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 14 1986 

Filed: 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

This is an original application for a writ of habeas 

corpus in which petitioners James Cavanaugh and James Mesler 

jointly challenge the constitutionality of section 46-18- 

202 (2) , MCA. That section permits district judges to sentence persons convicted of felonies to imprisonment with no 

possibility of parole or participation in the prisoner 

furlough program. 

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 district judges imposed the restrictions 

of section 46-18-202 (2), MCA, on both petitioners. Both 

pleaded guilty to the offenses charged. 

The application for habeas 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 legislative authority. Among the 

numerous contentions raised by petitioners is that their 

convictions and sentences are invalid. However, the constitutional attack on the statute is not an attack on the 

underlying convictions. The district judge's decision 

whether to impose the full restrictions of section 46-18- 

202(2) occurs subsequent to and does not affect the underlying conviction. Therefore, the issue presented is one of 

a sentencing statute. If it were to be found unconstitutional, the only appropriate remedy would be to remand for 

resentencing and not overturn the convictions. 

This Court will address only the issue of whether the 

restrictions on petitioners' parole and prisoner furlough 
eligibility 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 district judge by adding subdivision (3) (b) . See 

Chapter 580, Laws of 1977. That provision, now section 46- 

18-202 (2), MCA, states: 

"Whenever the district court imposes a sentence 

of imprisonment in the state prison for a term 

exceeding 1 year, the court may also impose the 

restriction that the defendant be ineligible 

for parole and participation in the prisoner 

furlough program while serving his term. If 

such a restriction is to be imposed, the court 

shall state the reasons for it in writing. If 

the court finds that the restriction is necessary for the protection of society, it shall 

impose the restriction ---- as part of the sentence 

and the judgment shall contain a statement of 

the reasons for the restriction." (Emphasis 

added. ) 

The clear effect of section 46-18-202(2) is to permit a 

district judge to close one avenue for escaping the full 

force of a sentence. This complete restriction on parole 

and furlough program eligibility is distinct from the partial restriction that follows a determination by the District Court that a defendant is ineligible for designation 

as a nondangerous offender. See section 46-18-404, MCA. In 

the latter case, a defendant must serve at least one-half of 

his full term, less good time, to be eligible for parole. A 

defendant who is designated a nondangerous offender becomes 

eligible for parole 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 defendant may 

apply to participate in the furlough program after serving 

at least one-half of the time required to be considered for 

parole. Section 46-23-411, MCA. 
Petitioners contend that section 46-18-202 (2) fails to 

include procedural elements which they allege are required 

to meet due process standards. The elements presented are: 

(1) notice that a complete restriction on parole and furlough program eligibility may 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 is required. 

Petitioners rely on decisions involving sentence enhancement statutes and cite Specht v. Patterson (1967), 386 

U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326, as controlling. In 

Specht the defendant was convicted of "indecent liberties" 

under a Colorado statute which carried a ten-year maximum 

sentence. The defendant, however, was sentenced under the 

state's Sex Offender Act which permitted an indeterminate 

term of 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 to members of the public, or is an 

habitual offender and mentally ill. The defendant was not 

given notice or an opportunity to be heard as to that determination and argued that the due process clause was, therefore, violated. The Supreme Court agreed. 

The Court found in Specht that the Colorado act required the trial court to determine a fact that was not an 

ingredient of the charged offense and compared the act's 

proceedings to "those under recidivist statutes where an 

habitual criminal issue is a 'distinct issue' . . . on which 

a defendant 'must receive reasonable notice and an opportunity to be heard.'" Specht v. Patterson, 386 U.S. at 610. 

The Court ruled where such commitment proceedings are involved, 
due process requires the defendant to be present with 

counsel, to have an opportunity to be heard, to confront 

witnesses against him, and to present witnesses of his own. 

Due process standards are required where a sentence is 

to be enhanced on the basis of a psychiatric evaluation and 

past behavior and pursuant to a separate act (as in Specht). 

It is not required for section 46-18-202(2), MCA. This 

statute is not a sentence enhancement statute. The statute 

does not permit district judges to add any time beyond the 

statutory maximum for the underlying offense. In this 

respect, section 46-18-202(2) is fundamentally different 

from the kinds of statutes examined in the 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 in Specht, 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 one 
option, among others, that the legislature has made available to district judges in the course of ordinary sentencing. 

The full restriction 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 to the Specht-type statute in that the full 

restriction on parole and furlough program eligibility must 

be necessary for "the protection of society." They argue 

this is a fact determination that requires a jury. 

District Courts are required to determine whether the 

full restriction on parole and furlough eligibility is 

necessary for "the protection 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 is Williams v. 

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

In Williams the defendant was convicted of murder and then 

sentenced to death, rather than life imprisonment, largely 

on the basis of background information contained in a 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 in the report. The Supreme Court upheld the 

sentence and approved the trial judge's use of such unchallenged evidence. It relied on a nonadversarial theory of 

penology in which punishment is individualized to fit the 
offender and not merely 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 first degree murder 

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 in Williams, 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 it would 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 

full procedural due process protections to defendants whose 

sentences were enhanced by federal statute. In United 

States v. Bowdach (5th Cir. 1977), 561 F.2d 1160, the court 

rejected the argument that such proceedings must include an 
opportunity to have a jury determine the requisite facts. 

See also United States v. Stewart (6th Cir. 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 in part and vacated in part, (5th Cir. 1975), 537 

F.2d 845, cert. denied, 429 U.S. 1051, 97 S.Ct. 764, 50 

L.Ed.2d 767; United States v. 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 is no authority . . . which holds that 

the procedure in proceedings relating solely to 

punishment, even when an additional fact has to 

be established, must conform precisely to those 

in proceedings relating to guilt, and we see no 

basis in principle for so holding. . ." 

While there is no right to a jury trial on sentencing 

or compelled attendance of persons supplying hearsay information, Williams v. New York, supra, certain protections are 

necessary in ordinary sentencing. A defendant has the right 

to counsel at sentencing, Mempa v. Rhay (1967), 389 U.S. 

128, 88 S.Ct. 254, 19 L.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 in State v. Stewart (1977), 175 Mont. 286, 573 P.2d 

1138, 1139, a defendant has the right to be free from a 

district judge's abuse of sentencing discretion. In addition, a district judge must now state reasons for the sentence he imposed in the record in every 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 after 
entering pleas of guilty to the charged offenses. Cavanaugh 

was given the opportunity to present evidence in mitigation 

of sentence at the sentencing hearing, but in fact, presented no evidence. Cavanaugh was given the opportunity to 

address the court before sentence was imposed. He declined 

to do so. Material appearing in the presentence report, 

including his past 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 at the sentencing proceeding. Both petitioners 

were accorded all the procedural protections required by the 

court. 

Petitioners contend that section 46-18-202 (2), MCA, 

denies equal protection because it provides different punishments, or different degrees 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 in Williams, the "prevalent modern 

philosophy of penology [is] that the punishment should fit 

the offender and not merely the crime." Furthermore, "[tlhe 

belief no longer prevails that every offense in like legal 

category calls for an identical punishment without regard to 

past life and habits of a particular offender." 337 U.S. at 

247. 

Parole and participation in the furlough program, both 

of which relate to punishment, are privileges--matters of 

grace, not rights. Lopez v. Crist (1978), Mont. , 

578 P.2d 312, 314, 35 St.Rep. 622; Petition of Hart (19651, 

145 Mont. 203, 206, 399 P.2d 984. The district judges did 
not deprive petitioners of a right when they decided that 

petitioners should be imprisoned with no possibility of 

parole or participation in the furlough program. The district judges withheld grace. Section 46-28-202(2), MCA, 

which allows a district judge to restrict conditional release, does not single out a class without 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 society without 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 

fall because it is too vague in defining the supposed "offense" citing Lanzetta v. New Jersey (1939), 306 U.S. 451, 

59 S.Ct. 618, 83 L.Ed. 888. Petitioners are misled. Section 46-18-202(2) does not define an offense. It is invoked 

not so much on the basis of past acts as on the basis of a 

prediction of future behavior. 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 sole purpose is to permit a district judge, in the 

course of ordinary sentencing, to determine 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 to be that section 46-18-202(2) vests 

too much discretion in district judges and prosecuting 

attorneys. Petitioners allude to prosecutorial vindictiveness in the use of this statute as a device to punish defendants who choose to go to trial rather than plead guilty. 
The fact that both petitioners here did plead guilty and 

were subsequently sentenced without possibility of parole or 

participation in the furlough program is convincing evidence 

to the contrary. 

~istrict judges, not county prosecutors, determine the 

punishment that is imposed following conviction. Petitioners' 

allegation that prosecuting attorneys somehow induce district 

judges into restricting parole and furlough program eligibility ignores the plain language of the statute (" . . . the 

court may also impose the restriction . . ."). While a 

recommendation might be made in a given case that the full 

restriction permitted by section 46-18-202 (2) should be 

imposed, the determination whether to do so is manifestly 

the district judge's alone. 

This Court finds the contention that excessive judicial 

discretion exists in permitting district judges to choose to 

fully restrict parole and furlough participation is without 

merit. A district judge is particularly well positioned to 

predict whether the restriction is necessary for the protection of society in light of the offender's personal and 

criminal history, apparent willingness to conform his behavior to society's rules, and other facts that are commonly 

weighed in sentencing. 

For the reasons set forth petitioners' application for 

a writ of habeas corpus is denied. 
We concur: 

ii ustices 

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

opinion later.