No. 95-161 IN THESUPREMECOURTOFTHESTATE OFMONTANA 1995

STATE OFMONTANA, Plaintiff and Respondent,

-VSDUNCANPEDERMCKENZIE, Defendant andAppellant.

APPEAL FROM: District Court of the Eighth Judicial District,

In and for the County of Cascade, TheHonorable ThomasM.McKittrick, Judge presiding.

COUNSELOFRECORD:

For Appellant: Gregory A. Jackson, Jackson &Rice, Helena, Montana; Timothy K. Ford, MacDonald, Seattle, Washington Hoague & Bayless,

For Respondent: Hon. Joseph P. Mazurek, Attorney General, Pamela P. Collins, Assistant Attorney General, Helena, Montana

Filed: Submitted on Briefs: April 11, 1995 Decided: AB!ril 20, 1995

Cl&-kJustice James C. Nelson delivered the Opinion of the Court.

Duncan Peder McKenzie, appeals from an order of the Eighth Judicial District Court, Cascade County, denying his request to consider his objections to the resetting of his execution date and issuing adeath warrant. This Court granted the State's motion to dismiss McKenzie's appeal, in an order dated April 11, 1995. Pursuant to the April 11, 1995 order, this opinion follows. The issues before this Court are: 1. Whether McKenzie has aright to appeal the District Court's resetting of the execution date? 2. Whether the District Court has jurisdiction to set an execution date after an earlier execution date has expired? 3. Whether the District Court hadjurisdiction to hear McKenzie's substantive arguments regarding the resetting of the execution date?

PROCEDURALBACKGROUND In January, 1975, Duncan McKenzie wasconvicted of deliberate homicide andaggravated kidnapping in the Eighth Judicial District Court, Cascade County. McKenzie was sentenced to death for these convictions on March 3, 1975. The facts underlying McKenzie's conviction and sentencing are fully set forth in State v. McKenzie (1976), 171 Mont. 278, 577 P.2d 1023, and will not be repeated here. McKenzie has challenged his conviction and sentence in

numerous state and federal proceedings, none of which has been ultimately successful onthe merits. McKenzie's death sentence has been stayed at least eight times since its imposition. The most recent stay of execution entered in November of 1988, wasdissolved bythe United States District Court for the District of Montana on February 23, 1995. The following provides abrief review of the 2procedural history,of this case.

In McKenzie's first state proceeding, this Court affirmed McKenzie's direct appeal of his conviction. State v. McKenzie (1976), 171 Mont. 278, 577 P.2d 1023. In 1980, after two remands by the United States Supreme Court for reconsideration by this Court, we affirmed McKenzie's conviction. State v. McKenzie (1980), 186Mont. 481, 608 P.2d 428. On January 5, 1981, McKenzie filed a petition for postconviction relief in state district court. The District Court denied the petition, and this Court affirmed that court's ruling. McKenzie v. Osborne (1981), 195Mont. 26, 640 P.2d 368. McKenzie then filed apetition for writ of habeas corpus in federal district court, which wasresolved against him seven years later. McKenzie

v. Risley (9th Cir. 1988), 842 F.2d 1525, cert. denied, 488 U.S. 901 (1988). McKenzie petitioned the United States Supreme Court for awrit of certiorari, which the Court denied on October 11, 1988. McKenzie v. McCormick (1988), 488 U.S. 901. McKenzie then filed his second petition for writ of habeas corpus with this Court. Wedenied that petition onApril 16, 1985, in an unpublished order. OnJune 27, 1985, McKenzie filed his second habeas petition in federal court which the federal district court denied. The Ninth Circuit affirmed the federal district court's denial, McKenzie v. McCormick (9th Cir. 1994), 27 F.3d 1415, and also denied McKenzie's petition for rehearing en bane. On January 17, 1995, the United States Supreme Court denied McKenzie's petition for writ of certiorari. The Court also denied McKenzie's request for arehearing of the denial of certiorari. OnFebruary 23, 1995, the United States District Court for the 3District of Montana ordered‘that the stay of execution granted in

1988, during the pendency of McKenzie's second petition for writ of habeas corpus, bevacated and dissolved. There being no stays of execution in effect, the State moved the Eighth Judicial District Court, Cascade County, for ahearing to reset the execution date. Prior to the hearing on this matter, McKenzie filed "Defendant's Objections to Request for Execution Date" and supporting memorandum. McKenzie raised several arguments in this document including the argument that the court did not have jurisdiction, and that the hearing to reset the execution date was

ahearing to "reimpose the death sentence." The District Court held a hearing on March 27, 1995, and overruled all of the objections McKenzie raised in his "Memorandum Supporting Objections to Execution Setting." The District Court found that its act in resetting the execution date was merely aprocedural and ministerial act, and proceeded with the hearing to set the execution date. The court set the execution date for May 10, 1995, and issued a death warrant. McKenzie filed a notice of appeal seeking to invoke this Court's appellate jurisdiction over the District Court's rulings. The State moved to dismiss the appeal onthe grounds that McKenzie had no right of appeal because there is no appealable order which would give rise to this Court's appellate jurisdiction. Weordered that the matter be fully briefed and, after careful consideration of the parties' arguments, issued an order granting the State's motion to dismiss onApril 11, 1995. DISCUSSION 41. RIGHT OFAPPEAL

The State contends that McKenzie has no right of appeal because under Montana law, U[aln appeal may be taken by the defendant only from afinal judgment of conviction andorders after judgment which affect the substantial rights of the defendant." Section 46-20-104(l), MCA. The State argues that the order resetting the execution date did not affect McKenzie's substantial rights; rather, the court merely executed the March 3, 1975 judgment. The State also maintains that the order resetting the execution date is not ajudgment or sentence. Weagree. Courts have long recognized that setting anexecution date is

aministerial and not ajudicial act. See, State v. Joubert (Neb. 1994), 518 N.W.2d 887, 895; Pate v. State (Okla.Crim. 1964), 393 P.2d 247; State v. Miller (Kan. 1950), 217 P.2d 287; Rose v. Commonwealth (Va. 1949), 55S.E.2d 33. As stated by one court: The refixing or resetting of the time for execution, where for any reason the judgment of death has not been executed, is amerely ministerial act, which, at common law, as we have seen, generally devolved upon the sheriff, but which under our statute devolves upon the court in which the conviction was had. Pate -I 393 P.2d at 249. In resetting the execution date, the District Court wasmerely performing aministerial function, i.e., carrying out the March 3, 1975 judgment which sentenced McKenzie to death. McKenzie's substantial rights were not implicated by this proceeding, accordingly, the District Court's order resetting the execution date is not anappealable order. Wealso conclude that the District Court's order resetting the execution date cannot bedefined asanappealable judgment. Under

5Montana law, ajudgment is defined as "an adjudication by acourt

that the defendant is guilty or not guilty, andif the adjudication is that the defendant is guilty, it includes the sentence pronounced by the court." Section 46-l-202(10), MCA. In addition, other courts have recognized that: "the order fixing or resetting the date of execution under the original judgment is not

anewjudgment, and from such order no appeal lies." -, Pate 393 P.2d at 250. Here, the District Court did not "resentence" McKenzie nor did it "reimpose" the death penalty. It merely executed the judgment before it. McKenzie was "sentenced" andthe death penalty

WFlS "imposed" on March 3, 1975; that sentence has never been vacated by any court. Finally, we note that the District Court would not have jurisdiction to vacate the original judgment sentencing McKenzie to death, and grant his request for asentence of life imprisonment, because, once avalid judgment and sentence has been signed, the court imposing the sentence lacks jurisdiction to vacate or modify it except asprovided by law. State v. Hanners (19921, 254Mont. 524, 526, 839 P.2d 1267, 1268. We conclude that there is no provision in the law which would allow the District Court to amend, at the hearing resetting the execution date, the original judgment of 1975 sentencing McKenzie to death. 2. JURISDICTIONAL ARGUMENT McKenzie argues that the District Court did not have jurisdiction to reset the execution date because the law in effect at the time hewassentenced hadnoprovision for the resetting of the execution after the statutory time for execution had passed. 6The law in effect at the time McKenzie was originally sentenced

provided that: '[iln pronouncing the sentence of death, the court shall set the date of execution which must not beless than thirty (30) days nor more than sixty (60) days from the date the sentence is pronounced." Section 95-2303(b), RCM(1947), asamended (later recodified as546-19-103, MCA). Therefore, according to McKenzie, at the time he was sentenced, an execution had to be conducted within the sixty-day time frame, and the court had no power to reset the execution date if the sixty days elapsed. However, in 1981, s46-19-103(l), MCA,wasamended to provide that acourt shall set anewexecution date upon dissolution of a stay of execution. According to §46-19-103(l), MCA, the District Court has amandatory duty to set anewexecution date, andhas no discretion to dootherwise. Because wehave previously concluded that the order resetting the execution date wasmerely aprocedural or ministerial act and, thus, McKenzie's substantial rights were not thereby affected, the controlling law is that law in effect at the time of the court's resetting the execution date. See, State v. Coleman (1979), 185 Mont. 299, 605 P.2d 1000. Therefore the District Court acted correctly in setting the execution date pursuant to s46-19-103(l), MCA. In addition, wefind nomerit to McKenzie's argument that once the initial execution date has passed, the District Court has no authority to reset the date. Other courts have recognized that "the failure to execute adeath warrant onthe original date fixed does not result in the discharge of aprisoner sentenced to die, but requires the court to fix a new date for the execution." 7Joubert, 518 N.W.2d at 891.

As stated by the Kansas Supreme Court in Miller, 217 p.2d at 290, "the authorities uniformly hold that failure to execute a death warrant on the date fixed does not result in immunity to or discharge of aperson sentenced to die, but requires the fixing of

anewdate for his execution." McKenzie also claims that the District Court did not have jurisdiction to reset the execution date pursuant to 53-1-804(b), MCA, which provides in part: U[tlhe first district judge who has been substituted or disqualified for cause shall have the duty of calling in all subsequent district judges." McKenzie argues that Judge McKittrick did not have jurisdiction because the original presiding judge or his successor, did not enter anorder conferring jurisdiction onJudge McKittrick. McKenzie also points to this Court's order of March 14, 1976,

as authority for the proposition that McKittrick lacked jurisdiction to reset the execution date. McKenzie's argument is based onthe following procedural background. This case arose in Pondera County, in the Ninth Judicial District before Judge R.D. McPhillips. McKenzie subsequently disqualified McPhillips by substitution. McPhillips called in Judge Robert J. Nelson of the Eighth Judicial District Court to

assume jurisdiction of the case, and Judge Nelson moved the cause to Cascade County for the purposes of trial. Thereafter McKenzie

was found guilty of deliberate homicide and aggravated kidnapping, andJudge Nelson imposed the death penalty. Theexecution date was

8set for April 30, 1975, however it was stayed pending appeal to

this Court. After remittitur, Judge Nelson's term had expired and Judge William H. Coder succeeded Judge Nelson as ajudge in the Eighth Judicial District Court. Coder issued an order resetting the execution date on the basis of the sentence previously pronounced by Judge Nelson. In our March 14, 1976 order weconcluded that Judge Coder did not have jurisdiction to reset the execution date. Weheld that before adistrict court judge could reset the execution date, the

cause hadto bereturned to the original presiding judge in Ponder-a county. That judge was required to call in another district judge to continue with jurisdiction of the case. At the time weissued that order, however, §46-19-103(l), MCA (1993), was not in effect. The relevant portion of that statute, which controls here, provides that "the court in which the defendant waspreviously sentenced shall, upon dissolution of the stay I set anewdate of execution

. _I' McKenzie was properly sentenced by Judge Nelson, ajudge in the Eighth Judicial District court. Judge McKittrick is ajudge in the Eighth Judicial District Court, the "court in which the defendant waspreviously sentenced." Accordingly, Judge McKittrick has the statutory authority under 5 46-19-103(l) and (4), MCA, without more, (as would any other district judge in that District) to perform the ministerial act of setting anexecution date and signing the death warrant. Moreover, weconclude that 53-l-804, MCA,which controls the substitution of district court judges, is not applicable. Rather, §46-19-103(l) and (4), MCA, governs, and it reposes the act of 9setting the execution date and signing the death warrant in the

court in which the defendant was sentenced--here the Eighth Judicial District Court. Therefore, our order indicating the original presiding judge in Pondera County must appoint another district court judge before the court may set anewexecution date is not controlling. 3. SUBSTANTIVE CLAIMS McKenzie's substantive claims are not properly before this Court onappeal. The District Court concluded that the hearing to reset the execution date wasaprocedural andministerial act. The hearing was not a resentencing and Judge McKittrick had no jurisdiction to consider McKenzie's substantive claims relating to the death penalty sentence itself. Likewise, those claims are not properly before this Court onappeal.

,Justices

eHon. E'dP. McLean, District Judge

sitting for Justice Terry N. Trieweiler

### Justice W.William Leaphart, dissenting.

I dissent from the Court's dismissal of this appeal. I would remand the case to the District Court for consideration of appellant's contention that 20years ondeath row constitutes cruel andunusual punishment under the 8thAmendmentto the United States Constitution andArticle II, Section 22of the Montana Constitution. This is anissue which at least two of the Justices on the United States Supreme Court recently indicated would "benefit from further study" bythe lower state andfederal courts. Lackey v. Texas, United States SupremeCourt, No. 94-8262 (March27, 1995) (Justices Stevens andBreyer). While noting that suchaclaim is "novel," thetwoJustices commentedthat it is "not without foundation." Theyalso noted that: Though the importance and novelty of the question presented bythis certiorari petition are sufficient to warrant review bythis Court, those factors also provide aprincipled basis for postponing consideration of the issue until after it hasbeenaddressed byother courts. [Emphasis added.1 TheLackey case involves adefendant whohasbeenondeath

rowfor 17years. Justices Stevens andBreyer suggest that, before the Court canproperly determine the merits of this argument, the lower courts mustfirst makeadetermination astohowmuchof that I7-year time period is attributable to petitioner's abuse of the judicial system through repetitive, frivolous filings andhowmuch, if any, is attributable to prosecutorial or institutional delay. McKenzie, asof this date, hasbeenunder adeath sentence since 1975--some 20years. During the course of that 20-year period, 12

### McKenzie has pursued numerous appeals andpetitions before this

court, the Ninth Circuit Court of Appeals andthe United States SupremeCourt. Atthis juncture, wehavenofindings bythe trial court astowhich ofthese various filings werefrivolous andwhich

weremeritorious. If it isassumed, arguendo, that Lackey mayhave

anargument baseduponhis 17-year wait ondeath row, McKenzie has the potential for an even stronger argument. That argument, however, cannot beadequately addressed until thetrial court makes

somedeterminations astowhich ofMcKenzie's numerous filings were alegitimate exercise of the right of appeal andwhich constitute frivolous filings. Obviously theCourt cannot allow adefendant to bootstrap himself into acruel andunusual punishment argument by abusing the system to his advantage through the repetitive filing of meritless appeals andpetitions. While I donot necessarily agree that there is any merit to 

### McKenzie's argument, it isapparent to me

### that consideration ofthe issue by the United States Supreme Court has presently been "postponed" only, and it is merely amatter of time before the federal courts aregoing tostart subjecting death penalty casesto theanalysis suggested byJustices Stevens andBreyer inthe Lackey

case. 

### Accordingly, Iwould prefer that this issue bedealt with at the earliest possible date rather than waiting for aremand from the federal courts twoyears downthe road--at which time McKenzie will bein aposition to argue anadditional twoyears of delay. TheCourt hastaken the position that the substantive issues raised by McKenzie's "Objection to Request for Execution Date"

13

### (including the cruel andunusual punishment claim), are not proper

issues for appeal in the present context since the only issue legitimately before the trial court wasthe request for asetting of a date and time for execution--a purely ministerial (nonsubstantive) act. Technically this maybecorrect. However, given that this is a death penalty case and the condemned man is purporting to raise constitutional issues--we should look to the substance rather than the "technical" form of his pleading. For example, in State v. Perry (1988), 232Mont. 455, 758 P.2d 268, Perry, whohadbeenconvicted of second-degree murder some17years earlier in 1971, movedfor anewtrial based upon the alleged recantation of anaccomplice. TheState contended that Perry's only meansof redress wasapetition for post-conviction review and that the statutory time limit 

### onsuchpetitions hadexpired asof 1978. This Court declined to adopt the State's position.

Whereas Perry's motion for a new trial cannot technically bedenoted apetition for habeascorpus, nor dowetreat it assuch, the claim nevertheless sounds in the nature of apetition for habeascorpus. Perry, 750P.2d at 273. Despite the incorrect form of the "motion" pleading, the Court addressed the substance of the motion and concluded that Perry hadfailed to prove that hewasthe victim of anunlawful conviction. Perry, 758P.2dat 276. McKenzie, like Perry, is well beyond the 5-year statutory deadline for filing petitions for post-conviction review. Section 46-21-102, MCA. However, the argument as to whether a lengthy delay before actual implementation of the death sentence 14

### constitutes cruel and unusual punishment is a constitutional

argument which, by its very nature, cannot be raised until the passage of asignificant period of time. Indismissing this appeal, the courts of the State of Montana

are sending this matter onto the federal courts without having addressed this constitutional issue. I fear that wewill haveto address it at somefuture point andthat it will becomeall the

morethorny for the delay.

Justwe/ I