No. 79-57 INTHE SUPREME COURT OF THE STATE OF MONTANA 1980

INTHE MATTER OF DANIEL McFADDEN

ORIGINAL PROCEEDING:
Counsel of Record: For Petitioner: DanielMcFadden, Pro Se, Deer Lodge, Montana For Respondent: Hon, Mike Greely, Attorney General, Helena, Montana John G. Winston, CountyAttorney, Butte, Montana

Submitted: November 29, 1979 Decided: 

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Filed: 

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## 1983Mr. Justice Daniel J. Shea delivered the Opinion of the Court. This is an originalpetition for post-conviction relief by DanielMcFadden, an inmate of the Montana State Prison. Petitioner contends that he is entitled to designation as a "nondangerous offender for purposes of parole eligibility" under the provisions of section 46-18-404(1), MCA. Designation as 

### a nondangerous offender enables a prisoner to be eligible forparole after he has served one-quarter of his sentence. On September 14, 1978,petitioner entered a guilty plea
on a felony charge of theft; and the Silver Bow County District Court ordered an evaluation and a presentence investigation. Thediagnostic and evaluation final report recommended that petitioner be given a ten year sentence with nineyears suspended. The adult parole and probation officer conducted a presentence investigation and recommended a ten year sentencewith nine years suspended. The reportsdid not recommend that petitioner be designated a dangerous offender. On November 9, 1978,the District Court sentencedpetitioner to ten years in prison with five years suspended, and designated him as a dangerous offender. Petitioner contends thathe is entitled to designation
as a nondangerous offender under section 46-18-404(1), MCA. Although this statute was amended by the legislature in 1979, the instant casemust be considered in accordance with the statutory provisions in effect at the time of sentencing in November 1978. Section 46-18-404(1)(a) is not applicable, since during the fiveyearspreceding the commission of his offense,petitioner had not been convicted of, or incarcerated for,an offense forwhich a sentence in excess of one year could have been imposed. Apparently in accordance with section 46-18-404(1)(b) the District Court determined that petitioner -2-represented a substantial danger to other persons or society, and designated him a dangerous offender. 'Jndersection 46-18-404(1)(b), MCA, an individualmay be designated a dangerous offender, if, in the discretion of the sentencing court,he is determined to represent a substantial danger to otherpersons or society; however, more than a mere recital of the statutory language is required. The sentencing court must articulate its reasons underlying its determination. The record reveals that the District Court never found that petitioner represented a substantial danger to other persons
or society;but rather concluded that petitioner was not rehabilitatable because he had not been truthfulwith the court. Based upon that conclusion,the District Court designated petitioner a dangerous offender. The designationof petitioner
as a dangerous offender is not supported,bysubstantial credible evidence. The District Court erred in designating petitioner as a dangerous offender; therefore, the cause is remandedwith directions to designate the petitioner as a nondangerous offender for purposes of parole

We Concur: