NO. 94-286

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

THE STATE OF MONTANA,

Plaintiff and Respondent,

-vJOHN JACOB LORENZ,

Defendant and Appellant.

APPEAL FROM: District Court of the Seventh Judicial District,

In and for the County of Richland,

The Honorable Richard G. Phillips, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

William Hooks, Helena, Montana

For Respondent:

Hon. Joseph P. Mazurek, Crew

Coughlin, Asistant

AttorneGyen~nxal,

Attorney

Montana; Gary Ryder, Deputy Richla'nd

Helena,

County

Attorney, Sidney, Montana

Submitted on Briefs: October 13, 1994

Decided: October 20, 1994

Clerk
Justice James C. Nelson delivered. the O'pinion of the Court.

This is an appeal from the entry of the statement of reasons

of the Seventh Judicial District Court supporting its prior

designation of John J. Lorenz (Lorenz) as a dangerous offender for

purposes of parole eligibility. We reverse and remand.

The sole issue on appeal is whether the District Court erred

in interpreting § 46-18-404(l), MCA, to require, as a matter of

law, that Lorenz be designated as a dangerous offender.

Lorenz, along with a codefendant, was tried and found guilty

by a Richland County jury of various felony sex offenses. On

appeal of his sentence, we reversed the designation of Lorenz as a

dangerous offender and remanded the case to the District Court "for

additional findings articulating its reasons for a dangerous or

nondangerous designation." State v. Wing and Lorenz (1994) _

Mont. _, P.2d __, 51 St. Rep. 223, 229.

The court did not hold an additional hearing, but, instead,

entered a "Statement of Reasons for Court's Designation." The

court stated that its "sole reason" for designating Lorenz as a

dangerous offender was its interpretation of 5 46-18-404, MCA, as

requiring such a designation.

Section 46-18-404(l), MCA, provides, in pertinent part:

[T]he sentencing court shall designate an offender a

nondangerous offender for purposes of eligibility for

parole under part 2 of chapter 23 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

2
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.

The District Court interpreted this statute as requiring a

dangerous designation unless the defendant can satisfy the

conditions of both (a) and (b)--i.e. that he not have been

convicted of nor incarcerated for any felony within the preceding

five years and that he does not represent a danger to other persons

or society. Since the court found that Lorenz had two prior felony

convictions within the last five years, it concluded that he must

be designated a dangerous offender as a matter of law. The court

did not make any finding concerning whether Lorenz represented a

substantial danger to other persons or society.

We review the District Court's conclusions of law to determine

whether its interpretation of the law was correct. State v.

Christensen (1994), _ Mont. -, ___P.2d _, 51 St. Rep. 542.

Here, we hold that the District Court incorrectly interpreted § 4G18-404(l), MCA.

Lorenz argues, and the State concedes, that our decision in

State v. Dahl (1980), 190 Mont. 207, 620 P.2d 361, is dispositive

of the issue raised in the instant appeal. In that case the

defendant had a prior felony within five years of the offense

involved in the appeal. The district court, concluding that it was

required to do so under the statute, designated Dahl as a dangerous

offender at sentencing. -...-.-, Dahl 620 P.2d at 364-65. We determined

3
that the district court erred and that, while not a model of

clarity, the statute is "mandatory only where the circumstances

require the sentencing court to sentence one as a nondangerous

offender." - , Dahl 620 P.2d at 365. We concluded that § 46-18-

404(l), MCA, "does not require the judge to designate one as

dangerous; rather, it sets forth the circumstances under which the

defendant must be designated as nondangerous." -(I Dahl 620 P.2d at

365.

Under the statute, as interpreted in m, if the defendant

satisfies both subsections (a) and (b) of 5 46-18-404(l), MCA, then

he & be designated as a nondangerous offender for parole

eligibility purposes. On the other hand, if the defendant

satisfies the prerequisites of only one of the subsections of § 46-

18-404(1) then the court may, in its discretion, designate the

defendant either dangerous or nondangerous. State v. Miller

(19881, 231 Mont. 497, 517, 757 P.2d 1275, 1287.

Here, the court erroneously concluded that it had no

discretion and that it was required to designate Lorenz a dangerous

offender as a matter of law. Accordingly, no inquiry was made nor

were any findings entered or reasons articulated as to whether

Lorenz represents a substantial danger to other persons or society.

Where the court refuses to exercise its discretion because it

erroneously concludes that, as a matter of law, it has none,

reversal and remand are required.

The District Court's designation of Lorenz as a dangerous

offender is, accordingly, reversed, and this case is remanded with

4
instructions that the court hold a hearing on whether Lorenz

represents a substantial danger to other persons or society under

5 46-18-404(1)(b), MCA. In addition to any presentence report and

the evidence at trial and sentencing hearing, the court shall

consider, along with the arguments of counsel, such additional

admissible evidence as the defendant and the State may wish to

offer. Thereafter the court shall enter its finding designating

Lorenz either dangerous or nondangerous for parole eligibility

purposes and shall articulate its reasons for such designation.

See, § 46-18-404(3), MCA; State v. Buckman (1989), 236 Mont. 37,

40, 768 P.2d 1361, 1363; and State v. Belmarez (1991), 248 Mont.

378, 381-82, 812 P.2d 341, 343-44.

REVERSED and REMANDED for further proceedings consistent with

this opinion.