No. 90-489 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

STATE OF MONTANA, Plaintiff and Respondent,

-vsFRANK BELMAREZ

### , Defendant and Appellant.

APPEAL FROM: DistrictCourt of theThirteenth Judicial District, In and for the County of Yellowstone, The Honorable William J. Speare, Judge presiding.

COUNSEL OF RECORD: For Appellant: Arthur J. Thompson; Thompson & Sessions,Billings, Montana. For Respondent: Hon. Marc Racicot, Attorney General, State of Montana, Helena, Montana; Elizabeth Griffing, Assistant Attorney General, Helena,Montana; Dennis Paxinos, Yellowstone County Attorney, Billings,Montana; Brent Brooks,DeputyYellowstone County Attorney, Billings, Montana.



### MAY

### 3

## 81991 Submitted on briefs: April 11, 1991 

# LdSmifIz Decided: May 30, 1991 CLERKOFSUPREMECOU STATEOF MONTANAJustice R. C. McDonough delivered the Opinion of the Court.

The defendant Frank Belmarez appeals the judgment and commitment of the Montana Thirteenth Judicial District Court, Yellowstone County, sentencing him to forty-five years in the Montana State Prisonand designatinghim adangerous offender. The sole issue to be determined iswhether the District Court erred in designating thedefendant adangerousoffender. We remand the case for further findings. Thedefendantwas chargedby information for stabbing todeath his wife, Vicki Espinoza, and for assaulting his sister, Jolene Belmarez, with the same weapon. At the sentencing hearing the defendant described the fight. He had left his wife a few days before the attack. The day of the incident, he returned to her apartment to get some clothes and tried to talkwith his children. Vicki became angry and asked him to leave. He left and went to a bar. She followed him to the bar, arriving a few minutes later. The couple went outside the bar and began to argue and then to wrestle. Jolene intervened to help Vicki. At some point in the altercation the defendant stabbed both Vicki and Jolene. On May 10, 1990 the defendant plead guilty to mitigated deliberate homicide, aggravated assault, and escape. On June 27, 1990, the District Court sentenced Belmarez on Count I to a term of thirty-five years for mitigated deliberate homicide, plus an additional ten years for the use of a weapon; on Count 11, the aggravated assault, to a term of fifteenyears,plus an additional ten years for the use of a weapon; and on Count 111, the escape, 2to a term of ten years, said sentences to run concurrently with each other. The District Court also found that the defendant did not qualify to be treated as a nondangerous offender pursuant to 5 46-18-404(3), MCA, and ordered that the defendant be designated a dangerous offender. The sentencing court's designation of an offender as either nondangerous or dangerous is an important factor in determining parole eligibility. See 

### 5 46-23-201(2), MCA. Designation as a nondangerous offender is governed by 5 46-18-404(3). The statute provides in pertinent 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 5yearspreceding 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 1yearcouldhavebeen imposed; and (b the court has determined, based on any presentence report and the evidence presented at the trial and the sentencinghearing, that the offender does not represent a substantial danser to other persons or societv.



# ... (3) If the court determines that an offender is a dangerous offender, it shall make that determination a part of the sentence imposed and shall state the determination in the iudment. 

# . . . [I]f the sentence and judgment do not contain a determination that the offender is a dangerous offender, the offender is considered to have been designated as a nondangerous offender for purposes of eligibility for parole. Section 46-18-404, MCA. (Emphasisadded.) In its Judgment and Commitment, the District Court gave the following reasons for the sentence imposed: 1. The Court has considered the contents of thepresentence report. 2. TheCourt has considered theplea-agreement entered into. 3. The Court has considered the fact that Defendant has no prior felony convictions. 4. The Court feels that the defendant is sincerely remorseful for this crime. 5. The Court has taken into consideration thevictims of this matter. 6. The Court feels that the defendant is a danger to society. At the sentencing hearing, the District Court also discussed its determination that the defendant be designated as dangerous: You are hereby designated as a dangerous offender because Ibelieve you to be a danger. I recognize that youhavenoprior record,but in taking into accountboth the mother-in-law and the sister's statements Ido make that designation. According to this statement,theapparent bases for thedesignation

were the statements of the defendant's mother-in-law and sister in letters included in thepresentence report. The courtnoted the content of these letters: Your sister saysthat she feelsbad about what happened. "1 feel like it ismostly my fault. Ithurts me toknow my sister-in-law will never comeback, and it also hurts to know thatmy brother will be in jail a long time. At first 

### I was angry with him, but 

### I got to accept what happened and that it wasn't my fault. I still love my brother though.'I



# . . . Now the Espinoza letter is much different. Shewas themother of Vicki, and she worries, fears,and she doesn't express any sorrow for you. Under § 46-18-404, MCA, "an individual may be designated a dangerous offender, if, in the discretion of the sentencing court, he isdetermined torepresent a substantial danger tootherpersonsor society; however, more than a mere recital of the statutory language is required. The sentencing court must articulate its

reasons underlying its determination." Statev. Ford (1985), 218 Mont. 215, 221, 707 P.2d 16, 20; Matter of McFadden (1980), 185 Mont. 220, 222, 605 P.2d 599, 600; see also State v. Camitsch

(1981), 192 Mont. 124, 140, 626 P.2d 1250, 1258-9. Our review of the record here indicates that the District Court failed to articulate itsreasons forthedangerous offender designation. The court set forth its reasons for the sentence imposed in its Judgment and Commitment Order and then concluded that "[tlhe Court feels that the defendant is a danger to society." Among the reasons for the sentence, the court did state that it "has taken into consideration the victims of this matter." This alone is insufficientto concludethat thedefendant is a dangerto society. Absent anarticulated reason forthedesignation,the reasonsgiven by the District Court as a whole might as easily support a nondangerous designation. The defendant argues that there is no substantial credible evidence in the record to supporta dangerous offender designation and that this Court should reverse and order that the defendant be designateda nondangerousoffender. We disagree. Where therecord 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. Ford, 707 P.2d at 20; Camitsch, 626 P.2d at 1259. Without such findings, this Court cannot determine if thereis an abuse of discretion. Ford, 707 P.2d at 20. Here, the letter from the victim's mother in the presentence report indicates that she isafraid thedefendantwill harmher family or thedefendantIs and victim's children: If Frank should go free, Iknowwe will never feel safe again. We will be worrying if he will try and get one of us and take the kids away, to do harm. We fear for the safety of our lives and the safety of the kids. Also, this Court has held that the serious and vicious nature of

a crime may be sufficient reason for designating a person a dangerousoffender. See,e.g, Statev. Mazurkiewicz (Mont. 1990), 799 P.2d 1066, 1069, 47 St.Rep. 1962, 1965-6;Statev. Bell (1987), 225 Mont. 83, 95, 731 P.2d 336, 343-4. Thus, while there is substantial evidence on the record in this case,because the court failed to articulate its reasons in the judgment, we cannot determine whether the District Court abused its discretion in designating thedefendant a dangerousoffender. SeeFord, 707P.2d at 20. Accordingly,we remand this case to the District Court for further proceedings consistentwith this opinion. REMANDED for further proceedings. 1

We Concur: