NO. 94-340

IN THE SUPREME COURT OF THE

1995

STATE OF MONTANA

Defendant and Appellant

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable Edward P. McLean, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

William F. Hooks, Appellate Defender Office,

Helena, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Kathy Seeley, Assistant Attorney General,

Helena, Montana

Robert L. "Dusty" Deschamps, III, Missoula

County Attorney, Daniel Safransky, Deputy

County Attorney, Missoula, Montana

Submitted on Briefs: June 20, 1995

Decided: September 8, 1995

Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.

The defendant, Ronald D. Pence, WEIS charged by amended

information, filed in the District Court for the Fourth Judicial

District in Missoula county, with robbery, in violation of

§ 45-5-401, MCA. He pled guilty to that charge. The District

Court imposed a three-year deferred sentence subject to conditions.

Pence violated several of the conditions, and pursuant to a

petition to revoke his deferred sentence, the District Court

sentenced Pence to 40 years in prison, with 25 years suspended, and

declared Pence a dangerous offender. Pence appeals the District

Court's order. We reverse the District Court.

The issues raised on appeal are:

1 . Did the District Court err when it designated Pence a

dangerous offender for purposes of parole eligibility?

2 . Did the District Court err when it failed to consider

alternatives to imprisonment?

FACTUAL BACKGROUND

On September 5, 1992, Frank Vannoy went to his rental property

in which Pence was living to collect past-due rent. Pence paid

Vannoy the money. Vannoy then gave Pence a 30-day eviction notice,

to which Pence allegedly responded, "you are never going to get me

out. 11 After this brief encounter, Vannoy got into a car occupied

by his sister and brother-in-law. Pence then exited the rear

entrance of his home. Vannoy insists, and Pence denies, that Pence

had a shotgun with him and "demanded us to halt." Vannoy alleged

2
that Pence approached the car, pointed the shotgun at him, his

sister and brother-in-law, and demanded the rental money which had

been paid. Pence denied Vannoy's account of the incident. He

admitted that he exited the rear entrance of the rental property,

but asserted that he did not have a shotgun.

On September 21, 1992, Pence was charged by information filed

in the District Court for the Fourth Judicial District Court,

Missoula County, with robbery, pursuant to § 45-5-401, MCA, and two

counts of felony assault, pursuant to 5 45-5-202, MCA, for this

incident, and also with theft, pursuant to § 45-6-301, MCA, for an

unrelated incident. The information specified that, for purposes

of the robbery charge, Pence put Frank Vannoy "in fear of immediate

bodily injury by pointing a shotgun at him."

Pence pled not guilty to all four charges. The Missoula

County Attorney's office, on June 1, 1993, filed an amended

information, charging Pence with robbery. The amended information

specified that Pence, while in the course of a theft of $300,

"threatened to inflict bodily injury upon Frank Vannoy." The

amended information did not specify that Pence used a shotgun to

commit the robbery. Pence pled guilty to the robbery charge. In

his written guilty plea, Pence indicated that he had taken "$300

from Frank Vannoy[,l threatening him if he didn't give it to me."

The District Court received a presentence investigation

report, and on September 2, 1993, ordered Pence's imposition of

sentence deferred for three years, subject to compliance with

3
16 terms and conditions of probation. The relevant terms and

conditions included that: (1) Pence not enter any establishment

whose primary source of business comes from the sale of alcohol;

(2) Pence not possess or use any alcoholic beverages or use any

illegal drugs; (3) Pence submit to blood, breath, and/or urine

testing for the purpose of alcohol and/or drug detection upon the

request of his probation officer; and (4) Pence obtain counseling

as directed by his probation officer. Subsequently, Pence violated

all four of these terms and conditions. In addition, Pence

violated a state probation rule that prohibits probationers from

owning, possessing, or being in control of firearms or deadly

weapons.

Pence's probation officer filed a report of probation

violation in the District Court. The report indicated that Pence

admitted possession of a firearm and the use of marijuana. As a

result, Pence's probation officer had Pence's truck searched.

Ammunition, a pocket knife, a wooden club, and a "bullet-riddled

silhouette target" were found in the truck. Additionally, the

report indicates that, as a result of a search of Pence's home,

probation officers located several firearms.

The report recommended that the District Court revoke Pence's

three-year deferred sentence, and that the court sentence Pence to

seven years in prison, with three years suspended. The report also

recommended that the court consider Pence for the intensive

supervision program.
The District Court held hearings to consider the alleged

probation violations. At the initial hearing, Pence admitted all

violations except the weapons violations. At a subsequent hearing,

Pence's probation officer provided testimony to substantiate the

weapons violations.

At the conclusion of Pence's probation officer's testimony,

the District Court found that Pence had violated the terms of his

probation. The court revoked its earlier deferred sentence and

sentenced Pence to 40 years in the Montana State Prison, with

25 years suspended. The District Court's rationale for its ruling

was as follows: that Pence had placed Frank Vannoy in great fear;

that Pence had signed two documents indicating that he knew that

possessing weapons violated his probation; that the court took a

great risk in placing Pence on probation in light of the fact that

Pence had used a weapon during the commission of the robbery; and

that Pence did not appreciate the court's probationary sentence and

went back to his previous behavior of possessing firearms.

The court designated Pence a dangerous offender for purposes

of parole eligibility, based on its conclusion that Pence's

attitude about the use of firearms mandated such a designation.

Immediately following the District Court's oral ruling,

Pence's counsel asked the judge to reconsider his sentence,

pointing out that the court was required to consider alternatives

to incarceration. The court denied counsel's request, stating

that, I' [tlhe Court considered alternative placement prior to

5
today's proceeding. The Court is greatly concerned when there are

violations of an armed robbery who [sic] turns around and

possesses, I believe, six different types of weapons."

Pence appeals the District Court's judgment.

ISSUE 1

Did the District Court err when it designated Pence a

dangerous offender for purposes of parole eligibility?

We review a district court's dangerous offender designation to

determine whether the District Court abused its discretion. state ".

Buckman (1989), 236 Mont. 37, 40, 768 P.2d 1361, 1363.

Dangerous offender designation is based on § 46-18-404(l),

MCA, which provides:

Except as provided in subsection (4), the sentencing

court shall designate an offender a nondangerous offender

for purposes of eligibility for parole . if:

(a) during the 5 years preceding the commission of

the offense for which the offender is being sentenced,

the offender was neither convicted of nor incarcerated

for an offense committed in this state or any other

jurisdiction for which a sentence to a term of

imprisonment in excess of 1 year could have been imposed;

and

(b) the 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.

If the court finds that both subsections (a) and (b) of the

statute have been satisfied, the court must designate the offender

nondangerous. However, if only one part of the statute applies to

the offender, it is within the court's discretion whether to

designate him dangerous for parole purposes. State v. Lorenz (Mont.

6
267 Mont. 186, 188, 883 P.2d 98, 99 (citing slate v. Mihv (1988) , 231

Mont. 497, 517, 757 P.2d 1275, 1287).

Section 46-18-404(3), MCA, requires that if a district court

designates an offender as dangerous, it shall make that

determination part of the sentence imposed and shall state the

determination in its judgment. In addition, we have required

district courts to articulate their reasons for designating an

offender as dangerous. We have held that mere recitation of the

statutory language is not sufficient. See state v. Morrison (1993) , 257

Mont. 282, 848 P.Zd 514.

In its judgment designating Pence a dangerous offender, the

District Court gave the following reasons:

1. Mr. Vannoy was placed in great fear by Mr.

Pence;

2 . Mr. Pence was given a three year deferred

imposition of sentence;

3 . He [Mr. Pence1 signed two documents stating

that he knew that the weapons possession meant that it

was in violation of his probation;

[4.1 The Court took a great risk in placing him [Mr.

Pence] on probation because it was an offense committed

with a weapon and Mr. Pence did not appreciate that and

went back to his previous behavior in possessing

firearms;

[5.] It is the Court's opinion that Mr. Pence cannot

at this time successfully complete a probationary period

without some incarceration;

16.1 The Court feels that until he [Mr. Pence1

changes his attitude about the use of firearms that it is

necessary to designate him a dangerous offender.

7
The District Court did not make specific findings in its

judgment that Pence had been convicted of, or incarcerated for, an

offense committed in the five years preceding the commission of the

robbery charge pending against him, or that Pence represented a

substantial danger to other persons or society. It is clear from

the record that Pence had never been either convicted of or

incarcerated for a felony. As a result, the District Court,was

free to designate Pence a dangerous offender only if it determined

that, based on the presentence report and any evidence presented at

the trial and sentencing hearing, Pence posed a substantial danger

to other persons or to society.

However, the court did not specifically find that Pence posed

a substantial danger to anyone. Furthermore, even if this Court

presumed such a finding, there was no clearly articulated rationale

to support such a finding, as required by our decision in Morrison.

Finally, we conclude that the record did not contain

substantial evidence upon which the District Court could support

designating Pence a dangerous offender, and therefore, that the

District Court abused its discretion when it did so. The District

Court's designation appears to be based on the facts that Pence

placed his victim in "great fear" by use of a weapon and then

continued to possess weapons in violation of the terms of his

probation. However, there is no basis in the record to find that

Vannoy was placed in "great fear." Pence denied using a weapon;

the crime to which he pled guilty did not involve use of a weapon;

8
and his sentence could not have been deferred if his conviction was

based on use of a weapon. Section 46-18-222(5), MCA. Neither does

mere possession of firearms establish that Pence presents a danger

to persons or society.

For these reasons, we reverse that part of the District

Court's sentence which designated Pence a dangerous offender.

ISSUE 2

Did the District Court err when it failed to consider

alternatives to imprisonment?

We review a district court's decision to revoke probation and

sentence an offender to prison to determine whether the court

abused its discretion. State v. Lundquist (1992) , 251 Mont. 329, 331,

825 P.2d 204, 206.

The State first contends that Pence is not a nonviolent

offender. The State asserts that, because Pence was charged with

robbery and because Vannoy alleged in the presentence investigation

that Pence used a shotgun to commit the robbery, he does not

qualify as a nonviolent offender. The State ignores the fact that

Pence did not plead guilty to a charge that alleged either the

threat of, or actual use of, a deadly weapon during the commission

of the crime. Section 46-18-104(3), MCA, defines a nonviolent

felony offender as "a person who has entered a plea of guilty to a

felony offense other than a crime of violence . .' (Emphasis

added.) Section 46-18-104(Z), MCA, defines a crime of violence as:
(a) a crime in which an offender uses or possesses

and threatens to use a deadly weapon during the

commission or attempted commission of a crime;

(b) a crime in which the offender causes a serious

bodily injury or death to a person other than himself; or

(c) any sexual offense in which the offender causes

bodily injury to the victim or uses threat, intimidation,

or force against the victim.

Pence did not plead guilty to a "crime of violence," and unproven

allegations in the presentence report do not change the nature of

his crime. Consequently, we conclude that Pence is a nonviolent

offender

The State contends, in the alternative, that even if Pence is

a nonviolent offender, the District Court adequately considered

alternatives to imprisonment. We disagree. The statutory scheme

quite clearly sets out the steps a district court must take when

sentencing a nonviolent felony offender. Section 46-18-201(10),

MCA, states that:

In sentencing a nonviolent felony offender, the

court shall first consider alternatives to imprisonment

of the offender in the state prison, including placement

of the offender in a community corrections facility or

program. In considering alternatives to imprisonment, the

court shall examine the sentencing criteria contained in

46-18-225. If the offender is subsequently sentenced to

the state prison or the women's correctional center, the

court shall state its reasons why alternatives to

imprisonment were not selected, based on the criteria

contained in 46-18-225.

Section 46-18-225, MCA, states that:

Prior to sentencing a nonviolent felony offender to a

term of imprisonment in the state prison or the women's

correctional center, the court shall take into account

whether:

(1) the interests of justice and the needs of

public safety truly require the level of security

10
provided by imprisonment of the offender in the state

prison or the women's correctional center;

(2) the needs of the offender can be better served

in the community or in a facility or program other than

the state prison or the women's correctional center;

(3) there are substantial grounds tending to excuse

or justify the offense, though failing to establish a

defense;

(4) the offender acted under strong provocation;

(5) the offender has made restitution or will make

restitution to the victim of the offender's criminal

conduct;

(6) the offender has no prior history of conviction

for a criminal act or has led a law-abiding life for a

substantial period of time before the commission of the

present crime;

(7) the offender's criminal conduct was the result

of circumstances that are unlikely to recur;

(8) the character and attitude of the offender

indicate that the offender is likely to commit another

crime;

(9) the offender is likely to respond quickly to

correctional or rehabilitative treatment; and

(10) imprisonment of the offender would create an

excessive hardship on the offender or the offender's

family.

As we have already concluded, Pence is a nonviolent felony

offender. Therefore, the District Court was bound to apply the

procedure required by §§ 46-1%201(10) and -225, MCA. In State v.

Stevens (19931, 259 Mont. 114, 116, 854 P.2d 336, 337, we stated that

5 46-l&201(10), MCA, imposes certain obligations on a court when

sentencing a nonviolent felony offender

Initially, a district court must consider alternatives to

imprisonment. Second, in considering alternatives to imprisonment,

a district court must examine the ten sentencing criteria found in

§ 46-18-225, MCA. Finally, if a district court decides against

11
alternatives to imprisonment, it must provide reasons why it did

not select alternatives. Stevens, 854 P.2d at 337.

The State contends that the District Court's cursory statement

in the sentencing hearing that, 'I [tlhe Court considered alternate

placement prior to today's proceeding, 'I "affirmatively establishes"

that the court considered alternatives to imprisonment. However,

even if we accepted the State's liberal application of

§ 46-l&201(10), MCA, the District Court still failed to comply

with the second and third Stevens requirements.

The District Court's judgment makes no mention of the factors

set forth in 5 46-18-225, MCA, and fails to discuss why, when

considering those factors, an alternative to imprisonment might not

have been appropriate in this case.

For these reasons, we reverse that part of the District

Court's judgment which designated Pence a dangerous offender; and

we vacate the remainder of the sentence and remand for further

consideration of his sentence in light of §§ 46-18-201(10) and

-225, MCA.

We concur: