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: District Court of the Thirteenth 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, Deputy Yellowstone 

County Attorney, Billings, Montana. 

MAY 3 8 1991 Submitted on briefs: April 11, 1991 

Ld SmifIz Decided: May 30, 1991 

CLERK OF SUPREME COU 

STATE OF MONTANA 
Justice 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 Prison and designating him a dangerous offender. The 

sole issue to be determined is whether the District Court erred in 

designating the defendant a dangerous offender. We remand the case 

for further findings. 

The defendant was charged by information for stabbing to death 

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 talk with 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 fifteen years, plus an additional 

ten years for the use of a weapon; and on Count 111, the escape, 

2 
to 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 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 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. (Emphasis added.) 

In its Judgment and Commitment, the District Court gave the 

following reasons for the sentence imposed: 

1. The Court has considered the contents of the 
presentence report. 

2. The Court has considered the plea-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 the victims 

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 I believe you to be a danger. I recognize that 

you have no prior record, but in taking into account both 

the mother-in-law and the sister's statements I do make 

that designation. 

According to this statement, the apparent bases for the designation 

were the statements of the defendant's mother-in-law and sister 

in letters included in the presentence report. The court noted the 

content of these letters: 

Your sister says that she feels bad about what happened. 

"1 feel like it is mostly my fault. It hurts me to know 

my sister-in-law will never come back, and it also hurts 

to know that my 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. 

She was the mother 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 is determined to represent a substantial danger to other persons 
or society; however, more than a mere recital of the statutory 

language is required. The sentencing court must articulate its 

reasons underlying its determination." State v. 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 its reasons forthe dangerous 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 

insufficient to conclude that the defendant is a danger to society. 

Absent an articulated reason forthe designation, the reasons given 

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 support a dangerous offender designation 

and that this Court should reverse and order that the defendant be 

designated a nondangerous offender. We disagree. 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. Ford, 707 P.2d at 20; Camitsch, 626 P.2d at 

1259. Without such findings, this Court cannot determine if there 
is 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 is afraid the defendant will harm her family or the defendant Is 

and victim's children: 

If Frank should go free, I know we 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 

dangerous offender. See, e.g, State v. Mazurkiewicz (Mont. 1990), 

799 P.2d 1066, 1069, 47 St.Rep. 1962, 1965-6; State v. 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 the defendant a dangerous offender. See Ford, 707 P.2d 

at 20. Accordingly, we remand this case to the District Court for 

further proceedings consistent with this opinion. 

REMANDED for further proceedings. 1 

We Concur: