NO. 95-105 IN THESUPREMECOURTOFTHE 1995 STATE OFMONTANA

THESTATE OFMONTANA,

Plaintiff/Respondent,
-vRONALDEVANS, Defendant/Appellant.

APPEAL FROM: District Court of the Second Judicial District,

In and for the County of Silver bow, The Honorable James E. Purcell, Judge presiding.

COUNSELOFRECORD:

For Appellant: Jeffrey T. Rem, Montana Defender Project, Univeristy of Montana, School of Law, Missoula, Montana For Respondent: Hon. Joseph P. Mazurek, Attorney General, Crew Coughlin, Assistant Attorney General, Helena, Montana; Robert McCarthy, Silver Bow County Attorney, Brad Newman, Deputy Silver Bow County Attorney, Butte, Montana

Filed: Submitted onBriefs: May 11, 1995 Decided: July 13, 1995Justice Fred J. Weber delivered the Opinion of the Court.

This is anappeal from adesignation asdangerous offender by the Second Judicial District Court, Silver BowCounty. Weremand
so the court can articulate its reasons for entering this designation. The following issues are dispositive of the case: I. Did the District Court err in relying upon the evidence found in the case record for its designation of dangerous offender? II. Did the District Court err in failing to articulate its
reasons for designating Evans adangerous offender? OnAugust 30, 1994, avehicle driven by Ronald Evans (Evans) veered into the on-coming lane and collided head onwith another vehicle driven by Sonnie Holm (Helm). Helm and another adult passenger were seriously injured. The passenger's five month old baby sustained serious head injuries and eventually died as a consequence of the accident. Evans, whose blood alcohol was .164 an hour after the accident, was charged with one count of negligent vehicular homicide, afelony and two counts of negligent vehicular assault,
amisdemeanor. Evans initially pled not guilty, but later changed his plea to guilty pursuant to anagreement with the State. Evans was freed on bond, but following a disturbance in a vacant lot in Butte, Evans wascharged with disorderly conduct and his bond was revoked. Hewas remanded to the county jail. OnNovember 21, 1994, the District Court sentenced Evans to ten years onthe negligent homicide count and six months on each 2count of negligent vehicular assault, all time to run concurrently.

Evans wasalso ordered to pay $1,000 fine and $10,000 restitution. Evans was remanded to the custody of the Department of Corrections with a recommendation that he be placed at the Montana State Prison. The court also designated Evans adangerous offender for purposes of parole eligibility. Evans filed his appeal on January 12, 1995, appealing his dangerous offender designation. I. Did the District Court err in relying upon the evidence found in the case record for its designation of dangerous offender? Appellant argues that the record does not contain sufficient evidence that he is adangerous offender. The State disagrees.

Under § 46-18-404, MCA, 'Ian designated adangerous offender, if, individual may be in the discretion of the sentencing court, he is determined to represent a substantial danger to other persons or society; however, more than amere recital of the statutory language is required.

. .'I [citations omitted.1 Our review of the record here indicates that the District Court failed to articulate its reasons for the dangerous offender designation.

. . Where the record below reveals substantial evidence to support a sentencing court's determination that an offender is dangerous, this Court has remanded the cause to the district judge for findings to support such a conclusion. State v. Belmarez (1991), 248Mont. 378, 381, 812P.2d 341, 342-43. The record here indicates that Evans has a dismal and extensive juvenile criminal record. At the time of sentencing Evans was 18 years of age and had already been involved in a negligent vehicular homicide. The felony occurred because Evans
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### wasintoxicated while driving andswerved into the oncoming lane of

traffic.Further, the record indicates that while out of jail onbail bond during the vehicular homicide proceedings, he was again arrested for disorderly conduct andresisting arrest. Thecourt indicated that Evanswas"incorrigible" andthe record bears this out. Further, the record also reflects that hehasnot sought help with his drinking problem, but continues to drink without considering the consequences of his actions. Nor does he show
remorse for the lives that henegatively impacts. Thesefacts are contained in the record andthe court should havenoted them, all
or in part, for its determination that herepresented adanger to society. Wehold that the record contains substantial evidence from which the District Court could havedrawnsupport for its dangerous offender designation. II. Did the District Court err in failing to articulate its
reasons for designating Evansadangerous offender? Evansargues onappeal that the court did not articulate the
reasons that it found himtobeadangerous offender. According to Evans, the court hadto specifically state whyit found himto be
adanger to society andcould not just mimic the wording of §46- 18-404(l) (b), MCA. The State argues that the court's statements were adequate according to the statute andour case law.
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### Section 46-18-404(l), MCA,states in pertinent part:

(1)

. . . ET1

### hesentencing court shall designate an offender a nondangerous offender for purposes of eligibility for parole under part 2of chapter 23if: (a) during the 5years preceding the commission of the offense for which the offender is being sentenced, the offender wasneither convicted ofnor incarcerated for an offense committed inthis state oranyother jurisdiction for which asentence to aterm of imprisonment in excess of 1year could havebeenimposed; and (b) the court hasdetermined, based onanypresentence report andthe evidence presented at the trial andthe sentencing hearing, that the offender doesnot represent asubstantial danger to other persons or society. This statute governs the designation of both nondangerous and dangerous offenders. State v.Wing (1994), 264Mont. 215, 870P.2d 1368.In making adangerous designation, the court should consider the defendant's persistence in criminal conduct, the defendant's failure with earlier discipline to deter or reform himandwhether the defendant is asubstantial danger to others or society. State
v. Nichols (1986), 222 Mont. 71, 720 P.2d 1157. Also to be considered is the vicious nature of the crime engaged in. Belmarez, 248Mont. at 382, 812P.2d at 343. In making the dangerous offender designation, the district courts must articulate their reasons for imposing a dangerous designation; amererecital of the statutory language will not be sufficient because wecannot review the court's discretion based uponamererepetition of the statutory directives. Belmarez, 248 Mont. at 381, 812P.2d at 343. Whenacourt fails to state its specific reasons and substantial evidence exists for such a finding, wewill remandthe caseinorder that the court follow the
5proper procedure. Belmarez, 248 Mont. at 381, 812 P.2d at 343.

Here, the court made the following conclusions in its judgment: That Defendant Ronald Evans is adangerous offender and is currently athreat to society and confinement in the Montana State Prison in Deer Lodge, Montana is necessary and appropriate for the protection of society and particularly the rehabilitation of the Defendant. That the Defendant Ronald Evans has been sentenced to Montana State Prison after this Court has fully considered the gravity of the offenses, the punishment permitted by law, the deterrent effect on others, the protection of society while the Defendant is incarcerated, andthe possibilities, or lack thereof, of rehabilitation of this Defendant and the Pre-Sentence Report. The Court has also considered the Motive of the Defendant in committing the crime, his lack of cooperation with officials andmitigating circumstances. The age of the Defendant and the Defendant's prior criminal record, including his juvenile record, were also taken into consideration along with the Defendant's lifestyle and his lack of significant goals or work history. This is merely repetition of the elements as stated in statutory directives and case law. It is not sufficient. The State argues that this case is analogous to State v. Buckman (1989), 236Mont. 37, 768P.2d 1361. There, the court gave the following reasons for making the dangerous offender designation: The defendant, since hewas 18years old, has been involved with the criminal law. In 1979, hewasgiven a three (3) year deferred sentence for auto theft. In 1980, hewas convicted, byajury, of Aggravated Assault and Aggravated Kidnapping, felonies, and was given two ten (10) year terms which ran concurrently and was designated aDangerous offender. Hewas released from the Montana State Prison in February, 1987 andcommitted the crime of Deceptive Practices, afelony, by stealing and using stolen credit cards. Thedefendant hasdemonstrated noevidence oreffort to rehabilitate himself and is addicted to alcohol and 6drugs. His incarceration is necessary for long term inpatient treatment for alcohol and drugs and for the protection of the public. Buckman, 236 Mont. at 40-41, 768 P.2d at 1363. The Buckman court gave specific facts taken from the record of the case as reasons for making its decision. Buckman is not analogous to the case at hand.While the court here made its decision "pursuant to Findings and Conclusions set forth above" such is not sufficient reasoning for our review. Remanded for further proceedings cons

WeConcur: