No. 79-57 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

IN THE MATTER OF DANIEL McFADDEN 

ORIGINAL PROCEEDING: 

Counsel of Record: 

For Petitioner: 

Daniel McFadden, Pro Se, Deer Lodge, Montana 

For Respondent: 

Hon, Mike Greely, Attorney General, Helena, Montana 

John G. Winston, County Attorney, Butte, Montana 

Submitted: November 29, 1979 

Decided: && 16 -1980 

Filed: JkIi 16 1983 
Mr. Justice Daniel J. Shea delivered the Opinion of the Court. 

This is an original petition for post-conviction 

relief by Daniel McFadden, 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 for parole 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. 

The diagnostic and evaluation final report recommended that 

petitioner be given a ten year sentence with nine years suspended. 

The adult parole and probation officer conducted a presentence 

investigation and recommended a ten year sentence with nine 

years suspended. The reports did not recommend that petitioner 

be designated a dangerous offender. On November 9, 1978, the 

District Court sentenced petitioner to ten years in prison 

with five years suspended, and designated him as a dangerous 

offender. 

Petitioner contends that he 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 case must 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 five years preceding the commission of his 

offense, petitioner had not been convicted of, or incarcerated 

for, an offense for which 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 

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represented a substantial danger to other persons or society, 

and designated him a dangerous offender. 

'Jnder section 46-18-404(1)(b), 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. 

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 truthful with the court. 

Based upon that conclusion, the District Court designated 

petitioner a dangerous offender. The designation of petitioner 

as a dangerous offender is not supported,by substantial credible 

evidence. 

The District Court erred in designating petitioner as a 

dangerous offender; therefore, the cause is remanded with 

directions to designate the petitioner as a nondangerous 

offender for purposes of parole 

We Concur: