DA 06
- 0659 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 2007 MT 280
ST ATE OF MONTANA, Plaintiff and Appellee,
v. LARRY STEVEN GARLAND, Defendant and Appellant.

APPEAL FROM: Di strict Cour t of the Fi rst Judicial District, In and For the County

of Lewis And Clark, Cause No. ADC 1993

- 169 Honorable Dorothy

McCarter, Presiding Judge COUNSEL OF RECORD:

For Appellant: Larry Steven Garland (Pro Se), Shelby, M ontana For Appellee : Hon. Mike Mc Grath, Montana Attorney General, C. Mark Fowler , Assistant Attorney

General , Helena, M ontana Leo Gallagher, Lewis and Clark County A ttorney, Lisa Leckie, Deputy Count y Attorney, Helena, Montana

Submitted on Briefs: July 18, 2007 Decided: N ovember 6, 2007 Filed:

__________________________________________ Clerk November 6 20072

Justice James C. Nelson delivered the Opinion of the Court. ¶1 Appellant

L arry Steven Garland , proceeding pro se, appeals from the decision of the District Court for the First Judi cial District, Lewis and Clark C ounty , denying Garland’s P etition to M odify Defendant’s Written Judgment to C onform to the Courts’ O ral P ronouncement

of S entence . We affirm. ¶2 The issueon appeal is as follows : Does the District Court’s written judgment an d commitment

conform to the court’s oral pronouncement of sentence ? FACTUAL AND PROCEDURAL BACKGROUND ¶3 On October 29, 1993, Garland was charged by information with one count of d eliberate h omicide, in violation of § 45
- 5
- 102, MCA. This charg e stemmed from an October 22, 1993 incident in which Garland shot and killed his wife, Nina Jean Garland. Garland plead ed

not guilty to the charg e on November 2, 1993. ¶4 On March 16, 1994, Garland changed h is plea to guilty of

o ne count of mitigated d eliberate h omicide. The District Court , the Honorable Dorothy McCarter presiding, ordered a pre sentenceinvestigation and set Garland’s sentencing hearing for April 26, 1994. Present at that

h earing were Judge McCarter, Lewis and Clark County Attorney Mike McGrath, Garland , and his attorney , J
. Mayo Ashley. Initial ly, Judge McCarter imposed a 30
- year sentence for mitigated d eliberate h omicide and a1 0
- year sentence for
u se of a d angerous w eaponin the commission of this offenseandordered thesesentences to be served cons ecutively. Judge McCarter then explained her reasoning behind the sentence as well as the conditions on Garland’s parole eligibility
.3

¶5 After doing so, Judge McCarter asked the county attorneyi f she had omitted anything , at which point

the following discus sion ensued : MR. MCGRATH : Your Honor, for point of clarification in terms of supervision upon his release from a practical standpoint what would work much better would be for the Court to impose a 40 year sentence with ten suspended so that then it is c le ar you are still impossing [sic] the identical sentence but then it is clear there is a suspended portion of the sentence and that allows the probation office to supervise him with the conditions that you have imposed. THE COURT : Iam wondering how that w ill affect the time of his parole eligibility. MR. MCGRATH : It doesn’t. THE COURT : It won’t? MR. MCGRATH : It is the same. THE COURT : Okay. MR. MCGRATH : The effect is the same, just adds a tail at the end. MR. ASHLEY : Iam not sure that is true, Your Honor. If you have got two sentences running consecutively, you have got to discharge one, at least one portion of it before the other one kicks in. THE COURT : Ithink with the previous ten years consecutive after the 30 years

-- MR. MCGRATH : I understand from Mr. Piskolich[ the probation and parole office r who prepared the presentenceinvestigationreport ] that they can parole him from the first sentence to the second sentence and my understanding is it w orks the same, but what this does is give us a su spended portion so that they know what they are supposed to do and have the ability to supervise. THE COURT : Okay. W e will do that. S o it will be 40 years with ten suspended. A s long as -- Iw ant it understood that a s long as that doesn’t make his p aro le eligibilitys ooner. Idon’t want his p arole eligibilityany sooner than it would be with 40 straight years. Okay. MR. MCGRATH : That will be fine. THE COURT : Okay. ¶6 The following day, Judge McCarter e ntered thewritten judgment and commitment, which reflected the originals entence of 30 years for the offense of mitigated deliberate homicide plus 1 0 years for use of ad angerous w eapon in the commission of this o ffense, to be served consecutivelyand with no portion of either4

sentence suspended
. As a r esult, Garland wrote a letter to Judge McCarter, inquiring as follows: I was sentenced on April 22 [sic], 1994 in your court. You sentenced me to 30 years with 10 years suspended + 10 years for use of a weapon to run consecutively. The court sent the pap ers to the prison in error and did not reflect the 10 year suspension you gave me but 40 years non

- dangerous. Is it possible for someone to send me a copy of the sentencing transcript so I can get the proper credit and correct sentence you gave me. ¶7 In re sponse to this letter, Judge McCarter wrote to Garland explaining: As you recall, during the sentencing proceeding I discussed with the attorneys the possibility of suspending a portion of your sentence. However, upon further discussion with the attorney s, it b ecame apparent that suspending a portio n of the sentence would affect your parole eligibility. It w as myintention that your p arole eligibility be based on 40 straight years. Therefore, I ultimately decided to impose a sentence of 30 years for theo ffense, and 10 years for use of a dangerous weapon, both sentences to run consecutively. Idid not suspend any portion of your sentence. Judge McCarter concluded that the sentence contained in the written judgment and commitment “is accurate,” and Garland did not appeal this determination. ¶8 Almost twelve years later, on August 15, 2006, Garland submitted a Petition to Modify Defendant’s Written Judgment to Conform to the Courts’ Oral Pronouncement of Sentence
. G arland relied on § 46
- 18
- 117, MCA( 199 3) , 1 which states : “ The court may correct an erroneous sentence or disposition at any time
. . . . ” Garland claimed that the sentence contained in the District Court’s written judgment dated April 27, 1994, was
erroneous because it w as different than , an d in direct conflict with , thec ourt’s o ral

1 The applicable sentencing statutes are those in effect at the time the underlying offense was committed. State v. Seals , 2007 MT 71, ¶ 8, 336 Mont. 416, ¶ 8, 156 P.3d 15, ¶ 8. A s noted above, Garland’s o ffense was co mmitted October 22, 19 93.5

pronouncement of sentence the previous day
. G arland claimed this v iolated State v. Lane , 1998 MT 76, 288 Mont. 286, 957 P.2d 9, and its progeny , which hold that the sentence orally pronounced from the bench, in the defendant’s presence, is the legally effective sentence and final judgment
. See Lane , ¶ 40; State v. Simpson , 1999 MT 259, ¶ 14, 296 Mont. 335, ¶ 14, 989 P.2d 361, ¶ 14; State v. Johnson , 2000 MT 290, ¶ 15, 302 Mont. 265, ¶ 15, 14 P.3d 480, ¶ 15; State v. Lucero , 2004 MT 248, ¶ 24, 323 Mont. 42, ¶ 24, 97 P.3d 1106 , ¶ 24. ¶9 The S tate filed a response to Garland’s petition on August 28, 2006, and on September 5, 2006, the District Court entered its decision and order denying Garland’s petition on the gro und that the written judgment was not in conflict with the oral pronouncement. The court explained:

Everyone, including Defendant, understood the discussion at the sentencing hearing that the ten years would be suspended only if it had no effect on the time of parole eligibility
. P rior to signing the written judgment, the Court learned that suspending ten years would indeed shorten the time of Defendant’s parole eligibility. Thus, the written judgment indicated a straight 40

- year sentence. This appeal followed. STANDARD OF REVIEW ¶10 We review a criminal sentence for legality only. State v. Eaton , 2004 MT 283, ¶ 11, 323 Mont. 287, ¶ 11, 99 P.3d 661, ¶ 11. A determination of a sentence’s legality is
a question of law and we review such questions de novo . State v. Seals , 2007 MT 71, ¶ 7, 336 Mont. 416, ¶ 7, 156 P.3d 15, ¶ 7. DISCUSSION6

¶11 Does the District Court’s written judgment and commitment conform to the court’s oral pronouncement of sentence? ¶12 Garland contends that the written judgment, under which he w as sentenced on April 27, 1994, and is currently incarcerated, is invalid as it does notc onform to the District Court’s oral pronouncement of sentence
. Citing Lane , ¶ 40, Garland argues that the sentence orally pronounced from the bench in the presenceo f the defendant is the legally effective sentence and valid, final judgment. Garland claims that while his sentence at the April 26, 1994 hearing was pronounced as 40 years with 10 years suspended, the written judgment reflects a sentence of 30 years plus 10 years to be served consecutively and

w ith no portion of either s entence suspended. Garland asserts , therefore, that the District Court erred in denying his petition and that we should vacate his sentence and remand the case for resentencing to refle ct what Garland claims was the orally pronounced

(and legally effective) sentence of 40 years with 10years suspended
. ¶13 We note that at the time Garland was sentenced, our cases held that the oral pronouncement of sentence was not the final judgment and the court could change the sentence prior to entry of the written judgment. Seee .g. State v. Enfinger , 222 Mont. 438, 444, 722 P.2d 1170, 1174 (1986); State v. Wirtala , 231 Mont. 264, 270, 752 P.2d 177, 181 (1988). Garland, however, relies on Lane , a cas e decided nearly four years afte r his c onviction and sentencing, f or the proposition that the oral pronouncement of sentence is the legally effective sentence. G arland apparentlya ssumes that Laneapplies retroactively to his sentence. W e need not decidethat question, however, because we7

conclude that Garland’s a ssertion that theo ral and written sentences conflict is factually incorrect
. ¶14 As discussed above, Judge McCarter initially imposed a sentence of 30 years fo r mitigated deliberate homicide plus 1 0 y ears for use of a dangerous weaponat the April 26, 1994 sentencing hearing
. She did not saythat any portion of this sentence was to be suspended. The c ountyattorney then reque sted that the court instead impose a 40
- year sentence with 10 years of th at suspended. The court agreed to do so but only “as long as that doesn’t make [Garland’s] p arole eligibility sooner.” This contin gencyw as stated explicitly and in Garland’s presence. ¶15 As it turned out, Judge McCarter subsequently determined , “upon furth er discussion with the attorneys,”that suspending a portion of Garland’s sentence would, in fact, makeh is parole eligibility sooner . Therefore, her written judgment reflects the original sentence pronounced at the hearing

— 30 years for mitigated d eliberate h omicide plus 1 0 years for u se of a d angerous w eapon in the c ommission of an o ffense , t o be served consecutivelyand with no portion of either sentence suspended
. Si mply stated, the contingencywas not satisfied and, thus, the original sentence remaine d effective. The written judgment accurately reflects this fact. Accordingly, we conclude that the District Court’s written judgment and commitment conforms to the court’s oral pronouncement of sentence
. CONCLUSION8

¶16 W e hold that the District Court did no t err in refusing to grant Garland’s Petition to Modify Defendant’s Written Judgment to Conform to the Courts’ Oral Pronouncement of Sentence
. ¶17 Affirmed
. /S/ JAMES C. NELSON
We Concur: /S/ KARLA M. GRAY /S/ JIM RICE /S/ PATRICIA COTTER /S/ B RIAN MORRIS