No. 88-034 

IN THE SUPREME COIJRT OF THE STATE OF MONTANA 

1989 

THE STATE OF MONTAMA, 

Plaintiff and Respondent, 

JOSEPH RUBEN RUCKMAN, 

a/k/a JOSHUA BUCKMAN, 

Defendant and Appellant. 

APPEAL FROM: The District Court of the Eighth Judicial. District, 

In and for the County of Cascade 

The Honorable John M. McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

E. June Lord, Great Falls, Montana 

For Respondent: 

Honorable Marc Racicot, Attorney General, Helena, Montana 

George Schunk, Assistant Attorney General, Helena 

Patrgk L. Paul, Cascade County Attorney, Great Falls, Montana 

Step3n E. Hagerman, Deputy Cascade County Attorney, Great Falls 

0 

N ,A; kl J 

Submitted on Briefs: December 9, 1988 

Decided: February 1, 1989 c .I - p-2 

. . -- 
Mr. Justice William E. Hunt, Sr. delivered the Opinion of the 

Court. 

In the Eighth Judicial District Court, Cascade County, 

defendant Joseph Ruben Buckman pleaded guilty to one count of 

deceptive practices, a felony. He received a 10-year 

sentence in the Montana State Prison and was designated a 

dangerous offender for purposes of parole eligibility. From 

the part of the sentence designating him a dangerous 

offender, Buckman appeals. We affirm. 

Two issues are presented for our consideration. 

1) Did the District Court abuse its discretion by 

designating Buckman a dangerous offender for purposes of 

parole eligibility? 

2) Did the District Court violate the terms of the plea 

agreement by designating Buckman a danqerous offender? 

During the night of July 2 or early morning of July 3, 

1987, a car owned by Milton J. Merrick was broken into and 

Merrick's wallet, containing several credit cards, was 

stolen. On July 3, 1987, Joseph Buckman unsuccessfully 

attempted to use Merrick's VISA card to purchase beer and 

gasoline from two Great Falls area Circle K stores. Three 

days later, Ruckman successfully purchased items from a 

Sinclair gas station and a Payless Shoe Store by using 

Merrick's Mastercard and forging his signature. On July 7, 

1987, Buckman was apprehended in a stolen motor vehicle with 

Merrick's wallet and credit cards in his possession. 

Buckman was charged with one count of deceptive 

practices, a felony, in violation of S 45-6-317 (1) (dl (i) , 

MCA, and one count of forgery, a felony, in violation of S 

45-6-325 (1) (a), MCA. Pursuant to a plea bargain, the State 

aareed to drop the forgery charge in exchange for Buckman's 
plea of guilty to the charge of deceptive practices. 

Although the State reserved the right to recommend 

sentencing, it agreed not to pursue a designation of 

persistent felony offender. 

At sentencing, the State recommended that Ruckman 

receive ten years, the maximum sentence allowed by law, and 

that he be designated a dangerous offender for purposes of 

parole eligibility. The Honorable John M. McCarvel accepted 

this recommendation and sentenced Buckman accordingly. 

Buckman appeals the designation of dangerous offender. 

Ruckman first argues that the District Court abused its 

discretion by designating him a dangerous offender. He 

contends that a defendant convicted of a nonviolent property 

crime does not represent a substantial danger to society and 

cannot, therefore, he considered a dangerous offender. 

A dangerous offender is not eligible for parole until he 

has served one-half of his full sentence. A nondangerous 

offender, in contrast, is eligible for parole after he has 

served one-quarter of his full sentence. Section 

46-23-201 (1) (a) , MCA. The statute governing the designation 

of an offender as dangerous or nondangerous is 5 46-18-404, 

MCA, which reads as follows: 

(1) The sentencing court shall designate an 

offender a nondanqerous 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, hased 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. 

(2) A conviction or incarceration may not be 

considered under subsection (1) (a) if: 

(a) the offender was less than 18 years of age at. 

the time of the commission of the present offense; 

or 

(b) the offender has been pardoned for the 

previous offense on the grounds of innocence or the 

conviction for such offense has been set asid.e in a 

postconviction hearing. 

(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 do not contain such a 

determination, the offender is considered to have 

been designated as a nondangerous offender for 

purposes of eligibility for parole. 

Subsection (1) of this statute delineates a two-part 

test. If the district court finds that the defendant was 

neither convicted of nor incarcerated for a felony offense 

within the five years preceding the crime for which he is 

being sentenced and that the defendant does not represent a 

substantial danger to society, the court must designate the 

defendant nondangerous. However, if the defendant satisfies 

only one prong of this two-part test, the district court, in 

its discretion, may apply the dangerous offender label. - See 

State v. Dahl (Mont. 1980), 620 P.2d 361, 365, 37 St.Rep. 

1852, 1857. 

When using its discretion to determine offender status, 

the District Court "may consider persistence in criminal 

conduct and failure of earlier discipline to deter or reform 

the defendant." State v. Nichols (Mont. 1986), 720 P.2d 

115?, 1163, 43 St.Rep. 1068, 1076. The District Court must 
articulate the reasons for designating a defendant as 

dangerous; "more than a mere recital of the statutory 

language is required." In re McFadden (1980), 185 Mont. 220, 

222, 605 P.2d 599, 600. 

In the present case, the District Court did indeed 

articulate the reasons for designating Buckman a dangerous 

offender. The court stated: 

The defendant, since he was 18 years old, has been 

involved with the criminal law. In 1979, he was 

given a three (3) year deferred sentence for auto 

theft. In 1980, he was convicted, by a jury, of 

Aggravated Assault and Aggravated Kidnapping, 

felonies, and was given two ten (10) year terms 

which ran concurrently and was designated a 

Dangerous offender. He was released from the 

Montana State Prison in February, 1987 and 

committed the crime of Deceptive Practices, a 

felony, by stealing and using stolen credit cards. 

The defendant has demonstrated no evidence or 

effort to rehabilitate himself and is addicted to 

alcohol and drugs. His incarceration is necessary 

for long term in-patient treatment for alcohol and 

drugs and for the protection of the public. 

Buckman had been released from prison only five months 

prior to the commission of t-he crime leading to the present 

conviction. Thus, even though the instant offense was of a 

nonviolent nature, the District Court was not required by 

statute to designate Buckman a nondangerous offender. 

Furthermore, Buckman had been previously convicted of 

aggravated assault and kidnapping for holding a gun to a 

hostage's head. The District Court considered this prior 

offense as well as Buckman's failure to rehabilitate himself 

when it found that the dangerous offender status applied. 

Under the circumstances, the District Court did not abuse its 

discretion. 

Buckman next argues that the District Court violated the 

terms of the plea aqreement when it designated him a 
dangerous offender. He apparently contends that because he 

was not advised by the State of the possibility that it might 

seek to have limitations placed on his parole eligibility, he 

did not enter the agreement with an understanding of the 

consequences of his guilty plea. 

Buckman relies on State v. Cavanaugh (19831, 207 Mont. 

237, 673 P.2d 482, a case very similar to his own, to support 

his theory. In Cavanaugh, the State agreed to drop two 

felony charges if the defendant pleaded guilty to two other 

charges. At sentencing, the trial judge gave Cavanaugh 

maximum penalties allowed by law and, in addition, ordered 

that he was ineligible for parole or for participation in the 

defender furlough program. We held that, as Cavanaugh was 

never advised of the possibility that he might be ineligible 

for parole, he did not enter into the agreement knowingly and 

voluntarily. We stated: 

[Dlefendant knew when he pled guilty that he could 

be sentenced to a maximum of one-hundred years for 

aggravated kidnapping and twenty years for 

aggravated assault. He did not know that he might 

be found ineligible for parole. A flat sentence of 

one-hundred years is far different than the 

sentence anticipated by a defendant who knows he 

might be sentenced to one-hundred and twenty years, 

but presumes that parole will be possible. Because 

of the disparity between the anticipated and actual 

sentence, the plea bargain into which defendant 

thought he was entering was not the plea bargain 

accepted by the trial judge. 

Cavanaugh, 207 Mont. at 241, 673 P.2d at 484. We concluded 

that a trial judge who accepts only a portion of a plea 

agreement must allow the defendant the opportunity to 

withdraw his guilty plea. Cavanaugh, 207 Mont. at 243, 673 

P.2d at 485. 
At the time of the Cavanaugh decision, the statute 

governing plea agreements, S 46-12-204, MCA (1981), read as 

(1) The defendant shall enter a plea of guilty or 

not guilty to the indictment, information, or 

complaint. If the defendant refuses to plead to 

the indictment, information, or complaint, a plea 

of not guilty must be entered. 

(2) The court may refuse to accept a plea of 

guilty and shall not accept the plea of guilty 

without first determining that the plea is 

voluntary with an understanding of the charge. 

In 1985, the legislature amended the statute, adding 

subsection (3) . (3) (a) A plea bargain agreement is an agreement 

between a defendant and a prosecutor that in 

exchange for a particular plea the prosecutor will 

recommend to the court a particular sentence. A 

judge may not participate in the making of, and is 

not bound by, a plea bargain agreement. If a judge 

does not impose a sentence recommended by a 

prosecutor pursuant to a plea bargain agreement, 

the judge is not required to allow the defendant to 

withdraw a plea of guilty. 

(b) Before a judge accepts a plea of guilty, he 

must advise the defendant: 

(i) of all the pro~7isions of subsection (3) (a); 

(ii) of the punishment as set forth by statute for 

the crime charged; 

(iii) that prior to entering a plea of quilty, the 

defendant and his counsel should have carefully 

reviewed Title 46, chapter 18, and considered the 

most severe sentence that can be imposed for a 

particular crime; and 

(iv) that the judge may impose any sentence 

allowed by law. 

Section 46-12-204 (3), MCA. The express purpose of the 

amendment was to overturn the Cavanaugh decision. Hearing on 
HB 700 Before the House Com. on the Judiciary (Feh. 18, 1985) 

49th Cong. 7. 

The amendments make it clear that a plea bargain is an 

agreement between the prosecutor and the accused only. The 

district court is not bound by the agreement. If the court 

chooses not to follow the prosecutor's recommendation 

pursuant to the plea bargain, it is not required to allow the 

defendant to withdraw his plea of guilty. Section 

46-12-204 (3) (a), MCA. 

The plea agreement in issue stipulated only that the 

State reserved the right to recommend sentencing and that the 

State would not seek to designate Buckman a persistent 

offender. It made no reference to the fact that the State 

might seek to limit Buckman's parole eligibility by 

recommending that the court declare him a dangerous offender. 

Buckman argues that the District Court, therefore, was 

required to apprise him of the possibility that his parole 

could be limited if the court chose to designate him as 

dangerous. 

Section 46-16-105(1) (b), MCA, requires the district 

court to advise the defendant of the consequences of his 

guilty plea and the maximum sentence which may be imposed. 

Other statutes flesh out S 46-16-105(b), MCA, by outlining 

specific items of which the defendant must be advised by the 

court. They provide that the defendant must be informed that 

the court is not bound by the plea agreement; that sentencing 

is governed by Title 46, Chapter 18; that the defendant 

should consider the most severe punishment allowed by law; 

and that the judge may impose any sentence allowed by law. 

Sections 46-12-202 and 46-12-204 (3) (b) , MCA. These statutes 

do not require the District Court to advise the defendant of 

any possi.bility of limitations on his parole eligibility. 
Ruckman testified at his change of plea hearing that he 

understood that sentencing was solely in the discretion of 

the District Court; that he could receive a maximum of 10 

years for his crime; that he entered the plea voluntarily; 

and that he was satisfied with counsel. Furthermore, as he 

had been declared a dangerous offender for his previous 

conviction, Buckman was aware of the fact that such 

limitations on parole exist. We cannot say, under these 

circumstances, that Buckman did not understand the 

consequences of his plea. The District Court did not err by 

failing to inform Buckman, before it accepted his guilty 

plea, of the possibility that he could be designated a 

dangerous offender. 

We affirm the District Cour 

We B oncur: