No 14778 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19 79 

GUADALUPE GRIFALDO , 

Petitioner, 

-vsSTATE OF MONTANA, 

Respondent. 

STEVEN R. VANDERBECK, 

Petitioner, 

STATE OF MONTANA, 

Respondent. 

ORIGINAL PROCEEDING: 

Counsel of Record: 

For Petitioner: 

Francis J. Conte, Missoula, Montana 

For Respondent : 

Mike Greely , Attorney General, Helena, Montana 

Harold Hanser, County Attorney, Billings, Montana 

Submitted on Briefs, June 15, 1979 

Decided: JU&- 1979 * ,279 

Filed: 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

These consolidated cases come before this Court on petition 

for postconviction relief. Petitioners Grifaldo and Vanderbeck 

each claim that he is entitled to designation as a "nondangerous 

offender for purposes of parole eligibility" under the mandatory 

provisions of section 95-2206.16(1), R.C.M. 1947, now section 

46-18-404(1) MCA. Designation as a nondangerous offender 

enables a prisoner to be eligible for parole after he has 

served one-quarter of his sentence. 

Grifaldo was charged with robbery, allegedly committed on 

August 20, 1977. Grifaldo pleaded guilty, and on October 27, 

1977, was sentenced by the Yellowstone County District Court 

to fifteen years in prison. Vanderbeck was convicted by jury 

verdict in the Yellowstone County District Court of aggravated 

assault and unlawful restraint, allegedly committed on June 

22, 1978. On November 1, 1978, Vanderbeck was sentenced to 

eight years for aggravated assault and six months for unlawful 

restraint, sentences to run concurrently. 

During the five years preceding commission of their 

offenses, neither Grifaldo nor Vanderbeck was convicted of, 

or incarcerated for, an offense for which a sentence in excess 

of one year could have been imposed. However, neither Grifaldo 

nor Vanderbeck was designated a nondangerous offender for 

purposes of parole eligibility. 

On March 2, 1979, at the request of the Montana Department 

of Institutions, the Montana Attorney General issued an opinion 

relating to parole eligibility of prisoners. 38 Atty. Gen. Op. 

No. 10. In pertinent part, the Attorney General held that a 

prisoner serving a time sentence who was not expressly designated 

"nondangerous" in connection with a crime committed after July 1, 

-2- 
1977, is ineligible for parole until he has served onehalf of his sentence, less good time. As a result, petitioners 

were classified as ineligible for parole until one-half of 

their sentences are served. 

Parole eligibility is governed by section 95-3214(1), 

R.C.M. 1947, now section 46-23-201(1) MCA, which provides: 

". . . Subject to the following restrictions, 

the board shall release on parole by appropriate 

order any person confined in the Montana state 

prison, except persons under sentence of death 

and persons serving sentences imposed under 

95-2206(3) (b), when in its opinion there is reasonable probability that the prisoner can be released 

without detriment to himself or to the community: 

"(a) No convict serving a time sentence may be 

paroled until he has served at least one-half 

of his full term, less the good time allowance 

provided for in 80-1905; except -- that a convict 

designated as a nondangerous offender under 

- 206.16' =be paroled atter he has served one- 

- -- quarter -------- of his full term, less the good time 

allowance wrovided --- for in 80-1905. Any offender 

serving a iime sentence may be paroledLafter he 

has served, upon his term of sentence, 17-1/2 

years. 

"(b) No convict serving a life sentence may be 

paroled until he has served 30 years, less the 

good time allowance provided for in 80-1905." 

(Emphasis added. ) 

Petitioners contend that they are entitled to designation 

as nondangerous offenders under section 95-2206.16(1), R.C.M. 

1947, now section 46-18-404(1) MCA, which provides: 

". . . The sentencing court -- shall designate an 

offender a nondangerous offender for purposes of 

eligibility for parole under 95-3214 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; - or 

" (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." (Emphasis 

added. ) 
The State concedes that under the mandatory language 

of the above statute petitioners are entitled to designation 

as nondangerous offenders. The State argues, however, that 

in declining to do so, the sentencing courts impliedly determined 

that each petitioner represented a "substantial danger to other 

persons or society" under subsection (b). The State therefore 

urges that we remand these cases to the sentencing courts for 

determination of whether each petitioners parole eligibility 

should be limited pursuant to section 95-2206(3)(b), R.C.M. 

1947, now section 46-18-202(2) MCA, up to one-half of their 

sentences. 

Section 95-2206(3)(b) permits the sentencing court to 

impose the restriction that a defendant be ineligible for 

parole for the full term of his sentence, not just half of 

it. It 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. ) 

Under this provision, the sentencing court "may" impose the 

restriction of parole ineligibility, but in so doing, it 

must ("shall") state reasons for the restriction in writing. 

We can no more adopt the implication urged by the State-- 

that failure or refusal to designate petitioners as nondangerous 

offenders constituted a determination of their dangerousness-- 

than we can imply that failure to invoke section 95-2206(3)(b) 

constituted a determination that restrictions on petitioners' 

parole eligibility were inappropriate. 
Section 95-2206.16(1), R.C.M. 1947, now section 

46-18-404(1) MCA, clearly provides that the sentencing 

court "shall" designate an offender a nondangerous offender 

if either of the conditions of subsection (a) "or" - (b) are 

met. This statute governed the District Court's conduct in 

sentencing petitioners Grifaldo and Vanderbeck. Both Grifaldo 

and Vanderbeck satisfied the condition specified in subsection 

(a), and therefore, the sentencing courts erred in failing 

to designate them as nondangerous offenders. 

The cases are remanded to the sentencing courts with 

directions to designate the petitioners as nondangerous 

offenders for purposes of parole eligibility. 

We Concur: 

Chief Justice 

r- \ 

Justices 

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