No. 89-489 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

STATE OF MONTANA, 

Plaintiff and Respondent, 

GORDON THIEL, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Seventh Judicial District, 

In and for the County of Richland, 

The Honorable H. R. Obert, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Mike Weber, Fairview, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Jennifer Anders, Asst. Atty. General, Helena 

Phillip Carter, Deputy County Attorney, Sidney, 

Montana 

Submitted: January 18, 1990 

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. * %*... .' . Decided: March 13, 1990 

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Justice John C. Sheehy delivered the Opinion of the Court. 

The defendant Gordon hi el appeals from two orders issued by 

the Seventh Judicial District Court, Richland County, revoking a 

suspended sentence and a deferred sentence. We clarify the effect 

of the sentences imposed. 

The defendant's issue on appeal can be summarized as follows: 

Must defendant serve the sentence imposed on him in cause no. 

1952 consecutively to the revoked deferred and suspended sentences 

imposed on him in other convictions? 

The defendant first appeared before the Seventh Judicial 

District in cause no. 1737, where he pled guilty to two counts of 

sexual assault. On May 23, 1984, the ~istrict Court Judge 

sentenced the defendant to serve seven years on each count to run 

concurrently. All seven years were suspended. 

The defendant next appeared before the Seventh Judicial 

District on February 10, 1986, in cause no. 1902 where he pled 

guilty to the felony charge of issuing a bad check in violation of 

5 45-6-316, MCA. In that case, on March 17, 1986, the District 

Court deferred the imposition of sentence. 

On May 20, 1986, the State filed a petition to revoke both the 

suspended sentence in cause no. 1737 and the deferred sentence in 

cause no. 1902. The District Court stayed the revocation 

proceedings until completion of a third matter, cause no. 1952, in 

which defendant was charged with 26 counts of sexual intercourse 

without consent. Following the trial, on July 22, 1987, a jury 

found the defendant guilty of all counts in cause no. 1952. 

On October 23, 1987, the ~istrict Court sentenced the 

defendant in cause no. 1952. The District Court made no mention 

of cause nos. 1737 or 1902, the pending petitions in those matters, 

or the sentences in those matters in the judgment and sentence 

entered in cause no. 1952. 
On April 4, 1988, a hearing was held before the District Court 

on the State's petition to revoke defendant's sentences in cause 

no. 1737 and cause no. 1902. The court revoked both sentences and 

ordered the defendant to serve seven years in cause no. 1737 and 

three years in cause no. 1902, with both terms to run concurrently. 

In its order the court stated that the sentences and judgments in 

the revocation matter were "strictly independent from the sentence 

and judgment found in cause no. 1952.'' 

On June 3, 1988, defendant filed a timely notice of appeal 

from the court's revocation orders. He had applied for sentence 

review on May 11, 1988, prior to filing the notice of appeal, but 

waived his appearance before the Sentence Review Division on March 

1, 1989. On July 27, 1989, defendant affirmed his appeal of the 

revocation order to this Court. 

I 

Must defendant serve the sentence imposed on him in cause no. 

1952 consecutively to the revoked deferred and suspended sentences 

imposed on him in other convictions? 

Defendant argues that the sentences received as a result of 

the revocation proceedings must be merged with the sentence imposed 

by the District Court in cause no. 1952. This argument is based 

on the defendant's interpretation of Montana's merger statute, 5 

46-18-401, MCA (1987), which states in pertinent part: 

Merser of Sentences. (1) Unless the judge otherwise 

orders : 

(b) whenever a person under suspended sentence or on 

probation for an offense committed in this state is 

sentenced for another offense, the period still to be 

served on suspended or probation shall be merged in any 

new sentence of commitment or probation. 

We agree with defendant's interpretation of 5 46-18-401 (1) (b) , 

MCA (1987). The defendant was under a suspended sentence in cause 
no. 1737 when he received his sentence in cause no. 1952. He was 

also under a deferred sentence for an offense committed in this 

State in cause no. 1902 when the District Court sentenced him in 

cause no. 1952. The District Court judge in the judgment and 

sentence in cause no. 1952 did not mention either of the other 

convictions or the pending motions for revocation. We find no 

judge's order to the contrary on October 23, 1987, and thus the 

previous sentences had merged with the sentence in cause no. 1952 

at that time. 

The State contends that while the District Court did not refer 

to the outstanding sentences in its order in cause no. 1952, the 

court in the subsequent revocation proceedings specifically ordered 

that "the sentence and judgment in this matter is strictly 

independent from the sentence and judgment found in cause no. 1952 

entitled the State of Montana v. Gordon Thiel." According to the 

State, by expressly stating that the sentences were independent, 

the District Court clearly intended that the sentences run 

consecutively. What the contention misses is that at the 

revocation hearing, it was too late for any provision that the 

sentences be served consecutively. Our decision in In re the 

Petition of Arledge (1988), 232 Mont. 450, 756 P.2d 1169 is 

factually distinguishable from this case and has no application 

here. 

Accordingly, we reverse with the instructions that the 

sentences imposed in cause nos. 1737 and 1902 should be served 

concurrently with the sentences in cause no. 1952. 
We Concur: 

&kr Chief fv Justice