NO. 95-194 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Robert P. Goff, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John Keith, Great Falls, Montana 

For Respondent: 

Joseph P. Mazurek, Attorney General, Barbara Harris, 

Assistant Attorney General, Helena, Montana; Brant 

Light, Cascade County Attorney, Great Falls, Montana 

Filed: 

Submitted on Briefs: January 18, 1996 

Decided: June 20, 1996 

.~ 
Justice James C. Nelson delivered the Opinion of the Court. 

Mary-Helen Collier was charged by information in the Eighth 

Judicial District Court, Cascade County, with solicitation of 

deliberate homicide. Pursuant to a plea agreement, Collier pleaded 

guilty to an amended charge of criminal endangerment. She was 

sentenced to eight years in the Women's Correctional Facility and 

designated a dangerous offender for purposes of parole eligibility. 

Collier appeals her sentence and the District Court's order denying 

her Motion to Dismiss for Lack of a Speedy Trial. We affirm. 

Collier raises the following issues on appeal: 

1. Did the District Court err in failing to dismiss the 

matter for lack of a speedy trial? 

2. Did the District Court err in designating Collier a 

dangerous offender? 

3. Did the District Court err in failing to find that Collier 

was unable to appreciate the criminality of her conduct? 

4. Did the District Court err in ordering Collier to pay 

restitution? 

5. Did the District Court err in permitting the County 

Attorney to argue facts at sentencing supporting the original 

charge of solicitation of deliberate homicide? 

6. Did the District Court err in failing to release Collier 

or transfer her to a different detention facility due to conditions 

at the Cascade County jail? 

Factual and Procedural Background 

On September 27, 1993, Bridget Fackrell reported to the Great 

2 
Falls Police Department that Collier had attempted to hire Fackrell 

and another individual to kill Collier's ex-husband, Evan Danno. 

Fackrell claimed that several months earlier, while she and Collier 

roomed together, Collier repeatedly stated that she wished to have 

Danno killed so that she could be rid of him. 

In early September, prior to her report to the police, 

Fackrell travelled to Idaho to attend a funeral. She returned to 

Great Falls with two friends, Travis Moreland and Carlton Taylor. 

When Fackrell told Moreland and Taylor of Collier's desire to have 

Danno killed, Moreland suggested that they agree to do the job, 

take Collier's money, then warn Danno of Collier's plan. 

Fackrell arranged a meeting between Collier, Moreland and 

Taylor wherein the parties agreed that Moreland would kill Danno as 

soon as Collier could arrange to be out of town with the children. 

Collier had recently moved back into Danno's home where she was 

residing with Danno and their two daughters. The plan called for 

Moreland to enter Danno's home early one morning while Collier and 

the children were away, kill Danno and make it look as though there 

had been a burglary. Collier agreed to pay Moreland $1500 to kill 

Danno. 

A few days after the meeting, Collier informed Fackrell that 

she would be attending her uncle's funeral in Kalispell and that 

she wanted Danno killed while she and the children were gone. 

Prior to leaving town, Collier gave Fackrell a key to Danno's 

house, a personal check for $250, Collier's instant cash card, the 

security code to allow access to her account and instructions to 

3 
withdraw $500 from the account. Collier had previously given 

Moreland a picture of Danno. Fackrell turned all of these items 

over to the authorities when she informed them of Collier's plan. 

Collier was arrested in Kalispell on September 30, 1993. She 

was transferred to the Cascade County jail the following day and 

charged with solicitation of deliberate homicide, a felony, as 

specified in §§ 45-4-101 and 45-5-102(l) (a), MCA (1991). Her bail 

was set at $250,000. 

The District Court determined that Collier was indigent and 

appointed Billy Miller, an attorney under contract to the Cascade 

County Public Defender's Office, to represent her. At her October 

19, 1993 arraignment, Collier entered a plea of not guilty and the 

first of several trial dates was set. Over the next few months, 

several motions for reduction of bail were filed but each was 

denied by the District Court. Collier was unable to post bail and 

she remained in the Cascade County jail from October 1, 1993, until 

after her sentencing on January 13, 1995. 

On December 6, 1993, Miller filed a motion in District Court 

to vacate and reset the trial date to allow him additional time to 

prepare Collier's defense. The District Court granted the motion 

and a second trial date was set. On December 14, 1993, Miller 

requested that the public defender's office appoint new counsel for 

Collier as Miller intended to leave his public defender position at 

the end of the year. The court appointed Marvin Anderson, also 

under contract to the public defender's office, to represent 

Collier. 
Anderson filed a motion on February 8, 1994, requesting a 

psychiatric evaluation for Collier. However, in a handwritten 

letter addressed to the District Court Judge, Collier objected to 

a transfer to Montana State Hospital at Warm Springs for the 

evaluation. Anderson withdrew the motion a few days later. The 

District Court Judge received another handwritten letter from 

Collier on April 12, 1994, in which she complained of inadequate 

representation by counsel and requested that her trial be delayed. 

On April 22, 1994, Anderson filed a motion for a psychiatric 

evaluation of Collier to be performed in Great Falls. The District 

Court granted the motion the same day. However, a few days later, 

Collier agreed instead to undergo a psychiatric evaluation at 

Montana State Hospital at Warm Springs. 

Collier and nine other individuals filed a petition in federal 

district court to intervene in an action regarding the public 

defender system in Cascade County. On April 25, 1994, Anderson 

filed a motion with the court to continue the trial due to a 

scheduling conflict with Collier's civil case. The District Court 

granted Anderson's motion and the trial date was again reset. 

On May 16, 1994, the chief public defender in Cascade County 

filed a motion to withdraw the public defender's office from 

representation of Collier and the nine other individuals who had 

petitioned the federal court for intervention. Two days later, an 

attorney independent of the public defender's office was appointed 

to represent Collier and trial was reset by order of the court. 

The County Attorney filed a motion on June 17, 1994, to reschedule 

5 
the trial as the scheduled date fell on a Thursday. This motion 

was granted and trial was subsequently rescheduled. 

Collier's attorney filed several motions on June 29, 1994, 

including a motion to dismiss the charge for lack of a speedy trial 

and a motion to release or transfer Collier from the Cascade County 

jail as the jail did not meet state standards. In addition a motion 

was filed on August 10, 1994, for authorization to hire an 

investigator and a psychologist. On September 21, 1994, the 

District Court, without a hearing, authorized Collier's counsel to 

incur up to $2000 in professional and investigative services. 

The District Court scheduled a hearing for August 5, 1994, on 

the motion to dismiss for lack of a speedy trial and the motion to 

release or transfer Collier. This hearing was postponed until 

October 7, 1994. After hearing testimony, the District Court 

denied both motions. 

Collier's attorney filed a motion on October 3, 1994, to 

transport Collier to Missoula for another psychiatric evaluation. 

The court granted the motion the same day. 

On October 20, 1994, the State requested a continuance and the 

trial date was once again reset. At some time prior to this new 

trial date of December 12, 1994, the parties reached an agreement 

wherein the original charge of solicitation of deliberate homicide 

was amended to a charge of criminal endangerment, a felony, 

pursuant to § 45-5-207, MCA (1993). In the Acknowledgement of 

Waiver of Rights accompanying the plea agreement, Collier waived 

her right to plead not guilty and her right to be tried by a judge 

6 
or a jury. 

Collier entered a plea of guilty to the charge of criminal 

endangerment on December 9, 1994. She was sentenced on January 13, 

1995, to eight years in prison and designated a dangerous offender 

for purposes of parole eligibility. In its sentencing order, the 

District Court recommended that if Collier is released on parole or 

supervised release before the completion of her full sentence, then 

such parole or supervised release should be subject to several 

conditions including payment of restitution and a supervision fee. 

Issue 1. 

Did the District Court err in failing to dismiss the matter 

for lack of a speedy trial? 

Collier was arrested on September 30, 1993, and arraigned on 

October 19, 1993. After several continuances, a trial date of 

December 12, 1994, was set. But, a few days prior to trial, 

Collier entered into a plea agreement wherein she agreed to plead 

guilty to an amended charge of criminal endangerment. From the 

date of her arrest until after sentencing, Collier remained in 

custody at the Cascade County jail. 

On June 29, 1994, after being in custody for more than 270 

days, Collier filed a Motion to Dismiss for Lack of a Speedy Trial. 

In denying her motion, the District Court determined that most of 

the delay was attributable to Collier. Collier contends that this 

was error and that the State caused the majority of the delay. 

The State, on the other hand, contends that Collier waived her 

right to raise the issue on appeal when she pleaded guilty. The 
State further contends that even if she did not waive her right to 

raise the issue on appeal, her right to a speedy trial was not 

violated. 

This Court has previously stated that a plea of guilty that is 

voluntarily and understandingly made constitutes a waiver of 

nonjurisdictional defects and defenses, including claims of 

constitutional violations which occurred prior to the plea. Hagan 

v. State (1994), 265 Mont. 31, 35, 873 P.2d 1385, 1387 (citing 

State v. Turcotte (1974), 164 Mont. 426, 428, 524 P.2d 787, 788). 

The right to a speedy trial is a nonjurisdictional defect claim. 

U.S. v. Bohn (9th Cir. 1992), 956 F.2d 208, 209. 

However, we find that in this case Collier did not waive her 

right to a speedy trial. On the contrary, the language in the plea 

agreement shows that Collier did reserve her right to appeal: 

Each party understands that the presiding District Court 

Judge can designate the defendant as a dangerous offender 

as well as limit his eligibility for parole and work 

release furlough programs, and that the defendant gives 

up certain rights as outlined in the accompanying waiver 

of rights, but the defendant may subsequently appeal any 

improper determination or ruling by the Court. [Emphasis 

added.1 

Moreover, both the County Attorney and Collier signed the plea 

agreement. Thus we conclude that Collier did reserve her right to 

appeal the District Court's order denying her Motion to Dismiss for 

Lack of a Speedy Trial. We next address the merits of her claim. 

The Sixth Amendment to the United States Constitution and 

Article II, section 24, of the Montana Constitution guarantee a 

criminal defendant's right to a speedy trial. Whether that right 

has been violated is determined by a four-part test set out in 

8 
Barker v. Wingo (1972), 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 

L.Ed.Zd 101, 116-17, and adopted by this Court in State ex rel. 

Briceno v. Dist. Ct. of 13th Jud. Dist. (1977), 173 Mont. 516, 518, 

568 P.2d 162, 163-64. 

This test requires a balancing of the following four factors: 

(1) the length of the delay; (2) the reason for the delay; (3) the 

assertion of the right by the defendant; and (4) prejudice to the 

defendant. State v. Matthews (1995), 271Mont. 24, 27-28, 894 P.2d 

285, 287 (citing State v. Stewart (1994), 266 Mont. 525, 529, 881 

P.2d 629, 632). No one factor is determinative, rather, all four 

factors are weighed by considering the facts and circumstances of 

each case. Matthews, 894 P.2d at 287. 

The first factor, length of the delay, triggers further 

inquiry into the remaining three factors. It is not necessary to 

consider the remaining factors unless the length of the delay is 

presumptively prejudicial. State v. Eklund (1994), 264 Mont. 420, 

424, 872 P.2d 323, 326 (citing State v. Thompson (19931, 263 Mont. 

17, 32, 865 P.2d 1125, 1134). When considering the length of the 

delay, no regard is given to which party caused the delay. Eklund, 

872 P.2d at 326. 

In the case before us, there had already been a delay of more 

than 270 days by the time Collier brought her Motion to Dismiss for 

Lack of a Speedy Trial. We have previously stated that a delay of 

over 200 days will usually trigger further analysis. Eklund, 072 

P.2d at 326; Matthews, 894 P.2d at 287. Thus the delay in the 

present case is more than sufficient to warrant an analysis of the 

9 

- 
remaining three factors. 

We have already established that Collier met the third factor 

of the test, assertion of the right by the defendant, when she 

filed her Motion to Dismiss for Lack of a Speedy Trial in a timely 

manner. In analyzing the two remaining factors, we must keep in 

mind that the State has the burden to provide a reasonable 

explanation for the delay and to show that the defendant was not 

prejudiced by the delay. Eklund, 072 P.2d at 326. 

The second factor, reason for the delay, requires us to 

allocate portions of the overall delay to the party responsible for 

causing that particular delay. Here, Collier argues that the 

District Court was incorrect in allocating the majority of the 

delay to her. She contends that Cascade County, by its undertaking 

to provide representation, should bear the full burden of the 

consequences of failing to appoint counsel with sufficient 

experience and capability to provide representation to a defendant. 

While we agree that the first 75 days of the delay, from the 

time Collier was arrested until the original date set for trial, 

represented institutional delay properly allocated to the State, we 

conclude that the balance of the time, with some minor exceptions, 

was properly allocated to Collier. Moreover, institutional delay, 

though charged against the State, weighs less heavily than 

intentional delay. State v. Gould (1995), 273 Mont. 207, 216, 902 

P.2d 532, 538. 

On December 6, 1993, one week prior to the original date set 

for trial, Collier's attorney filed a motion to vacate and reset 

10 
the trial date to allow him additional time to prepare Collier's 

defense. The District Court rescheduled the trial for February 8, 

1994. Thus the 56 day delay from December 14, 1993, to February 8, 

1994, is attributable to Collier. 

On February 8, 1994, Collier's attorney filed a motion for a 

bail reduction hearing and a motion for a psychiatric evaluation of 

Collier. Due to these pending motions, the District court 

rescheduled the trial for March 21, 1994. Hence, the 41 day delay 

from February 8, 1994, to March 21, 1994, is attributable to 

Collier as well. 

There is no information in the record as to why the trial was 

not held on March 21, 1994. However, on March 31, 1994, the State 

requested that a trial date be set and the court set April 25, 

1994, as the new trial date. Since the 35 day delay from March 21, 

1994, to April 25, 1994, is of unknown origin, for purposes of this 

discussion, we will attribute that time to the State as 

institutional delay. 

On April 12, 1994, the District Court Judge received a 

handwritten letter from Collier requesting that the April 25, 1994 

trial date be reset due to lack of adequate counsel and a conflict 

with her civil case. Collier's attorney filed a motion on April 

22, 1994, to commit Collier to Montana Deaconess Medical Center in 

Great Falls for a mental health examination. In addition, he filed 

a motion on April 25, 1.994, to continue the trial due to conflicts 

with Collier's civil case. The District Court rescheduled the 

trial for June 7, 1994. Consequently, the 43 day delay from April 

11 
25, 1994, to June 7, 1994, is also attributable to Collier. 

On May 16, 1994, the public defender's office withdrew from 

representation of Collier and on May 18, 1994, new counsel was 

appointed. On June 7, 1994, the District Court issued an order 

vacating the trial set for that date due to a conflict in the 

court's calendar and resetting the trial for July 7, 1994. The 30 

day delay from June 7, 1994, to July 7, 1994, is institutional 

delay attributable to the State. 

Collier filed her Motion to Dismiss for Lack of a Speedy Trial 

on June 29, 1994. Of the nearly 280 days from the date of her 

arrest on September 30, 1993, until her motion to dismiss was filed 

on June 29, 1994, 140 days can be considered institutional delay 

attributable to the State, and 140 days are directly attributable 

to Collier. 

While Collier contends that the majority of the delay 

attributed to her is due to the inexperience of her appointed 

public defenders, she fails to establish what exactly her public 

defenders failed to do on her behalf, how they failed to represent 

her interests or how their requests for additional time to prepare 

her defense, for bail reduction and for psychiatric evaluation 

could be or should be attributed to the State. Collier's 

conclusory statements of inadequate representation by her public 

defenders are unpersuasive in the face of the record which 

demonstrates that both she and her public defenders were actively 

involved in her defense. 

Furthermore, even if we accept, arguendo, Collier's argument 

12 
that the majority of the delay should be attributed to the State, 

she has, nevertheless, failed to demonstrate how that delay 

prejudiced her defense in any way. Prejudice to the defendant, the 

fourth factor of the Barker test, is analyzed by assessing three 

interests which the right to a speedy trial was designed to 

protect: (1) prevention of oppressive pretrial incarceration; (2) 

minimization of the defendant's anxiety and concern; and (3) 

avoidance of impairment of the defense. The last of these being 

the most critical factor. Matthews, 894 P.2d at 288; Eklund, 872 

P.2d at 326. 

It is undisputed that 'Collier was incarcerated from the time 

of her arrest to the time of her sentencing. She claims that she 

was prejudiced by the oppressive conditions of her incarceration 

and her anxiety and concern over her inability to be with her 

children. We recognize that a certain amount of anxiety and 

concern are inherent in being charged with a crime and that proving 

anxiety and concern beyond that which normally accompany being 

charged with a crime is extremely difficult. Gould, 902 P.2d at 

539. Moreover, Collier would not have been able to "be with" her 

children even if she were not incarcerated, as her ex-husband had 

obtained a temporary restraining order preventing her from having 

anything other than closely supervised visitation with the 

children. While Collier's anxiety and concern may have been 

heightened under the particular circumstances of this case, we are, 

nevertheless, unpersuaded that, weighing this consideration in the 

context of the entire Barker analysis, her anxiety and concern 

13 
would have merited granting her motion to dismiss. 

Finally, and most importantly, Collier has failed to allege 

any specific instances where her defense was impaired by the delay 

in her case. A mere self-serving assertion that the defendant 

suffered prejudice is not sufficient to demonstrate that the delay 

impaired or prejudiced the defense. State v. Weeks (1995), 270 

Mont. 63, 74, 891 P.2d 477, 484. 

Weighing the facts and circumstances in this case with the 

factors set forth in Barker establishes that Collier did not suffer 

any prejudice in her defense from the delay whether those delays 

were attributable to the State or caused by Collier. Thus, we hold 

that Collier's right to a speedy trial was not violated and that 

the District Court did not err in denying Collier's motion to 

dismiss on speedy trial grounds. 

Issue 2. 

Did the District Court err in designating Collier a dangerous 

offender? 

The District Court designated Collier a dangerous offender for 

purposes of parole eligibility because it determined that she 

continues to represent a "substantial danger" to others, 

particularly her ex-husband. Section 46-18-404(l) (b), MCA (1993). 

In State v. Wing (1994), 264 Mont. 215, 870 P.2d 1368, we held that 

an offender may be designated as a dangerous offender if the 

district court determines that the offender represents a 

substantial danger to other persons or society. However, we said 

that unless the district court articulates why the offender 

14 
represents a substantial danger, this Court cannot determine if the 

district court abused its discretion. 

Contrary to the State's contention that the District Court's 

Amended Sentence contains adequate findings for designating Collier 

a dangerous offender, Collier contends that the court does "nothing 

more than make conclusory statements which recite the statutory 

language." Collier argues that the court's findings in this case 

are insufficient 

This Court has stated in prior opinions that a mere recitation 

of the statutory language is insufficient. State v. Morrison 

(1993), 257 Mont. 282, 287; 848 P.2d 514, 517; State v. Henrich 

(1994), 268 Mont. 258, 271, 886 P.2d 402, 410. Furthermore, we 

have held that a district court must give specific facts taken from 

the record of the case as reasons for making its decision. State 

v. Evans (19951, 272 Mont. 58, 62-63, 899 P.2d 1073, 1075-76. 

In its Amended Sentence, the District Court related the 

following facts as the basis for its determination: 

12. Defendant continues to demonstrate an 

unwillingness to accept responsibility for her actions. 

She blames other people for this crime, including her exhusband and Bridget Fackrell. Defendant and her exhusband had disputes. She believed that he was abusive 

to her and to their children. She had some trouble with 

visitation of the children. She discussed with others 

the possibility of having her ex-husband killed in order 

to remove her problems: These discussions occurred over 

a period of several months. When someone was apparently 

willing to take her up on the idea, she presented to them 

a plan that could have accomplished the death of her exhusband and diverted suspicion from her. 

As part of the conversations, Defendant gave 

Fackrell money, a key to her house, and her ATM card and 

PIN number. She gave Travis Moreland, another person 

with whom she discussed the matter, a picture of her exhusband. She described the house and the best means of 

15 
access to it. She told Fackrell and Moreland that she 

had moved her belongings so they wouldn't take them in 

the robbery which she proposed they commit to cover up 

the offense. In fact, she moved certain of her 

belongings to the basement of the house, so they would 

not be taken. In sum, she presented a complete plan for 

the death of her ex-husband. 

Along these same lines; the District Court made the following 

findings: 

3. The circumstances under which Defendant 

committed this crime reflect that it was done with total 

disregard to the well being of Evan Danno and Defendant's 

children. 

9.' . Defendant didnot act under strong provocation. 

Her actions were taken not in a moment of passion. They 

occurred over a period of time and culminated at a time 

when Defendant was trying to reconcile her marriage. 

10. Because of the circumstances surrounding the 

commission of this crime, at present Defendant's crime 

will likely reoccur. Defendant has expressed no remorse 

and has not accepted responsibility for her acts. 

Defendant continues to place blame on others. 

Defendant's refusal to take responsibility for the crime 

makes Defendant likely to commit other crimes, if the 

action will benefit Defendant. 

Accordingly, we conclude that the dangerous offender 

designation in this case was supported by the record and adequately 

justified in the District Court's written judgment. 

Issue 3. 

Did the District Court err in failing to find that Collier was 

unable to appreciate the criminality of her conduct? 

Collier claims that she was unable to appreciate the 

criminality of her conduct due to mental disease or defect and that 

the District Court erred in not sentencing her accordingly. She 

maintains that based on her mental condition, she should have been 

placed in a specialized institution rather than a prison. 

16 
This Court held in State v. Byers (1993), 261 Mont. 17, 861 

P.2d 860, that a defendant's mental disease or defect may be 

evaluated at three different stages of the legal proceedings: 

before trial, pursuant to 5 46-14-103, MCA; during trial, pursuant 

to § 46-14-102, MCA; and during sentencing, pursuant to § 46-14- 

311, MCA. We said in Bvers that 

the sentencing judge may consider whether at the time of 

the commission of the offense the defendant was suffering 

from a mental disease or defect that rendered him unable 

to appreciate the criminality of his behavior or to 

conform his behavior to the requirements of the law. 

Section 46-14-311, MCA. The sentencing judge must then 

determine whether the mental disease or defect is such 

that defendant should be confined to a specialized 

institution. 

Bvers, 861 P.Zd at 866. 

A determination of the existence of mental disease or defect 

rests within the discretion of the sentencing judge. State v. 

Watson (19841, 211 Mont. 401, 416, 686 P.2d 879, 888-89 (citing 

State v. Doney (1981), 194 Mont. 22, 35, 636 P.2d 1377, 1385). 

Here the District Court considered several different evaluations of 

Collier's mental condition. 

The first psychological evaluation was completed on December 

2, 1993, by Dr. John Mendenhall of Psychiatric Associates of Great 

Falls. In his report, Dr. Mendenhall states that Collier 

is perfectly aware of the charges against her and their 

significance and she is aware of the nature of the crime 

of which she is accused. She is aware of the 

consequences of such a crime in the hypothetical sense 

and she emphatically states that she believes she is 

competent to stand trial. I see no reason to disagree 

with her. 

A second psychological evaluation was completed on May 17, 

17 
1994, by Dr. John Van Hassel, a psychologist with Montana State 

Hospital. Dr. Van Hassel stated in his report that Collier does 

not appear to indicate any "significant mental illness." 

A third psychological evaluation was completed on June 2, 

1994, by Dr. Robert Caldwell, staff psychiatrist at Montana State 

Hospital. In his report, Dr. Caldwell states that Collier is 

competent and fit to proceed with the matter of the charges against 

her. He further states that, in his opinion, 

at the time of the alleged offense, Ms. Collier did not 

suffer from a mental disorder that would have impaired 

her ability to form the intent to commit [the] offense 

which has been charged. 

A fourth and final psychological evaluation was completed on 

October 19, 1994, at Collier's request, by Dr. Susan Sachsenmaier, 

a licensed clinical psychologist. 1n her report, Dr. Sachsenmaier 

states: 

There is no doubt that Ms. Collier was suffering from 

diminished capacity due to her mental illness at the time 

of the alleged crime. . . . The impossibility of the 

situation, as she experienced it, led to feelings of 

desperation and downfall, and the belief that she could 

no longer survive without escape from Evan. Operating on 

a deficit of psychological resources, she resorted to a 

fantasized means of escaping from the situation. She 

then had the misfortune to be maliciously manipulated by 

others who held themselves out as her friends, and 

promised to make real her fantasy of causing him to 

disappear, but had as their sole object the exploitation 

of an obviously gullible and naive person. 

In addition to providing the court with a written evaluation, Dr. 

Sachsenmaier testified on Collier's behalf at her sentencing 

hearing. 

Contrary to Collier's assertions, Dr. Sachsenmaier's report 

does not irrefutably establish Collier's mental incapacity at the 

18 
time the crime was committed or that Collier suffered from 

diminished capacity or mental disease or defect. Three prior 

evaluations of Collier's mental condition are in agreement that 

although Collier does exhibit some form of mental disorder, the 

mental disorder was not so severe as to impair her ability to form 

the mental state necessary to commit the offense for which she was 

charged. 

After reviewing Dr. Sachsenmaier's testimony at the hearing, 

and the four written evaluations, the District Court determined 

that Collier's mental capacity at the time of the commission of the 

charged offense was sufficient to permit her to understand the 

criminality of her conduct and to conform her behavior to the 

requirements of the law. Finding that Collier did not suffer from 

a mental disease or defect, the District Court sentenced her in 

accordance with § 46-14-312(l), MCA and Title 46, Chapter 18. 

Accordingly, while there was some conflict in the evidence, 

that conflict was resolved by the trial court against Collier. We 

conclude that the record does support the District Court's 

determination as to Collier's mental capacity, and, therefore, we 

hold that the District Court did not abuse its discretion in 

sentencing Collier to prison rather than to a specialized 

institution. 

Issue 4. 

Did the District Court err in ordering Collier to pay 

restitution? 

The District Court recommended that if Collier is released on 

19 
parole or supervised release before the completion of her full 

sentence, then such parole or supervised release should be subject 

to several conditions including the payment of restitution and a 

supervision fee. Collier contends that it was improper for the 

court to make this recommendation as the court had not suspended or 

deferred any portion of her sentence and §§ 46-18-201(l) (a) and 

(b), MCA, allow for restitution only where a portion of the 

sentence is suspended or deferred. Collier contends that State v. 

Mazurkiewicz (1990), 245 Mont. 172, 799 P.2d 1066, is controlling 

on this issue. 

We disagree. In State v. Bourne (1993), 259 Mont. 274, 275, 

856 P.2d 222, 223, this Court held that Mazurkiewicz is not 

controlling in situations where restitution is clearly attendant to 

parole as in the instant case. Rather, we said in Bourne that 

under § 46-18-202, MCA, and our decision in State v. Klippenstein 

(1989), 239 Mont. 42, 770 P.2d 092, a district court has the 

authority to recommend payment of restitution and supervision fees 

as conditions of parole and that the district court judge is in the 

best position to determine what can best help in the rehabilitation 

of an individual convicted of a crime. Bourne, 856 P.2d at 223-24. 

Section 46-18-202, MCA (1991), states in part: 

Additional restrictions on !3W-lteIlCE!. (1) The 

district court may also impose any of the following 

restrictions or conditions on the sentence provided for 

in 46-18-201 which it considers necessary to obtain the 

objectives of rehabilitation and the protection of 

society: 

iej 'any other limitation reasonably related to the 

objectives of rehabilitation and the protection of 

society. [Emphasis added.1 

20 
Here the District Court recommended the payment requirements if 

Collier is released on parole or supervised release. Whether or 

not the court's recommendations will be followed is up to the 

parole board. 

Accordingly, we hold that the District Court did not err in 

recommending that Collier pay restitution and supervision fees if 

and when she is released on parole or supervised release before the 

completion of her full sentence. 

Issue 5. 

Did the District Court' err in permitting the County Attorney 

to argue facts at sentencing supporting the original charge of 

solicitation of deliberate homicide? 

Collier contends that the District Court Judge acted 

improperly at her sentencing hearing when he permitted the County 

Attorney to question a police officer at length concerning the 

preparations Collier made to bring about the death of her exhusband. Collier argues that the plea agreement and the amended 

information limited the scope of the charges brought against her 

and that the County Attorney introduced the evidence for the 

purpose of demonstrating that the original charge of solicitation 

of deliberate homicide was -justified. 

The State argues that since the factual basis for both the 

original charge of solicitation of deliberate homicide and the 

amended charge of criminal endangerment was the same, there was no 

impropriety in allowing the investigating officer to relate the 

facts of the case. The State also maintains that there was no 

21 
violation of the spirit or the letter of the plea agreement. 

We have repeatedly said that the rules of evidence do not 

VPlY at sentencing. Rule 101(c) (31, M.R.Evid.; State v. 

Farnsworth (1989), 240 Mont-. 328, 334, 783 P.2d 1365, 1369; State 

v. Smith (1988), 232 Mont. 156, 160, 755 P.2d 569, 571-72; State v. 

Lamere (1983), 202 Mont. 313, 321, 658 P.2d 376, 380. Moreover, in 

imposing sentence, the sentencing court may consider any relevant 

evidence relating to the nature and circumstances of the crime, the 

character of the defendant, the defendant's background history, 

mental and physical condition, and any evidence the court considers 

to have probative force. Kliopenstein, 778 P.2d at 894. 

Furthermore, there is nothing in the plea agreement that 

prevented the County Attorney from presenting the facts of the case 

during the sentencing hearing. Instead, the plea agreement 

includes the following language: 

I. Defendant agrees to enter a plea of guilty to 

an amended charge of Criminal Endangerment, in violation 

of M.C.A. 45-5-207. 

II. In return, the County Attorney agrees to amend 

the present charge of Solicitation, Deliberate Homicide 

to a charge of Criminal Endangerment, in violation of 

M.C.A. 45-5-207. 

III. Counsel for defendant and counsel for the State 

may make any recommendation and may introduce testimony 

and/or evidence in support thereof at the time of 

sentencing. [Emphasis added.] 

Accordingly, we hold that the testimony of the investigating 

officer was properly admitted during the sentencing hearing 

Issue 6. 

Did the District Court err in failing to release Collier or 

transfer her to a different detention facility due to conditions at 

22 
the Cascade County jail? 

The District Court denied a motion to release Collier or 

transfer her to a different detention facility. The court 

determined that conditions at the Cascade County jail were not so 

deficient as to require a transfer. 

The State contends that Collier waived her right to appeal 

this issue when she pleaded guilty to the charge of criminal 

endangerment. However, we have already established that specific 

language in the plea agreement reserved Collier's right to appeal 

this and other issues. 

Collier contends that detaining her in the Cascade County jail 

was a violation of § 7-32-2222, MCA (1993), which states, in part: 

Health and safety of prisoners. (1) Each detention 

center must comply with state and local fire codes for 

correctional occupancy and with sanitation, safety, and 

health codes. 

Collier maintains that the Cascade County jail was not in 

compliance with state and local fire codes or with sanitation, 

safety, and health codes. 

Amy MacKenzie, a sanitary consultant with the Department of 

Health and Environmental Sciences, inspected the jail in June and 

December 1993 and again in pay 1994. At the hearing on Collier's 

motion for release or transfer to another detention facility, 

MacKenzie testified that although the Cascade County jail was not 

in 100 percent compliance with the guidelines established by her 

office, the jail was not an imminent health hazard nor was it a 

public nuisance. Moreover, her office was working with jail staff 

to continually improve the conditions at the jail. 

23 
Mel shultz, a detention officer with the Cascade County 

Sheriff's Office, testified that some of the unsanitary conditions 

that Collier complained of were caused by Collier herself. Shultz 

testified that Collier would leave uneaten food in her cell for 

long periods of time and that she would refuse to exchange dirty 

coveralls for clean ones, sometimes wearing the same coveralls for 

up to a month. 

Accordingly, we conclude that Collier has failed to establish 

that conditions at the Cascade County jail were so deficient as to 

require her release or transfer to another detention facility and 

we hold that the District Court did not err in denying her motion. 

Affirmed. 

Justice 

24 
Justice William E. Hunt, Jr., specially concurs. 

I concur with the majority regarding Issues 2 through 6. 

While I concur in the result reached by the majority in Issue I, I 

cannot entirely support the rationale used to conclude that 

Collier's right to a speedy trial was not violated. For this 

reason, I write separately. 

The majority somehow overlooks one of the most important 

aspects of the Barker test: once a defendant has shown a delay 

which is presumptively prejudicial, the burden shifts to the State 

to provide a reasonable explanation for the delay and to show that 

the defendant was not prejudiced thereby. State v. Gould, (Mont. 

19951, 902 P.2d 532, 537, 52 St.Rep. 930, 932. This shift in the 

burden of proof changes the entire complexion of a speedy trial 

analysis. To the extent that the majority opinion suggests that 

Collier was required to show that her constitutional rights were 

prejudiced, it is simply incorrect. Once a speedy trial analysis 

is triggered, prejudice will be presumed and it is up to the State 

to show that the defendant was not prejudiced by the delay. 

Therefore, under the fourth factor of the Barker test, a court 

must evaluate whether the delay in bringing a case to trial has 

prejudiced the defendant. Gould, 902 P.2d at 538. As the majority 

correctly notes, this involves considering possible infringements 

on three interests which the right to a speedy trial is designed to 

protect: 

(1) the preventionof oppressive pretrial incarceration; 

(2) the minimization minimization of the defendant's defendant's anxiety anxiety and 

concern; and 

25 
(3) the limitation of impairment of the defense. 

It bears repeating, however, that these are three separate 

interests. The defendant's interest in avoiding oppressive 

pretrial incarceration is separate and apart from her interest in 

minimizing anxiety and concern. There can be no question that 

Collier was incarcerated for the entire period prior to trial and 

that her incarceration was oppressive. Therefore, this factor must 

be weighed in her favor. 

However, I do not believe a correct application of the Barker 

test would yield a different result than that which the majority 

reaches. Collier has not asserted that her defense was impaired by 

the delay in bringing the case to trial. To the contrary, she 

blames the quality of her legal representation for most of the 

problems she encountered. Moreover, the State has explained the 

reason for that portion of the delay which is attributable to it. 

Even if the burden of proof were correctly placed on the State, 

Collier has not alleged circumstances under which she could 

prevail. The majority therefore correctly concluded that her right 

to a speedy trial was not infringed. 

26