NO. 95-231 INTHESUPREMECOURTOFTHESTATEOFMONTANA 1996

STATEOFMONTANA,

Plaintiff and Respondent,

v. ORINSCOTTHOFMAN,

Defendant andAppellant.

APPEAL FROM: District Court ofthe Twenty-First Judicial District,

In and for the County of Ravalli, The Honorable Jeffrey H. Langton, Judge presiding.

COUNSELOFRECORD:

For Appellant: John M. Kading, Butte, Montana For Respondent: Joseph P. Mazurek, Attorney General, Pamela P. Collins, Assistant Attorney General, Helena, Montana; George H. Corn, Ravalli County Attorney, F-x*?$ lton, Montana 'I<;;j ",*w>,~-I, h: Submitted onBriefs: December 7, 1995 Decided: March 28, 1996 Filed : ,,'.'i'

rii !S 1 i,'rEJustice William E. Hunt, Sr. delivered the Opinion of the Court

Appellant, Orin Scott Hofman, was sentenced by the TwentyFirst Judicial District Court, Ravalli County, for aggravated assault, felony assault, and two misdemeanors, with the sentences to run concurrently. In addition, the defendant wasdesignated as

apersistent felony offender andadangerous offender. Defendant appeals both his sentence and his designation as a dangerous offender. Affirmed. Onappeal, defendant raises four issues which werestate as follows : 1. Did the District Court err in designating Hofman a dangerous offender? 2. Did the District Court err in ordering Hofman to undergo alcohol treatment? 3. Did the District Court err in not stating the reasons why Hofman wasdesignated adangerous offender? 4. Did the District Court err byfailing to inform Hofman of the possible maximum penalties provided by law, including the effect of penalty enhancements and parole restrictions? FACTS Onthe night of December 12, 1993, officers responded to an emergency call at the home of defendant and Ms. Angela Raines. Earlier in the evening, defendant had been lying downonthe couch whenRaines' twoyoung sons ran toplay with him. Defendant struck the younger four-year old child and then attacked MS. Raines. 2Defendant left the homebut returned later. Whenhereturned, MS.

Raines refused to let him in. Defendant gained re-entry by breaking down the door, and, again, heattacked Ms. Raines. Officers responding to the call found Ms. Raines, who had a bloody nose, broken ribs, andmultiple contusions andher son, who hadaswollen cheek. Ms. Raines wastaken to the hospital. After returning home, shediscovered that $1,600 in cash wasmissing from her strongbox. Defendant was charged by information on December 22, 1993, with five felonies and two misdemeanors: Charge I, aggravated assault; Charge II, two counts of felony assault; Charge III, misdemeanor assault; Charge IV, aggravated burglary; Charge V, burglary; Charge VI, felony theft, and Charge VII, criminal mischief. Defendant entered a"not guilty plea" to all charges. On the same day, defendant signed a "Acknowledgment of Rights" form which was filed with the District Court. OnJanuary 12, 1994, defendant requested to withdraw his "not guilty" pleas pursuant to aplea arrangement with the State. On January 19, 1994, defendant entered aguilty plea to the charges of aggravated assault, felony and misdemeanor assault, and criminal mischief. The remaining charges were dismissed. Defendant was sentenced onFebruary 16, 1994, to 20years for aggravated assault, 5years for felony assault, 6months for misdemeanor assault, and 6months for misdemeanor criminal mischief. The District Court designated defendant apersistent felony offender, as well as a dangerous offender. Defendant appeals.

3ISSUE 1

Did the District Court err in designating Hofman as a dangerous offender? Defendant argues the record does not contain substantial credible evidence to support his designation as a dangerous offender. Hecontends this designation should be removed as a matter of law, and that heshould bedesignated asanondangerous offender pursuant to §46-18-404, MCA(1993)(repealed). Thescope of our review onappeal is limited to those issues raised before the District Court. Section 46-20-104, MCA. A defendant's failure to object to an issue at the District Court bars the defendant from raising the issue onappeal. Sections 46- 20-104 and 46-20-701, MCA; State v. Arlington (1994), 265 Mont. 127, 151, 875 P.2d 307, 321. At the sentencing hearing, the County Attorney recommended to the court that defendant bedesignated adangerous offender. At the conclusion of the hearing the Judge gaveparties anopportunity to add anything to the record but there was nothing further from anyone. Defendant did not object to his designation asadangerous offender. Inorder to preserve this issue onappeal, defendant had to object to this designation during the sentencing hearing. Section 46-20-104 (2), FICA;State v. Nelson (Mont. 1995), 52St.Rep 1069, 1072, 906 P.2d 663, 667. Weconclude that defendant is barred from raising the issue of his designation asadangerous offender onappeal.ISSUE 2

Did the District Court err in ordering Hofman to undergo alcohol treatment? As in Issue 1, defendant failed to preserve this issue for appeal by failing to object at the time he was sentenced. On appeal, defendant does not assert anerror that is prejudicial as to guilt or punishment and therefore he fails to meet the requirements of §46-20-701, MCA. This Court will not consider this issue further. ISSUE 3 Did the District Court err in not stating the reasons why Hofman had been designated adangerous offender? Defendant alleges that his prior record, coupled with this offense and his apparent lack of rehabilitation, does not merit designation as adangerous offender. Defendant further alleges that the record lacks the required "articulated reasons" for this designation. State v. Ford (1985), 218 Mont. 215, 221, 707 P.Zd 16, 20. Uponreview of the record, weconclude there is ample evidence supporting the designation. At the sentencing hearing, priox to designating defendant asadangerous offender, the District Court stated its reasons for the sentence. The Judge referred to defendant's propensity for violence. Insupport of this, the court pointed out that Ms. Raines' injuries were extensive, that defendant hadassaulted afour-year old boy, andthat defendant had previously assaulted his mother. The court pointed out that

5defendant had been given multiple opportunities in the past to

"straighten himself out...none of [which] seem to have taken." These reasons were again set forth in the judgment issued on February 25, 1994. The record shows that the District Court stated its reasons for the defendant's designation asadangerous offender. Weaffirm the District Court onthis issue. ISSUE 4 Did the District Court err byfailing to inform Hofman of the possible maximum penalties provided bylaw, including the effect of the penalty enhancements andparole restrictions? As stated in Issue 1, the scope of our review on appeal is limited to those issues raised before the District Court and a defendant's failure to object to an issue at the District Court bars him from raising the issue onappeal. Nelson, 906P.2d at 667 (citing Arlington, 875P.2d at 321). Defendant alleges hewasnot advised of the maximums penalties provided by law. Defendant contends that nowhere in the record does the District Judge inform him of the possibility of enhancement for apersistent felony offender or the implications of being designated a dangerous offender. The defendant's failure to raise this issue at the District Court bywayof amotion to withdraw his guilty plea bars him from raising the issue on appeal. As in Issues 1and 2, defendant failed topreserve this issue for appeal. See, Nelson, 906P.2d at

6665-66; state v. Enoch (19941, 269 Mont. 8, 11-12, 887 P.2d 175,

177.

we conclude the defendant was properly advised of the

consequences of pleading guilty. Affirmed.

7