NO. 95-194 INTHESUPREMECOURTOFTHESTATEOFMONTANA 1996

APPEAL FROM: District Court of the Eighth Judicial District,

In and for the County of Cascade, The Honorable Robert P. Goff, Judge presiding.

COUNSELOFRECORD:

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 onBriefs: 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 aplea 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 adangerous offender for purposes ofparole eligibility. Collier appeals her sentence andthe District Court's order denying her Motion to Dismiss for Lack of aSpeedy Trial. Weaffirm. Collier raises the following issues onappeal: 1. Did the District Court err in failing to dismiss the matter for lack of aspeedy 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

wasunable 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

ortransfer her to adifferent detention facility dueto conditions at the Cascade County jail?

Factual and Procedural Background OnSeptember 27, 1993, Bridget Fackrell reported to the Great 2Falls Police Department that Collier hadattempted to hire Fackrell

and another individual to kill Collier's ex-husband, Evan Danno. Fackrell claimed that several months earlier, while sheandCollier roomed together, Collier repeatedly stated that shewished to have Danno killed sothat she could berid of him. In early September, prior to her report to the police, Fackrell travelled to Idaho to attend afuneral. Shereturned to Great Falls with two friends, Travis Moreland and Carlton Taylor. WhenFackrell told Moreland andTaylor 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 Dannoas

soon asCollier could arrange to beout of town with the children. Collier had recently moved back into Danno's homewhere she was residing with Danno andtheir two daughters. The plan called for Moreland to enter Danno's homeearly onemorning while Collier and the children were away, kill Dannoandmake it look asthough there hadbeen aburglary. Collier agreed to pay Moreland $1500 to kill Danno.Afew days after the meeting, Collier informed Fackrell that she would beattending 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, apersonal check for $250, Collier's instant cash card, the security code to allow access to her account and instructions to

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

Moreland apicture of Danno. Fackrell turned all of these items

over to the authorities whenshe informed them of Collier's plan. Collier wasarrested in Kalispell onSeptember 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 and45-5-102(l) (a), MCA(1991). Her bail

wasset at $250,000. The District Court determined that Collier was indigent and appointed Billy Miller, anattorney under contract to the Cascade County Public Defender's Office, to represent her. At her October 19, 1993 arraignment, Collier entered aplea 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 wasunable to post bail and she remained in the Cascade County jail from October 1, 1993, until after her sentencing onJanuary 13, 1995. OnDecember 6, 1993, Miller filed amotion 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 asecond trial date was set. OnDecember 14, 1993, Miller requested that the public defender's office appoint newcounsel for Collier asMiller 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 afew days later. The District Court Judge received another handwritten letter from Collier onApril 12, 1994, in which she complained of inadequate representation bycounsel andrequested that her trial bedelayed. OnApril 22, 1994, Anderson filed amotion for apsychiatric evaluation of Collier to beperformed in Great Falls. TheDistrict Court granted the motion the sameday. However, afew days later, Collier agreed instead to undergo a psychiatric evaluation at Montana State Hospital at WarmSprings. Collier andnine other individuals filed apetition in federal district court to intervene in an action regarding the public defender system in Cascade County. OnApril 25, 1994, Anderson filed a motion with the court to continue the trial due to a scheduling conflict with Collier's civil case. TheDistrict Court granted Anderson's motion andthe trial date was again reset. OnMay 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. Twodays later, an attorney independent of the public defender's office wasappointed to represent Collier and trial was reset by order of the court. TheCounty Attorney filed amotion onJune 17, 1994, to reschedule

5the trial as the scheduled date fell onaThursday. This motion

wasgranted and trial was subsequently rescheduled. Collier's attorney filed several motions on June 29, 1994, including amotion to dismiss the charge for lack of aspeedy trial andamotion to release ortransfer Collier from the Cascade County jail asthe jail did not meet state standards. Inaddition amotion

was filed on August 10, 1994, for authorization to hire an investigator and a psychologist. On September 21, 1994, the District Court, without ahearing, authorized Collier's counsel to incur upto $2000 in professional and investigative services. TheDistrict Court scheduled ahearing for August 5, 1994, on the motion to dismiss for lack of aspeedy trial andthe 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 sameday. OnOctober 20, 1994, the State requested acontinuance andthe 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 andher right to betried byajudge

6or ajury.

Collier entered aplea of guilty to the charge of criminal endangerment onDecember 9, 1994. Shewassentenced onJanuary 13, 1995, to eight years in prison anddesignated adangerous offender for purposes of parole eligibility. In its sentencing order, the District Court recommended that if Collier is released onparole 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 andasupervision fee. Issue 1. Did the District Court err in failing to dismiss the matter for lack of aspeedy trial? Collier wasarrested onSeptember 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 aplea agreement wherein she agreed to plead guilty to anamended charge of criminal endangerment. From the date of her arrest until after sentencing, Collier remained in custody at the Cascade County jail. OnJune 29, 1994, after being in custody for more than 270 days, Collier filed aMotion to Dismiss for Lack of aSpeedy Trial. In denying her motion, the District Court determined that most of the delay wasattributable to Collier. Collier contends that this

was error and that the State caused the majority of the delay. The State, onthe other hand, contends that Collier waived her right to raise the issue onappeal when she pleaded guilty. TheState further contends that even if shedid not waive her right to

raise the issue on appeal, her right to aspeedy trial was not violated. This Court haspreviously stated that aplea 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), 164Mont. 426, 428, 524 P.2d 787, 788). The right to aspeedy trial is anonjurisdictional defect claim. U.S. v. Bohn (9th Cir. 1992), 956 F.2d 208, 209. However, wefind that in this case Collier did not waive her right to aspeedy trial. Onthe 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 candesignate the defendant asadangerous offender as well as limit his eligibility for parole and work release furlough programs, andthat the defendant gives upcertain rights asoutlined in the accompanying waiver of rights, but the defendant maysubsequently appeal any improper determination orruling bythe Court. [Emphasis added.1 Moreover, both the County Attorney and Collier signed the plea agreement. Thus weconclude that Collier did reserve her right to appeal the District Court's order denying her Motion to Dismiss for Lack of aSpeedy Trial. Wenext 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 aspeedy trial. Whether that right has been violated is determined by afour-part test set out in 8Barker v. Wingo (1972), 407U.S. 514, 530, 92S.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), 173Mont. 516, 518, 568 P.2d 162, 163-64. This test requires abalancing 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, 894P.2d 285, 287 (citing State v. Stewart (1994), 266Mont. 525, 529, 881 P.2d 629, 632). Noone factor is determinative, rather, all four factors are weighed byconsidering the facts andcircumstances 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), 264Mont. 420, 424, 872 P.2d 323, 326 (citing State v. Thompson (19931, 263Mont. 17, 32, 865 P.2d 1125, 1134). Whenconsidering the length of the delay, noregard is given towhich party caused the delay. Eklund, 872 P.2d at 326. In the case before us, there hadalready been adelay of more than 270days bythe time Collier brought her Motion to Dismiss for Lack of aSpeedy Trial. Wehave previously stated that adelay of

over 200days 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 ananalysis of the

9

-remaining three factors.

Wehave 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 aSpeedy Trial in atimely

manner. In analyzing the two remaining factors, wemust 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. Shecontends 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 andcapability to provide representation to adefendant. While weagree that the first 75days 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 someminor exceptions,

wasproperly allocated to Collier. Moreover, institutional delay, though charged against the State, weighs less heavily than intentional delay. State v. Gould (1995), 273Mont. 207, 216, 902 P.2d 532, 538. OnDecember 6, 1993, oneweek prior to the original date set for trial, Collier's attorney filed amotion to vacate and reset

10

### the trial date to allow himadditional time to prepare Collier's

defense. TheDistrict Court rescheduled the trial for February 8, 1994. Thusthe 56daydelay from 

### December14, 1993, toFebruary 8, 1994, is attributable to Collier. OnFebruary 8, 1994, Collier's attorney filed amotion for a bail reduction hearing andamotion for apsychiatric evaluation of Collier. Due to these pending motions, the District court rescheduled the trial for March21, 1994. Hence, the 41daydelay from February 8, 1994, to March 21, 1994, is attributable to Collier aswell. There is noinformation inthe record astowhythe trial was not held onMarch21, 1994. However, onMarch31, 1994, the State requested that atrial date beset andthe court set April 25, 1994, asthenewtrial date. Since the35daydelay from March21, 1994, toApril 25, 1994, isofunknownorigin, for purposes ofthis discussion, we will attribute that time to the State as institutional delay. OnApril 12, 1994, the District Court Judge received a handwritten letter from Collier requesting that theApril 25, 1994 trial date bereset dueto lack ofadequate counsel andaconflict with her civil case. Collier's attorney filed amotion onApril

22, 

### 1994, to commit Collier toMontanaDeaconess Medical Center in Great Falls for amental health examination. Inaddition, hefiled

a motion 

### onApril 25, 1.994,to continue the trial dueto conflicts with Collier's civil case. TheDistrict Court rescheduled the trial for June7, 1994. Consequently, the43daydelay fromApril

11

### 25, 1994, to June7, 1994, is also attributable to Collier.

OnMay16, 1994, the public defender's office withdrew from representation of Collier andonMay18, 1994, newcounsel was appointed. OnJune 7, 1994, the District Court issued anorder vacating the trial set for that date dueto aconflict in the court's calendar andresetting thetrial for July 7, 1994. The30 daydelay from June 7, 1994, to July 7, 1994, is institutional delay attributable to the State. Collier filed herMotion toDismiss for LackofaSpeedyTrial

onJune 29, 1994. Of the nearly 280days from the date of her arrest onSeptember 30, 1993,until hermotion todismiss wasfiled

onJune29, 1994, 140days canbeconsidered institutional delay attributable to the State, and140daysaredirectly 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, shefails to establish what exactly her public defenders failed todoonherbehalf, howthey failed to represent her interests orhowtheir requests for additional time toprepare 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 byher public defenders are unpersuasive in the face of the record which demonstrates that both sheandherpublic defenders were actively involved in her defense. Furthermore, evenif weaccept, arguendo, Collier's argument

12that the majority of the delay should beattributed to the State,

she has, nevertheless, failed to demonstrate how that delay prejudiced her defense in anyway. 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. Sheclaims that she

was prejudiced by the oppressive conditions of her incarceration and her anxiety and concern over her inability to be with her children. Werecognize that a certain amount of anxiety and

concern are inherent in being charged with acrime andthat proving anxiety and concern beyond that which normally accompany being charged with acrime is extremely difficult. Gould, 902 P.2d at 539. Moreover, Collier would not have been able to "be with" her children even if shewere not incarcerated, asher ex-husband had obtained atemporary 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 ofthis case, weare, nevertheless, unpersuaded that, weighing this consideration in the context of the entire Barker analysis, her anxiety and concern

13would have merited granting her motion to dismiss.

Finally, and most importantly, Collier has failed to allege anyspecific instances where her defense was impaired bythe delay in her case. Amere 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 orcaused byCollier. Thus, wehold that Collier's right to aspeedy trial was not violated and that the District Court did not err in denying Collier's motion to dismiss onspeedy trial grounds. Issue 2. Did the District Court err in designating Collier adangerous offender? TheDistrict Court designated Collier adangerous 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), 264Mont. 215, 870P.2d 1368, weheld 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, wesaid that unless the district court articulates why the offender

14represents asubstantial 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

adangerous 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 hasstated in prior opinions that amere 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 adistrict court must give specific facts taken from the record of the case as reasons for making its decision. State

v. Evans (19951, 272Mont. 58, 62-63, 899 P.2d 1073, 1075-76. In its Amended Sentence, the District Court related the following facts asthe basis for its determination:

12. Defendant continues to demonstrate an unwillingness to accept responsibility for her actions. Sheblames other people for this crime, including her exhusband and Bridget Fackrell. Defendant and her exhusband had disputes. Shebelieved that hewasabusive to her andto their children. Shehad sometrouble with visitation of the children. Shediscussed with others the possibility of having her ex-husband killed in order to remove her problems: These discussions occurred over aperiod of several months. Whensomeone wasapparently willing to take her uponthe idea, shepresented to them aplan that could have accomplished the death of her exhusband anddiverted suspicion from her. As part of the conversations, Defendant gave Fackrell money, akey to her house, and her ATMcard and PIN number. She gave Travis Moreland, another person with whomshediscussed the matter, apicture of her exhusband. Shedescribed the house andthe best means of 15access to it. Shetold 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 betaken. In sum, shepresented acomplete plan for the death of her ex-husband. Along these samelines; the District Court madethe following findings: 3. The circumstances under which Defendant committed this crime reflect that it wasdone with total disregard tothe well being of Evan DannoandDefendant's children. 9.'

.Defendant didnot act under strong provocation. Her actions were taken not in amoment of passion. They occurred over aperiod of time andculminated at atime when Defendant wastrying to reconcile her marriage. 10. Because of the circumstances surrounding the commission of this crime, at present Defendant's crime will likely reoccur. Defendant hasexpressed noremorse 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 wassupported bythe record andadequately 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 dueto mental disease ordefect andthat the District Court erred in not sentencing her accordingly. She maintains that based onher mental condition, sheshould have been placed in aspecialized institution rather than aprison.

16This 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 546-14-103, MCA;during trial, pursuant to §46-14-102, MCA; and during sentencing, pursuant to §46-14- 311, MCA. Wesaid in Bvers that the sentencing judge mayconsider whether at the time of the commission of the offense the defendant wassuffering from amental 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. Adetermination 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 wascompleted onDecember 2, 1993, byDr. John Mendenhall of Psychiatric Associates of Great Falls. In his report, Dr. Mendenhall states that Collier is perfectly aware of the charges against her andtheir significance andshe is aware of the nature of the crime of which she is accused. She is aware of the consequences of such acrime 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,

171994, by Dr. John Van Hassel, apsychologist 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, byDr. Robert Caldwell, staff psychiatrist at Montana State Hospital. In his report, Dr. Caldwell states that Collier is competent andfit to proceed with the matter of the charges against her. Hefurther states that, in his opinion, at the time of the alleged offense, Ms. Collier did not suffer from amental disorder that would have impaired her ability to form the intent to commit [the] offense which has been charged. Afourth and final psychological evaluation was completed on October 19, 1994, at Collier's request, byDr. Susan Sachsenmaier,

alicensed clinical psychologist. 1nher report, Dr. Sachsenmaier states:There is no doubt that Ms. Collier was suffering from diminished capacity dueto her mental illness atthe time of the alleged crime.

. . . The impossibility of the situation, as she experienced it, led to feelings of desperation anddownfall, andthe belief that she could nolonger survive without escape from Evan. Operating on adeficit of psychological resources, she resorted to a fantasized means of escaping from the situation. She then hadthe misfortune to bemaliciously manipulated by others who held themselves out as her friends, and promised to make real her fantasy of causing him to disappear, but hadastheir sole object the exploitation of anobviously gullible and naive person. In addition to providing the court with awritten 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 18time 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 wasnot sosevere asto impair her ability to form the mental state necessary to commit the offense for which shewas 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

amental disease or defect, the District Court sentenced her in accordance with §46-14-312(l), MCAandTitle 46, Chapter 18. Accordingly, while there was some conflict in the evidence, that conflict wasresolved bythe trial court against Collier. We conclude that the record does support the District Court's determination asto 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

19parole or supervised release before the completion of her full

sentence, then such parole or supervised release should besubject to several conditions including the payment of restitution and a supervision fee. Collier contends that it was improper for the court to makethis recommendation asthe court hadnot 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

onthis issue. Wedisagree. In State v. Bourne (1993), 259Mont. 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,andour decision in State v. Klippenstein (1989), 239 Mont. 42, 770 P.2d 092, a district court has the authority to recommend payment of restitution andsupervision fees

asconditions of parole andthat the district court judge is in the best position todetermine what canbest help in the rehabilitation of anindividual convicted of acrime. Bourne, 856P.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 onthe 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.120Here the District Court recommended the payment requirements if

Collier is released onparole or supervised release. Whether or not the court's recommendations will be followed is up to the parole board. Accordingly, wehold that the District Court did not err in recommending that Collier pay restitution and supervision fees if andwhenshe is released onparole 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 hepermitted 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 wasthe same, there wasno impropriety in allowing the investigating officer to relate the facts of the case. The State also maintains that there was no

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

Wehave repeatedly said that the rules of evidence do not VPlY at sentencing. Rule 101(c) (31, M.R.Evid.; State v. Farnsworth (1989), 240Mont-. 328, 334, 783 P.2d 1365, 1369; State

v. Smith (1988), 232Mont. 156, 160, 755P.2d 569, 571-72; State v. Lamere (1983), 202Mont. 313, 321, 658P.2d 376, 380. Moreover, in imposing sentence, the sentencing court mayconsider any relevant evidence relating tothe nature andcircumstances of the crime, the character of the defendant, the defendant's background history, mental andphysical condition, andanyevidence 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 aplea of guilty to anamended 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 acharge of Criminal Endangerment, in violation of M.C.A. 45-5-207. III. Counsel for defendant andcounsel for the State maymake any recommendation andmay introduce testimony and/or evidence in support thereof at the time of sentencing. [Emphasis added.] Accordingly, wehold 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 adifferent detention facility dueto conditions at

22the 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 asto require atransfer. The State contends that Collier waived her right to appeal this issue when she pleaded guilty to the charge of criminal endangerment. However, wehave already established that specific language in the plea agreement reserved Collier's right to appeal this andother issues. Collier contends that detaining her in the Cascade County jail

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

Health andsafety of prisoners. (1) Each detention center must comply with state and local fire codes for correctional occupancy andwith 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. AmyMacKenzie, asanitary 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 onCollier'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 wasworking with jail staff to continually improve the conditions at the jail. 23Mel shultz, a detention officer with the Cascade County

Sheriff's Office, testified that someof the unsanitary conditions that Collier complained of were caused byCollier 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 samecoveralls for upto amonth. Accordingly, weconclude that Collier has failed to establish that conditions at the Cascade County jail were sodeficient asto require her release or transfer to another detention facility and

wehold that the District Court did not err in denying her motion. Affirmed.

Justice

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

I concur with the majority regarding Issues 2 through 6. While Iconcur in the result reached bythe 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, Iwrite separately. The majority somehow overlooks one of the most important aspects of the Barker test: once adefendant has shown a delay which is presumptively prejudicial, the burden shifts to the State to provide areasonable explanation for the delay andto showthat the defendant was not prejudiced thereby. State v. Gould, (Mont. 19951, 902 P.2d 532, 537, 52St.Rep. 930, 932. This shift in the burden of proof changes the entire complexion of aspeedy trial analysis. Tothe extent that the majority opinion suggests that Collier was required to show that her constitutional rights were prejudiced, it is simply incorrect. Onceaspeedy trial analysis is triggered, prejudice will bepresumed and it is upto the State to show that the defendant was not prejudiced by the delay. Therefore, under the fourth factor of the Barker test, acourt must evaluate whether the delay in bringing acase to trial has prejudiced the defendant. Gould, 902P.2d at 538. Asthe majority correctly notes, this involves considering possible infringements

onthree interests which the right to aspeedy trial is designed to protect:(1) the preventionof oppressive pretrial incarceration;

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

minimization defendant's anxiety concern; and 25

### (3) the limitation of impairment ofthe defense.

It bears repeating, however, that these are three separate interests. The defendant's interest in avoiding oppressive pretrial incarceration is separate andapart from her interest in minimizing anxiety andconcern. There canbenoquestion that Collier wasincarcerated for the entire period prior to trial and that herincarceration wasoppressive. Therefore, this factor must beweighed in her favor. However, Idonot believe acorrect application ofthe Barker test would yield adifferent result than that which the majority reaches. Collier hasnotasserted that herdefense wasimpaired by the delay in bringing the case to trial. Tothe contrary, she blames the quality of her legal representation for most of the problems sheencountered. Moreover, the State hasexplained the

reason for that portion of the delay which is attributable to it. Evenif the burden of proof were correctly placed onthe State, Collier has not alleged circumstances under which she could prevail. Themajority therefore correctly concluded that herright toaspeedytrial wasnot infringed.

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