NO. 85-425 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsDAN NICHOLS, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Madison, 

The Honorable Frank Davis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Ungar Law Office; Steven B. Ungar argued, Bozeman, 

Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Judy Browning argued, Asst. Attorney General, Helena 

Marc Racicot, County Prosecutor, Helena, Montana 

-- - -- 

submitted: March 10, 1986 

Decided: June 12, 1986 

Filed: L 2 1986 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

Defendant Nichols appeals the sentence imposed by the 

District Court, Fifth Judicial District, after his conviction 

on charges of felony kidnapping and misdemeanor assault. The 

District Court sentenced Nichols to: 

1. Ten years at the State Prison for felony kidnapping; 

2. Six months at the State Prison for misdemeanor 

assault; 

3. Ten years at the State Prison for use of a firearm 

while engaged in the commission of felony kidnapping (all 

sentences to be served consecutively). 

The District Court further designated the 

defendant-appellant a dangerous offender for the purpose of 

parole eligibility pursuant to 46-18-404, MCA. In 

addition, the District Court strongly recommended, "that the 

Warden of the Montana State Prison, when and if he determines 

it to be a proper case therefor, transfer the defendant to 

the Swan River Forest Youth Camp to serve the sentence herein 

imposed. " 

Appellant presents a number of issues for our review: 

1. Whether $ 46-18-404(l) (b) , MCA, which empowers a 

district judge to designate a convicted defendant as a 

dangerous offender, if he represents a "substantial danger to 

other persons or society," violates the Federal or Montana 

Constitutions because it offends due process of law by: 

(a) not requiring tha-t the defendant receive notice 

that the State will seek the application of dangerous 

offender designation, and the factual basis of the State's 

request for that designation, and 
(b) by containing a standard so vague as to allow 

arbitrary exercise of judicial power. 

2. Whether the District Court abused its discretion in 

imposing sentence: 

(a) by designating Nichols a dangerous offender; 

(b) by enhancing Nichols ' sentence for kidnapping 

because a weapon was used in the commission of the crime, 

because it found the exceptions to the enhancement statute 

did not apply; 

(c) by what Nichols claims amounts to sentencing him 

for the crime of deliberate homicide, despite his acquittal 

of that offense; and 

(d) by imposing a sentence which is internally 

inconsistent and against the weight of substantial and 

credible evidence? 

We affirm the District Court. 

This appeal arises from an ill-conceived plan of the 

appellant and his father to secure a woman to augment their 

lives as self-professed "mountain men." On July 15, 1985 

they put their plan into action. The appellant Dan Nichols 

and his father, Don Nichols, abducted Kari Swenson as she 

jogged around a lake in the mountains near Big Sky, Montana. 

After they tied her wrist to Dan's they proceeded deeper into 

the mountains. After traveling for awhile they decided to 

make camp. Kari, still tied wrist-to-wrist to the defendant, 

was taken to a tree where a chain was placed around her waist 

and then around the tree and fastened with a padlock. Kari 

testified that she had trouble moving. Later they moved Kari 

to another location nearby that had been prepared as a 

sleeping area. She was taken there with one end of the chain 

around her waist. When they got there they chained the other 

end around a tree and gave her a sleeping bag. She was 

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unable to get all the way into the sleeping bag because of 

the chain. She testified that she did not sleep that night. 

The next morning while the father was out of the camp on 

an errand, Kari begged the defendant to let her go but he 

told her, "No, I want to keep you. You're pretty." She 

testified that she was crying and close to hysterics and 

asked him six or seven times to let her go but he refused. 

The next morning Alan Goldstein, a friend of Kari's who 

had been looking for her, entered the camp. The appellant 

raised his pistol and pointed it in Goldstein's direction. 

Then he heard sounds behind him of Jim Schwalbe, another 

searcher, entering the camp. As appellant turned toward the 

sounds his gun discharged, seriously wounding Kari beneath 

her right shoulder. While Schwalbe attempted to aid Kari, 

Goldstein who had withdrawn from the camp, re-entered 

exclaiming, "You're surrounded! You might as well give up." 

The appellant's father said they would not give up. He moved 

from behind a tree, raised his rifle and from twenty feet 

away fatally shot Alan Goldstein. Schwalbe called 

Goldstein's name and ran to him. He then made his escape. 

After wounding Kari, Dan Nichols did not further 

participate in the events until Goldstein lay dead at the 

scene. Then he and his father quickly prepared to break camp 

by packing their equipment to leave the area. Kari testified 

that she was getting cold but despite her pleas to keep the 

sleeping bag they had given her "they just kind of picked up 

the end and flopped" her on the ground, took the sleeping bag 

and left. She did not see them again until the trial. 

After they ha.d gone, Kari tried to crawl over to where 

Goldstein was but only made it as far as the campfire. She 

tried to start it by adding small sticks and blowing on it 

but was not successful because of difficulty breathing. She 

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began to get sore and numb. When she tried to move there was 

a sucking sound from the wound in her chest. She was getting 

very cold and tried to crawl on her hands and knees to see if 

she could find something to cover herself with, but was only 

able to crawl on her stomach a short distance at a time. She 

did manage to crawl over to a backpack that Jim Schwalbe had 

dropped. She got into a sleeping bag that she found there. 

Later she again tried to crawl over to where Goldstein was 

but could not do so because of her weakening condition. She 

crawled back into the sleeping bag. She forced herself to 

stay awake because she feared losing consciousness would lead 

to her death. She was finally rescued later that day. 

Appellant and. his father were apprehended December 13, 

1985, and charged with deliberate homicide, aggravated 

kidnapping, assault and intimidation. Separate trials were 

ordered. Appellant was tried before a jury in the Fifth 

Judicial District, the Honorable Frank M. Davis, presiding. 

During the trial, much evidence was produced concerning 

Donald Nichols' influence over his son Dan. Both the defense 

and the prosecution introduced exhaustive lay and expert 

testimony concerning Dan's mental state and mental health. 

The verdict returned by the jury on May 13, 1985 found 

appellant guilty of felony kidnapping and misdemeanor assault 

and not guilty of deliberate homicide. On May 18, 1985 the 

District Court released the appellant on a $35,000 property 

bond. The court set a sentencing hearing for July 19, 1985. 

Prior to the hearing the prosecuting attorney sent the 

defense attorney a letter dated May 24, 1985, which served as 

notice of the State's intentions at sentencing. 

For sentencing purposes the parties agreed to avoid 

additional cost by stipulating to use the psychological 

testimony presented at trial. In addition, they filed 

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sentence recommendations, a presentence investigation report, 

and other documents. All this material was available to both 

sides. 

During the sentencing the defense presented testimony by 

Dan Nichols. The State presented the testimony of Kari 

Swenson. This was followed by closing remarks and 

pronouncement by the court of the sentence described above. 

Issue I: Due Process 

A. Notice 

Appellant first challenges S 46-18-404, MCA, as 

containing two violations of the due process guaranties of 

both the United States and the Montana Constitution. First, 

he argues the statute fails to require that the defendant 

receive notice prior to the sentencing hearing that the State 

will seek to designate the defendant as a dangerous offender 

under the statute. 

Section 46-18-404, MCA, provides in relevant part: 

(1) The 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 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 present a substantial danger to 

other persons in society.. . . 

(3) if the court determines that an offender is 

not eligible to be designated as a nondangerous 

offender, it shall make that determination a part 

of the sentence imposed and shall state the 

determination in the judgment. Whenever the 

sentence and judgment does not contain such a 

determination, the offender is considered to have 

been designated as a nondangerous offender for 

purposes of eligibility of parole. 
The practical effect of a dangerous offender designation is 

to deny the defendant parole eligibility until he or she has 

served one-half of the sentence imposed. Section 46-23-216, 

MCA. Cavanaugh v. Crist (Mont. 1983), 615 P.2d 890, 892, 37 

St.Rep. 1461, 1463. Because of the length of the sentence 

imposed in this case, 20 years and 6 months, this limitation 

on parole eligibility also precludes appellant's transfer to 

Swan River Youth Camp for ten years, less "good time" credits 

earned. 

Due process requires that a defendant's liberty 

interest, and risk of unjust deprivation of that liberty 

interest, be balanced against the State's interest in 

protecting the community. Greenholtz v. Nebraska Penal 

Inmates (1979), 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668. 

It is clear that a convicted defendant's liberty 

interest at sentencing does not rise to the level of an 

accused's liberty interest at trial. Williams v. New York 

(1949), 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed.2d 1337. 

However, "it is also true the rights of the [defendant] must 

be protected. Due process must be observed in [sentencing] 

hearings . . . " State v. Harney (Mont. 1972), 499 P.2d 802, 

805-806, 160 St.Rep. 55, 62. 

Appellant argues that Montana's statutory structure, 

under which the sentencing is carried out, indicates the 

nature and weight of a defendant's liberty interest in 

parole. Section 46-18-404 (1) , MCA, states, "The sentencing 

court shall designate an offender a nondangerous offender for 

purposes of eligibility for parole . . . - if: . . .. 11 

(Emphasis added.) The statute then goes on to list the 

substantive basis for a nondangerous designation and requires 

the court to include its determination within the judgment. 
Appellant contends this mandatory language, substantive 

conditions, and accompanying formal procedural requirements 

are similar to the statutes reviewed by the United States 

Supreme Court in Greenholtz v. Nebraska penal Inmates (1979), 

442 U.S. 1, 99 S.Ct.' 2100, 60 L.Ed.2d 668, and ~ewitt v. 

Helms (1983), 459 U.S. 460, 103 S.Ct. 864, 72 ~.~d.2d 675. 

The statute in Greenholtz required that the Board of 

Parole shall order the release of a prisoner eligible for 

parole, unless one of four listed substantive provisions 

applied. In commenting on the nature of the liberty interest 

the Court noted: 

Respondents emphasize that the structure of the 

provision together with the use of the word "shall1' 

binds the Board of Parole to release an inmate 

unless any one of the four specifically designated 

reasons are found. In their view, the statute 

creates a presumption that parole release will be 

granted, and that this in turn creates a legitimate 

expectation of release absent the requisite finding 

that one of the justifications for deferral exists. 

We can accept respondents1 view that the expectancy 

of release provided in this statute is entitled to 

some measure of constitutional protection. 

(Citations omitted.) 

442 U.S. at 11-12, 99 S.Ct. 2100, 2106, 60 L.Ed.2d 667, 678. 

Appellant also cites Hewitt v. Helms, wherein the Court 

reviewed Pennsylvania statutes to determine the nature of the 

liberty interest involved in avoiding more restrictive 

confinement than normal prison confinement: 

[Wle are persuaded that the repeated use of 

explicitly mandatory language in connection with 

requiring specific substantive predicates demands a 

conclusion that the State has created a protected 

liberty interest. 

Hewitt v. Helms (1983), 459 U.S. 460 at 472, 103 s.Ct. 864, 

The State responds that due process requirements at the 

sentencing stage differ from those at trial and pretrial 
stages. Williams v. New York (1949), 337 U.S. 241, 69 S.Ct. 

1079, 93 L.Ed.2d 1337. Traditionally, courts have "very 

broad judicial discretion" in sentencing because sentencing 

is less encumbered by procedural formality. Cavanaugh v. 

Crist (Mont. 1983), 615 P.2d 890, 894, 37 St.Rep. 1461, 1464. 

In Cavanaugh, this Court considered a similar notice 

challenge to S 46-18-202(2), MCA. That statute allows the 

sentencing court to completely restrict a defendant's parole 

eligibility. This Court upheld the statute, remarking, 

The restriction of parole and furlough program 

eligibility [contained in S 46-18-202(2)] is "a 

part of the sentence" by the express terms of the 

statute and does not involve any proceeding except 

the ordinary sentencing proceeding. It represents 

one option, among others, that the legislature has 

made available to district judges in the course of 

ordinary sentencing. The full restriction on 

parole and furlough eligibility permitted by 

section 46-18-202(2) has no existence apart from 

the sentence imposed for the underlying offense. 

Cavanaugh, (Mont 1983), 615 P.2d at 893, 37 St.Rep. at 

1463-64. 

The State correctly characterizes the holding of 

Cavanaugh. However, that holding pertains to the procedure 

due, not to the nature of the interest implicated. We did 

not directly address the nature of the interest implicated in 

Cavanaugh, but we clarify that now. The language of 5 

46-18-202, MCA, is discretionary. Therefore it cannot be 

read to create any more specific liberty interest than that 

already inherent in a sentencing proceeding. 

The language of 5 46-18-404, MCA, is mandatory. This 

presents a different situation. It can be read to create a 

liberty interest, in that it limits a sentencing court's 

discretion by requiring the court to designate a defendant as 

a nondangerous offender if the substantive provisions are 

met. There is no constitutional right to parole. Yet, 9 

46-18-404, MCA, when fairly read in conjunction with S 
46-23-216, MCA, indicates a legislatively created interest in 

being designated a nondangerous offender. 

However, because the statute lays out the substantive 

criteria upon which such a designation must be based, no 

notice other than notice of the sentencing hearing itself is 

needed to comport with due process. Appellant has cited us 

to cases wherein courts have held that the defendant must 

have notice of the charge and the factual basis upon which 

the charge is based. However, these cases all involve 

proceedings apart from the sentencing hearing itself. Hewitt 

v. Helms (1983), 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 

(administrative confinement of convicted prisoner) ; New 

Jersey Parole Board v. Byrne (N.J. 1983), 460 A.2d 103 

(parole hearing subsequent to incarceration). Because each 

of these hearings focuses on one matter, notice must be 

separate in each matter. A sentencing hearing, unlike those 

discrete proceedings, requires that many determinations be 

made. The statutes governing sentencing provide ample notice 

of matters which may come up. These, along with notice of 

the date of hearing, the full disclosure of presentencing 

information in open court; the ability of the defendant to 

propound evidence, to confront witnesses, and to participate 

in the sentencing proceeding provide a full panoply of due 

process safeguards for the liberty interest implicated. - See, 

State v. Redding (Mont. 1984), 675 P.2d 974, 41 St.Rep. 147; 

Cavanaugh v. Crist (1983), 615 P.2d at 893, 37 St.Rep. at 

1463. 

B. Vagueness. 

In order to apply the dangerous offender designation the 

District Court must find that the defendant poses a 

"substantial danger to other persons or society," 5 

46-18-404 (1) (b) , MCA. Appellant notes that the term 

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"substantial danger" is not defined in Title 46, or anywhere 

in the criminal code. Appellant contends that "substantial 

danger is a term of [so] loose and uncertain meaning," 

Wilding v. Norton (Cal. 1958), 319 P.2d 440, that a court's 

discretion in defining the term is unfettered. Statutes 

which allow arbitrary or discriminatory application of the 

law offend due process. 

Appellant argues that state courts have split over the 

definition of "dangerous, " and therefore provide no 

persuasive authority for a district court to adopt. 

Furthermore, because § 46-18-404, MCA, is void of legislative 

history, the District Court can find no guidance there. In 

response the State cites a multitude of cases upholding 

similar statutes despite vagueness challenges. 

We note that arguments similar to those made by the 

appellant were rejected by the Third Circuit Court of Appeals 

in construing the term "dangerous" in 18 U.S.C. 3575 (f) , the 

federal dangerous offender statute. United States v. Davis 

(3rd Cir. 1983) , 710 F.2d 104. Indeed many other Courts of 

Appeals have upheld this statute. - See United States v. 

Stewart (6th Cir. 1975), 531 F.2d 326, 336-37, cert. denied, 

426 U.S. 922 (1976); United States v. Bowdach (5th Cir. 

1977), 561 F.2d 1160, 1175; United States v. Neary (7th Cir. 

1977), 552 F.2d 1184, 1194, cert. denied, 424 U.S. 864 

(1977) ; United States v. Warme (2d Cir. 1978), 572 F.2d 57, 

62, cert. denied, 435 U.S. 1011, 439 U.S. 981 (1978) ; United 

States v. Cox (8th Cir. 1983) , 719 F.2d 285, cert. denied, 

104 S.Ct. 1714 (1984). 

We hold that 5 46-18-404(1) (b), MCA, is sufficiently 

clear to guide the district courts in designating dangerous 

offenders and does not violate defendant's right to due 

process. 
Issue 11: Discretion of the District Court 

A. Dangerous Offender Designation. 

The appellant contends the District Court abused its 

discretion in designating him a dangerous offender. In 

support of this contention, appellant notes that the District 

Court released Nichols on bail after conviction and prior to 

sentencing. This, argues a.ppellant, was an implicit finding 

that he was not dangerous to society. - Cf. French v. Crist 

(Mont. 1974) , 518 P. 2d 35. This Court has held that after 

placing a defendant on probation and suspending the 

defendant's sentence, a district court could not then later 

designate the defendant as a dangerous offender when his 

probation was revoked. Smith v. State (1980), 187 Mont. 225, 

226-227, 606 P.2d 153 at 155. Furthermore, appellant notes 

that there was no evidence in the record indicating he posed 

a future threat. Next appellant argues that the court's 

finding of fact no. 10 explicitly reveals the court relied on 

matters precluded from consideration by S 46-18-404(2) (a), 

MCA: that is, past juvenile convictions. That finding 

includes determinations that the defendant had committed 

burgary and was a drug abuser. Appellant strongly argues 

that there is no evidence in the record to support those 

determinations. 

Lastly, the appellant contends that the district judge 

impermissibly designated him a dangerous offender because the 

judge did not like appellant's demeanor. Matter of McFadden 

(Mont. 1980), 605 P.2d 599. The findings of fact and 

conclusions of law which were filed in August, appear to the 

appellant as a post hoc rationale for the dangerous offender 

designation and do not comply with the requirement that the 

court articulate the reasons for the designation at the time 
of judgment. State v. Stumpf (Mont. 1980), 609 P.2d 298, 

This Court notes that the factual basis of finding no. 

10 is in the record. The Court may consider persistence in 

criminal conduct and failure of earlier discipline to deter 

or reform the defendant. State v. Maldonado (1978), 176 

Mont. 322, 330, 578 P.2d 296, 301. The holding in Smith v. 

State (Mont. 1980) , 606 P. 2d 153, does not apply because in 

that case the defendant had previously been sentenced without 

being designated as dangerous. Furthermore, § 46-18-404 (a) , 

MCA, does not prohibit evidence of juvenile offense, except 

where the defendant was less than 18 at the time the 

currently charged offense was committed. Nichols was 19 at 

the time of the kidnapping. Finally, there is no 

inconsistency between releasing the defendant on bail after 

conviction and later designating him as a dangerous offender. 

The judge properly considered matters arising between 

conviction and sentencing in determining the designation. 

Therefore we hold the District Court did not abuse its 

discretion in designating the appellant as a dangerous 

offender. 

B. Enhancement. 

Appellant argues that the statutory exceptions to the 

statute which allows the sentencing court to enhance a 

defendant's sentence when the offense was committed with a 

dangerous weapon, apply in this case. The statutes in 

question provide, in relevant part: 

Section 46-18-221, MCA. Additional sentence for 

offenses committed -- with a danqerous weapon. (1)A 

person who has been found guilty of any offense and 

who, while engaged in the commission of the 

offense, knowingly displayed, brandished, or 

otherwise used a firearm,. . . shall, in addition 

to the punishment provided for the commission of 

such offense, be sentenced to a term of 

imprisonment in the state prison of not less than 
two years or more than ten years, except 

as provided - in 46-18-222. (Emphasis added.) 

Section 46-18-222, MCA. Mandatory minimum 

sentences - and restrictions on deferred imposition 

- and suspended execution of sentence. All mandatory 

minimum sentences prescribed by the laws of this 

state and the restrictions on deferred imposition 

and suspended execution of sentence . . . do not 

apply if: 

(2) the defendant's mental capacity, at the time 

of the commission of the offense for which he is to 

be sentenced, was significantly impaired, although 

not so impaired as to constitute a defense to the 

prosecution; 

(3) the defendant, at the time of the commission 

of the offense for which he is to be sentenced, was 

acting under unusual and substantial duress, though 

not such duress as would constitute a defense to 

the prosecution. 

Appellant contends he meets both of the exceptions laid 

out in S 46-18-222(l) and (2), MCA. He argues that the 

evidence introduced at trial, and stipulated for use at 

sentencing, conclusively proves that his mental capacity was 

significantly impaired and that he was acting under unusual 

and substantial stress. Appellant cites statements by all 

three mental health experts for support. 

However, we find we do not need to reach the question of 

the sufficiency of the evidence. Section 46-18-222, MCA, 

does not apply in this case. Judge Davis did not pronounce a 

minimum sentence. Section 46-18-222, MCA, does not apply in 

cases where the maximum sentence is imposed. A careful 

reading of the statute and this Court's holding in State v. 

Stroud (Mont. 1984), 683 P.2d 459, 469, 41 St.Rep. 919, 931, 

indicates that the purpose of the statute is to allow a judge 

who would otherwise have to pronounce the minimum sentence, 

to sentence a defendant to less than the minimum sentence 

when the exceptions apply to the facts. 
C. Sentencina for Homicide. 

Comments made by the sentencing judge, as well as the 

fact that the absolute maximum sentence in every respect was 

imposed, causes the appellant to argue that the judge abused 

his discretion. Despite the jury's verdict of not guilty of 

homicide, the judge stated, "The defendant in my judgment is 

morally if not equally legally responsible for the death of 

A1 Goldstein and I can't sentence him for that." Appellant 

contends this comment indicated the judge's complete 

disagreement with the jury verdict. The appellant argues 

that the jury's role as fact finder is the cornerstone of the 

American justice system and cannot be disregarded. Appellant 

cites a similar case, Commonwealth v. Sypin (Pa. Super. 

1985), 491 A.2d 1371 where the sentencing court below had 

remarked "And [disappeared children's] problems result from 

men like you." The Appeals Court vacated the sentence and 

remanded because "Appellant was not charged in connection 

with the disappearance or death of any child." Sypin, 491 

A.2d at 1372. 

The State responds, and we agree, that the District 

Judge acknowledged "and I can't sentence him for that." It 

is therefore obvious from the record that the judge did not 

base the sentence on the homicide charge. State v. Olsen 

(Mont. 1380), 614 P.2d 1061, 1064. We hold there was no 

abuse of discretion in this regard. 

D. Consistency with the Evidence. 

Appellant contends that the dangerous offender 

designation effectively puts appellant's parole eligibility 

beyond the time which would allow him to serve his sentence 

at Swan River. Appellant contends all the mental health 

experts recommended Swan River so he could continue his 
rehabilitation through counseling. This, insists the 

appellant, ignores the rehabilitative policy of this State. 

We can find no inconsistency. Clearly the District 

Court recognized the appellant's need for counseling, but 

considered that the other factors required the sentence 

given. The District Court left the determination of when the 

appellant should be transferred to Swan River in the hands of 

the Warden of the State Prison. This does not ignore the 

rehabilitative policy of this State. 

The sentence of the District Court is affirmed in all 

respects.