) The clear effectof section 46-18-202(2) 

### is topermit 

### a districtjudge to close one avenue for escaping the full force of a sentence. This complete restriction on parole and furloughprogram eligibility 

### isdistinct from the partial restriction that follows 

### a determination by the DistrictCourt that a defendant 

### is ineligible for designation

as

### a nondangerous offender. See section 46-18-404, MCA. In the latter case, a defendantmust serve atleast one-half of his full term, 

### less good 

### time, tobe eligible for parole. A defendant who 

### isdesignated a nondangerous offender becomes eligible forparole after serving one-quarter of his full term, less good time. Section 46-23-201, MCA. Unless he is sentenced under section 46-18-202(2), MCA, a defendantmay apply toparticipate inthe furlough program after serving atleastone-half of the time required tobe considered for parole. Section 46-23-411, MCA.Petitioners contend that section 46-18-202 (2) fails to include procedural elements which they allege arerequired to

### meetdue process standards. The elements presented are: (1)notice that a complete restriction on parole and furlough program eligibilitymay be imposed as a part of the sentence; (2) 

### a jury trial specifically addressing this matter; and (3) proof beyond a reasonable doubt that the restriction

### isrequired. Petitioners rely on decisions involving sentence enhancement statutes and 

### cite Spechtv. Patterson (1967), 386 U.S. 605, 87 S.Ct. 1209, 18L.Ed.2d 326, as controlling. In Specht the defendant was convicted of "indecent liberties" under a Colorado statutewhich carried 

### a ten-year maximum sentence. The defendant, however, was sentenced under the state's Sex Offender Act which permitted an indeterminate 

### termof from one day to life. His sentencing followed a separate commitment proceeding conducted pursuant to the act, to determine whether the defendant constitutes a threat of bodily harm tomembers of the public, or 

### is an habitual offender and mentally ill. The defendant was not given notice or an opportunity tobe heard as to that determination and argued that the due process clause was, therefore, violated. The Supreme Court agreed. The Court found inSpecht that the Colorado act

### required the trialcourt to determine 

### a fact that

### was not an ingredient of the charged offense and compared the act's proceedings to "those under recidivist statuteswhere an habitual criminal issue is a 'distinct issue' 

# . 

# . . on which

a defendant 'must receive reasonable notice and an opportunity tobe heard.'" Specht

### v. Patterson, 386 U.S. at610. The Court ruled where such commitment proceedings are involved,due process requires the defendant tobe present with counsel, tohave an opportunity to be heard, toconfront witnesses against him, and topresent witnesses of his own. Due process standards arerequired where 

### a sentence 

### is tobe enhanced on the basis of a psychiatric evaluation and past behavior and pursuant to a separate act (asinSpecht). It 

### isnot required for section 46-18-202(2), MCA. This statute 

### isnot a sentence enhancement statute. The statute does not permit districtjudges to add any 

### timebeyond the statutory maximum for the underlying offense. In this respect, section 46-18-202(2) is fundamentally different from the kinds of statutes examined inthe cases petitioners cite. In Specht, for instance, while the underlying offense carried a ten-year maximum sentence, the Sex Offender Act permitted a sentence of from one day to 

### life. The Montana statute does not permit enhancement. It insures that the length of the penalty enacted by the legislature and imposed by the court is carried out. The 

### restriction on parole and furlough eligibility permitted by section 46-18-202(2) has no existence beyond the 

### term of the sentence imposed for the underlying offense. The Specht-type statute entails 

### a proceeding which 

### is separate from the ordinary sentencing proceeding. As the Supreme Court emphasized inSpecht, the Colorado Sex Offender Act "makes one conviction the basis for commencing another proceeding under another Act

# .

# .." 386 U.S. 

### at 608. Section 46-18-202(2), on the other hand, has no such effect. The restriction of parole and furlough Program eligibility is "a part of the sentence" by the express terms of the statute and does not involve any proceeding except the ordinary sentencing proceeding. It represents oneoption, among others, that the legislature has made available to districtjudges inthe course of ordinary sentencing. The fullrestriction on parole and furlough eligibility permitted by section 46-18-202(2) has no existence apart from the sentence imposed for the underlying offense. Petitioners further contend that section 46-18-202 (2) 

### is similar tothe Specht-type statute inthat the full restriction on parole and furlough program eligibilitymust be necessary for "the protection of society." They argue this 

### is a factdetermination thatrequires a jury. DistrictCourts arerequired to determine whether the fullrestriction on parole and furlough eligibility 

### is necessary for "theprotection of society" when a person 

### is sentenced after conviction. This matter 

### is not an element of determining whether the underlying offense was committed. After conviction, such considerations 

### as to "protect society from the actions of the guilty" 

### is a matter of the ordinary

course of sentencing proceedings. The source of the constitutional doctrine sanctioning the traditional relaxation of 

### trial standards 

### isWilliams v. 

### New York (1949), 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337. InWilliams the defendant

### was convicted of murder and then sentenced to death, rather than lifeimprisonment, largely

on the basis of background information contained ina presentence report prepared by probation authorities. He challenged the sentence because he had been given no opportunity to confront and cross-examine the witnesses who supplied the information inthe report. The Supreme Court upheld the sentence and approved the trialjudge's use of such unchallenged evidence. It relied on a nonadversarial theory of penology inwhich punishment 

### is individualized to fitthe

### offender and notmerely the crime. The sentencing judge should be concerned with obtaining as much information about the defendant as possible, the Court asserted, and most information that courts relied upon in the "intelligent imposition of sentences"would become unavailable if it could be obtained only in open court and subject to crossexamination. Williams, 337 U.S. at 250. The Supreme Court allowed very broad judicial discretion, based on the principle that courts should not be encumbered by the procedural formality required at trial. This remains the rule. The Specht court classified Williams

as "a case where at the end of the trial and in the same proceeding the fixing of the penalty for firstdegreemurder

was involved." Specht, 386 U.S. at 606-607. Here is a case where the admissions of guilt and the fixing of the penalties for the crimes admitted were conducted in the same proceeding. The judge inWilliams, in sentencing the defendant to death rather than life imprisonment,relied on the information in the presentence report. Since the Court in Specht specifically announced itwould adhere to Williams, which permitted the judge to make such a finding on the basis of hearsay, then Williams is controlling in these facts. While the trial judge in Williams examined past events, he was doing so only to predict the defendant's future behavior rather than impose a separate punishment for past actions. The same is true here. Federal courts have consistently declined to extend fullprocedural due process protections to defendants whose sentences were enhanced by federal statute. In United States v. Bowdach (5thCir. 1977), 561 F.2d 1160, the court rejected the argument that such proceedings must include anopportunity to have a jury determine the requisite facts. See alsoUnited Statesv. Stewart (6thCir. 1976), 531 F.2d 326, cert. denied, 426 U.S. 922, 96 S.Ct. 2629, 49 L.Ed.2d 376; United States v. Holt (D. Tex. 1975), 397 F.Supp. 1397, affirmed inpart and vacated inpart, (5thCir. 1975), 537 F.2d 845, 

### cert. denied, 429 U.S. 1051, 97 S.Ct. 764, 50 L.Ed.2d 767; United Statesv. Neary (7thC;ix.1977)

## , 552 F.2d 1184, 

### cert. denied, 434 U.S. 864, 98 S.Ct. 197, 54 L.Ed.2d 139. In Hollis v. Smith (2nd Cir. 1978), 571 F.2d 685, 693, the court said: "There 

### isno authority 

# .

# . . which holds that the procedure inproceedings relating solely to punishment, even when an additional facthas to be established, must conform precisely to those inproceedings relating to guilt, and 

### we see no basis inprinciple for soholding. 

# .

# ."
While there 

### isno right to a jury trial on sentencing

or compelled attendance of persons supplying hearsay information, 

### Williamsv. New York, supra, certain protections 

### are necessary inordinary sentencing. A defendant has the right to counsel atsentencing, Mempa v. Rhay (1967), 389 U.S. 128, 88 S.Ct. 254, 19L.Ed.2d 336, and to have his sentence based on accurate information, Townsend v. Burke (1948)

## , 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690. And, as this Court held inStatev. Stewart (1977), 175Mont. 286, 573 P.2d 1138, 1139, 

### a defendant has the right tobe free from 

### a districtjudge's abuse of sentencing discretion. In addition, a districtjudge must now statereasons for the sentence he imposed inthe record 

### inevery case. State

### v. Stumpf (1980)

## , Mont. 

## - , 609 P.2d 298, 37 St.Rep. 673. Cavanaugh's sentence and judgment shows that he appeared for sentencing, with counsel, approximately one month afterentering pleas of guilty to the charged offenses. Cavanaugh
was given the opportunity topresent evidence inmitigation of sentence atthe sentencing hearing, but infact, presented no evidence. Cavanaugh was given the opportunity to address the courtbefore sentence was imposed. He declined todo so. Material appearing in the presentence report, including hispast felony record, 

### was summarized by the court, Cavanaugh was asked if there 

### was any legal cause why sentencing should not be imposed. He offered nothing. Mesler's record indicates likewise. Mesler, with the

concurrence of counsel, waived a presentence report. He testified atthe sentencing proceeding. Both petitioners

were accorded allthe procedural protections required by the court. Petitioners contend that section 46-18-202 (2), MCA, denies equal protection because it provides differentpunishments, ordifferentdegrees of punishment, for different persons for the same act. This Court recognizes that virtually every sentencing provision has this effect. As the Supreme Court noted inWilliams, the "prevalentmodern philosophy of penology [is] that the punishment should fit the offender and notmerely the crime." Furthermore, "[tlhe belief no longer prevails that every offense in like legal category calls for an identical punishment without regard to past lifeand habits of a particular offender." 337 U.S. at 247. Parole and participation in the furlough program, both of which relate topunishment, areprivileges--matters of grace, not rights. Lopez v. Crist (1978), Mont. 

## , 578 P.2d 312, 314, 35 St.Rep. 622; Petition of Hart (19651, 145Mont. 203, 206, 399 P.2d 984. The districtjudges didnot deprive petitioners of a right when they decided that petitioners should be imprisoned with no possibility of parole or participation inthe furlough program. The districtjudges withheld grace. Section 46-28-202(2), MCA, which allows a districtjudge to restrict conditional 

### release, does not single out 

### a classwithout rationality. Individualized sentencing goals must be 

### met. Any kind of conditional release necessarily involves the risk that parolees "will not be able to live in societywithout committing additional anti-social acts." Morrissey v. Brewer (1972), 408 U.S. 471, 483, 92 S.Ct. 2593, 33 L.Ed.2d 484. Petitioners also claim that section 46-18-202(2) must fallbecause it 

### is too vague indefining the supposed "offense" citingLanzetta v. New Jersey (1939), 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888. Petitioners aremisled. Section 46-18-202(2) does not define an offense. It 

### is invoked not somuch on the basis of past acts ason the basis of 

### a prediction of futurebehavior. It focuses on the offender, not on a particular offense. It does not create a new offense; nor does 

### it forbid or require the doing of an act. 

### Its solepurpose 

### is topermit a districtjudge, in the

course of ordinary sentencing, todetermine that a defendant should serve his full sentence for the protection of society. Finally, petitioners contend that section 46-18-202(2) unlawfully delegates legislative authority to the judicial and executive branches of government. The real thrust of this argument appears tobe that section 46-18-202(2) vests too much discretion indistrictjudges and prosecuting attorneys. Petitioners allude toprosecutorial vindictiveness in the use of this statute as a device topunish defendants who choose togo to trial rather than plead guilty.The fact thatboth petitioners here did plead guilty and

were subsequently sentenced without possibility of parole or participation inthe furlough program 

### is convincing evidence to the contrary. ~istrict judges, not county prosecutors, determine the punishment that 

### is imposed following conviction. Petitioners' allegation thatprosecuting attorneys somehow induce district judges into restricting parole and furlough program eligibility ignores the plain language of the statute ("

# . . . the courtmay also impose the restriction

# .. ."). While a recommendation might be made ina given case that the full restriction permitted by section 46-18-202 (2) should be imposed, the determination whether todo so 

### ismanifestly the districtjudge's alone. This Court finds the contention that excessive judicial discretion exists inpermitting districtjudges to choose to fullyrestrictparole and furlough participation 

### iswithout merit. A districtjudge isparticularly 

### wellpositioned to predict whether the restriction 

### is necessary for the protection of society inlightof the offender's personal and criminal history, apparent willingness to conform his behavior to society's rules, and other facts that are commonly weighed insentencing. For the reasons 

### set forthpetitioners' application for

a 

### writof habeas corpus 

### isdenied.

### We concur:

ustices 

# ii

Mr. Justice Daniel J. Shea will file a special concurring opinion later.