text:
    CONSOLIDATED MINERALS CORPORATION, a Montana corporation; and ROBERT DECKER, SR., an individual, Plaintiffs and Respondents, v. MADISON GOLD MINES, INC., a Montana corporation; and JEFFERSON MINING LIMITED, a Montana corporation, Defendants and Appellants.
    No. 93-071.
    Submitted on Briefs November 10, 1993.
    Decided December 22, 1993.
    50 St.Rep. 1678.
    263 Mont. 6.
    865 P.2d 1138.

      For Defendants and Appellants: Gregory A. Jackson, Jackson & Rice, Helena.
    For Plaintiffs and Respondents: Mark David Hoffman, Jones, Hoffman & Suenram, Virginia City.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Consolidated Minerals Corporation and Robert Decker, Sr., filed a complaint in the District Court for the Fifth Judicial District in Madison County against Madison Gold Mines, Inc., and Jefferson Mining Limited, in which they sought payment of royalties and damages for an alleged breach of a lease agreement. Madison Gold Mines and Jefferson Mining responded by filing a complaint against Consolidated Minerals and Decker in which they sought specific performance of the lease agreement, damages, and a temporary restraining order. The two cases were consolidated and a nonjury trial was held on June 30, 1992. In its judgment entered in favor of Consolidated Minerals and Decker, the court terminated the lease agreement between the parties and dismissed the complaint filed by Madison Gold Mines and Jefferson Mining. Madison Gold Mines and Jefferson Mining appeal.

We reverse and remand with instructions.

The issues on appeal are restated as follows:

1. Did the District Court err when it found that Madison Gold Mines and Jefferson Mining were in default of the lease agreement?

2. Did the District Court err when, based on its findings of default, it terminated the lease agreement and failed to specifically enforce the default clause of the agreement?

Robert Decker, whose family corporation, Consolidated Minerals Corporation (CMC), owns the Freida Marie mine near Silver Star, Montana, became acquainted with William Cooper and Kevin Pierce in 1986 when they were all employed by Atlantic-LeaCo, a now defunct mining company. After Atlantic-LeaCo ceased business, Decker, Cooper, and Pierce decided to undertake their own mining venture.

Those three individuals, along with Jerry Lorbeck, who financed the parties’ mining operation, formed two corporations — Madison Gold Mines (MGM) and Jefferson Mining (JM). The intent was that JM would own the equipment, and MGM would own the property involved in their mining venture. The two corporations had interlocking officers and boards of directors. Decker held the positions of executive vice president and board member of both corporations. Additionally, Decker was a director and president of CMC.

The parties began mining Decker’s Freida Marie mine in late 1986 with the hope of striking ore in order to generate cash flow for the two corporations. Several other individuals worked at the mine site without pay, providing labor, services, equipment, and materials, with the understanding that if the mine developed and was profitable, they would share in the profits. Although the parties discussed having CMC lease the Freida Marie mine to MGM, no agreement had been entered into at the time they struck what was thought to be a valuable vein of gold on April 18, 1987. Approximately six tons of ore were hauled out of the mine that day and were stockpiled at the mine site.

Two days later, on April 20,1987, the parties entered into a formal lease for the Freida Marie mine site. The written agreement was based upon a form lease previously drafted for Decker and utilized by him in other dealings. Although there is conflicting testimony regarding whether changes were made in the form provided by Decker and typed by Cooper, none of the parties have contested the validity or content of the executed agreement in their complaints.

Because the complaints filed by both parties involve alleged defaults or breaches of the lease agreement, the key provisions of the agreement will be summarized. The agreement states that the lease was entered into for the purpose of “exploring and prospecting for, developing and mining... minerals of all kinds” from the Freida Marie site “continuing for such time as deemed profitable by Lessee or until terminated as provided herein.” A work commitment provision was included which states that “DQessee [MGM] agrees to expend at least Fifty Thousand dollars ($50,000) on exploration and development work within the first Ten (10) years of this Lease.”

Paragraph 3 of the lease requires MGM to pay a minimum royalty to CMC and Decker as follows:

When production is commenced, regardless of the amount of production, Lessee shall pay to Lessors a minimum monthly royalty payable on the first day of each calendar month following the commencement of production of the value of 1/4 ounce of Au. [gold] per month at that time, during the Lease term, unless this Agreement is terminated as hereinafter provided .... [Emphasis added].

Paragraph 4 requires additional royalty payments “upon all minerals and values mined, produced, saved, sold, in whatever form ... as a percentage of the net smelter return (NSR). NSR is defined as the amount of revenue payable to MGM by any smelter or other purchaser of concentrates, ores, minerals, metals, or by-products mined or produced from the Freida Marie.

The other provisions which are relevant to this appeal are Paragraphs 13 and 14, which address termination of the lease and default. Paragraph 13 allows MGM to terminate the lease at any time after five years from the date of the lease, upon ten days notice to CMC. Paragraph 14 provides for termination of the lease by CMC upon a default and failure to cure by MGM. In relevant part, it states as follows:

The failure of Lessee to keep or perform any obligations on its part to be kept or performed according to the terms and provisions hereof shall, at the election of Lessors, constitute a breach of this Agreement, unless such default be cured as hereinafter provided.
Lessee shall have a reasonable time, which, if the specified default involved only the payment of money, shall be not more than thirty (30) days, and which, in any other case, shall be not more than ninety (90) days, after receipt of such notice within which such specified default or defaults may be cured. If such default or defaults are cured, there shall be no breach hereunder with respect to such default or defaults....
If Lessee shall dispute that a default has occurred, it shall so advise Lessors ... and the question shall be determined in a court of competent jurisdiction. If decision of the court shall be that Lessee was in default, then it shall have the reasonable time aforesaid after said decision within which to cure the default or defaults before Lessors may terminate this Agreement in the manner aforesaid, and if such default or defaults be cured, there shall be no breach hereunder with respect to the same. [Emphasis added].

Finally, the agreement contains an integration clause which states that it encompasses the parties’ entire agreement and understanding, including all prior negotiations and dealings, and cannot be varied by oral or parol evidence. Furthermore, it states that any modifications to the agreement must be in writing.

After the ore was discovered and the lease signed, the parties ceased mining activities and began construction of a millsite which was to be used for milling the ore removed from the Freida Marie mine. MGM and JM allege that this decision was a joint decision made by Decker, Cooper, Pierce, and Lorbeck, and that Decker was actively involved in the day-to-day activities and decisions of the two corporations. However, Decker claims that the decision to cease mining while the millsite was under construction was made over his objection. Nonetheless, the only activities that appear to have taken place after the lease was signed, other than the construction of the millsite, were Decker’s removal of another five to seven tons of ore from the mine, the transportation of the stockpiled ore to the millsite, and the initial processing of some of the ore by running it through a trommel.

Several months later, the parties apparently ran out of the money needed to complete the millsite. On November 5, 1987, Decker sent a notice of default to MGM. Specifically, he claimed that MGM had failed to pay the minimum royalty which was due once production was commenced, it had failed to pay royalties on all minerals and values mined, and it had failed to comply with the work commitment provision of the lease. Decker then resigned as an officer and director of MGM and JM on November 25, 1987. The parties do not dispute that MGM objected to the notice of default in a timely manner pursuant to the terms of the lease. Decker then retook possession of the Freida Marie in February 1988 and locked it in order to deny MGM access to the leased property.

Thereafter, Decker and CMC filed a complaint in the District Court in June 1988, alleging that MGM and JM had defaulted on the lease agreement. The complaint stated that MGM had failed to pay the required royalties and had “failed to perform in that it did not continue production of the minerals.” Decker also sought damages for the corporations’ failure to pay him for his services as a professional consultant, and for the unpaid rent on equipment which was in the corporations’ possession. The complaint also requested reasonable attorney fees and costs.

In July 1988, MGM filed a complaint against CMC seeking specific performance of the lease agreement and possession of the leased property. It also sought an accounting from CMC for any minerals removed from the Freida Marie, damages incurred due to CMC’s possession of the mine, a temporary restraining order, and attorney fees and costs. A hearing was held on August 2,1988, in response to this complaint but no intermediate relief was granted.

The two causes were consolidated and a nonjury trial was held on June 30, 1992. In findings of fact and conclusions of law issued on November 24,1992, the court found that the parties had entered into a valid lease agreement. The provisions of the lease were incorporated into the findings. The court also found, in relevant part, the following:

8. Both before and following the formal lease, the various entities and individuals conducted mining and milling operations. Ore was removed and stockpiled, perhaps as much as 25 tons. Whether any was ever delivered to a smelter is not clear, probably not. What is certain is that the lessee [MGM] paid no royalty minimum, general or other.
9. In addition to its failure to pay royalties as provided in paragraph 4 of the lease, MGM defaulted in the lease and related agreements. It failed to make agreed investments; it failed to issue its corporate stock to anyone; it failed to continue production at least from June of 1987.

Based on these findings, the court concluded that Decker and CMC were entitled to judgment against MGM and JM. However, rather than award damages to Decker and CMC, the court terminated the April 20, 1987, lease agreement and quieted title to the leased property, all mining equipment owned or furnished by Decker or CMC, and the ore which was stockpiled on the leased property or the millsite. Neither party was awarded damages, attorney fees and costs, or other relief. Additionally, the complaint filed by MGM and JM seeking specific performance of the lease was dismissed. The court’s rationale for fashioning this type of equitable remedy was to “restore the parties to their respective positions before the advent of this ill-advised, mining dream.”

From this judgment, MGM and JM appeal.

I.

Did the District Court err when it found that Madison Gold Mines and Jefferson Mining were in default of the lease agreement?

There is no dispute that the parties voluntarily entered into an enforceable agreement and the validity of this agreement was not challenged on appeal. However, after reviewing the contract’s provisions and considering the evidence, the District Court found that MGM and JM were in default of the lease agreement in four specific ways.

Appellants MGM and JM contend that the court’s findings in this regard are clearly erroneous. They assert that they were not in default of the agreement with regard to royalty payments because production had not yet commenced. Furthermore, they had ten years to make the agreed investments, and the notice of default had been issued only six and one-half months after the lease was signed. Finally, they contend that the lease agreement did not contain provisions regarding issuance of stock or an obligation to “continue production.”

This Court will affirm the findings of a trial court sitting without a jury unless the findings are clearly erroneous. Rule 52(a), M.R.Civ.R In Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287, we adopted a three-part test to determine if the findings are clearly erroneous in a nonjury case: A finding is clearly erroneous if it is not supported by substantial credible evidence, if the court misapprehended the effect of the evidence, or, if after review of the record, this Court is left with a definite and firm conviction that a mistake has been committed.

After a careful review of the record and the provisions of the lease agreement, we conclude that the District Court’s findings of default by MGM and JM were clearly erroneous because they were not supported by substantial credible evidence.

First, the court found that MGM and JM failed to pay royalties as provided in paragraph 4 of the lease. There is no dispute that no royalties were paid to CMC and Decker. However, it is not clear whether royalty payments were due. Paragraph 3 of the lease requires monthly royalty payments “[w]hen production is commenced, regardless of the amount of production.” It is not clear from the face of the contract what constitutes “commencement of production” and the court did not make any findings in this regard.

The parties generally agree that the only activities which took place after the lease was signed were the transportation and stockpiling of the ore at the millsite, and partial construction of the millsite. Additionally, Decker testified that he removed another five to seven tons of ore from the Freida Marie after April 20,1987. The record also demonstrates that some of the ore that was transported to the millsite was initially processed by running it through a trommel.

The obligation for MGM to pay royalties is dependent on whether production had commenced. However, it is unclear whether the additional mining by Decker, at that time acting on behalf of MGM and JM, and the transportation, stockpiling, and partial processing of the ore constituted “commencement of production.” Because a finding of default for failure to pay the minimum royalty depends on whether production had commenced, we conclude that there was no factual basis for the court’s finding that minimum royalty payments were due. We reverse and vacate this portion of the judgment and remand for a determination, based on the evidence in the record, of whether production had “commenced” and whether MGM and JM were, therefore, obligated to pay minimum royalties to Decker and CMC.

Also in regard to royalties, the court found that MGM and JM were in default because they had not made general royalty payments pursuant to Paragraph 4 of the lease. This section requires payment of royalties “as a percentage of the net smelter return” based on payments to MGM by purchasers of any products mined from the Freida Marie mine. The court found that ore had “probably not” been transported to a smelter. Furthermore, there is no evidence in the record demonstrating that any products from the Freida Marie were actually sold to a smelter or other purchaser. Therefore, we conclude that there was not substantial evidence to support a finding that general royalty payments were due.

The court’s second finding of default was that MGM and JM had failed to make the investments required by the lease agreement. The work commitment provision of the lease requires MGM and JM to expend at least $50,000 within the first ten years of the lease. Although there was conflicting testimony regarding this clause and whether the parties had discussed requiring an investment of $50,000 within the first year of the agreement rather than in ten years, there is no evidence that the lease had been effectively modified through a written modification to the agreement. Furthermore, the validity of this provision was not challenged and there was no evidence of grounds for invalidating this provision. Therefore, because ten years had not elapsed, we conclude that the court’s finding of default in this respect is not supported by the evidence and is clearly erroneous.

Third, the court found that MGM and JM were in default of “other agreements” because of their failure to issue corporate stock. The lease agreement, however, includes no provisions regarding the issuance of stock. Although several of the parties testified that this was the original intent, both the original notice of default and the complaint filed by CMC and Decker were based on allegations of default of the lease agreement. The failure to issue stock, even if separately agreed upon, cannot serve as a basis for default under the lease. Therefore, we conclude that the court erred when it found that MGM and JM were in default for failing to issue stock.

Finally, the court based a finding of default on MGM’s failure “to continue production at least from June of 1987.” The lease provides that the agreement was entered into for the purpose of exploring, developing, and mining the Freida Marie. However, there are no specific provisions which discuss when production must be commenced or if there is an obligation to continue mining operations after signing the lease.

As already noted, the work commitment clause allows ten years for the lessees to expend $50,000. Decker contends that the failure of MGM to continue actively mining the Freida Marie was contradictory to the purpose of entering into the lease and that his expectation when he agreed to lease the property was that mining would continue and royalties would be paid in exchange for the indefinite leasing of this property to MGM. Decker contends it is unreasonable to believe that he and CMC would agree to a lease where the lessees could potentially “sit on the property for ten years without doing anything.”

Other than stating that MGM failed to continue production, the court made no specific findings to justify this statement. Therefore, we conclude that there is insufficient evidence to support the court’s finding of default in this regard. However, because the stated purpose of the lease was for the exploration, development, and mining of the Freida Marie mine, a determination of whether there was an implied obligation to actively continue this venture is necessary. Therefore, we remand for a determination by the court of whether, in good faith, MGM and JM were obligated to commence and continue “exploring, developing, and mining” the Freida Marie mine and whether their failure to do so constituted a breach of the lease agreement.

II.

Did the District Court err when, based on its findings of default, it terminated the lease agreement and failed to specifically enforce the default clause of the agreement?

Although we have reversed and vacated the judgment of the court, we will address this issue briefly for the guidance of the District Court on remand.

Decker and CMC contend that when the court found MGM and JM to be in default of the lease agreement, it impliedly found that this breach of the agreement was a material breach which justified terminating the contract. MGM and JM, however, assert that even if they were in default, they should have been allowed the opportunity to cure as specifically provided for in Paragraph 14 of the lease.

Paragraph 14 provides that if the lessee disputes that a default has occurred, it shall advise the lessor of the dispute and the question will then be determined in a court of competent jurisdiction. It is undisputed that MGM and JM properly objected to Decker’s notice of default. The lease then provides that if the court determines that the lessee is in default, there shall be a reasonable time to cure the default. If the default involves the payment of money, the lease requires that it be cured within 30 days, and in any other case, the default shall be cured within 90 days from the time the court finds a default to have occurred.

The provisions of the contract regarding default and the opportunity to cure are clearly set forth. When a contract is clear and unambiguous, it is a court’s duty to enforce the contract as made by the parties. Lane v. Smith (1992), 255 Mont. 218, 841 P.2d 1143; Keller v. Dooling (1991), 248 Mont. 535, 813 P.2d 437.

We conclude that the court erred when it terminated the contract rather than enforcing the default provisions and allowing MGM and JM the opportunity to cure. Although the court fashioned what it believed was an equitable remedy, the parties had entered into a valid, enforceable contract, and the court was obligated to enforce this contract.

Therefore, on remand, if the court determines that MGM and JM are in default of the lease agreement, the lease agreement’s provisions should be enforced and the court should allow MGM and JM the opportunity to cure as provided for in Paragraph 14 of the lease.

The judgment of the District Court, with respect to its findings of default and termination of the lease agreement, is reversed and vacated, and this matter is remanded for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT, NELSON and GRAY concur.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff, vs. BRADLEY RODNEY OLSON, Defendant.
    NO. CDC-91-095
    DECISION
   On March 12, 1992, the Defendant was sentenced to twenty-five (25) years with five (5) years suspended for Mitigated Deliberate Homicide. The defendant is a danger to society in the Court’s opinion, however, the Court does recommend that this defendant be allowed to serve his prison sentence at the Swan River Youth Camp if space is available. Five specific conditions were set out in the Judgment of March 12, 1992; a surcharge of $20 is assessed against this defendant. The Defendant shall be given credit for 313 days time served.

On March 11, 1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded pro se. The state was represented by Patrick Paul, County Attorney from Great Falls.

DATED this 11th day of March, 1993.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas McKittricb, Chairman, Hon. John Warner, and Hon. James Purcell, Judges

The Sentence Review Board wishes to thank Brad Olson for his assistance to the Court. The Board also wishes to thank Patrick Paul for appearing on behalf of the State of Montana.


text:
    STATE OF MONTANA, Plaintiff, vs. DOMINIC LEE, Defendant.
    NO. Dc-92-047(A)
    DATED this 11th day of March, 1993.
    DECISION
   On June 16,1992, the Defendant was sentenced to ten (10) years with five (5) years suspended plus conditions which includes a fine of $5,000 and a surcharge of $500. for Theft. Payments shall begin within forty-five (45) days of his release from custody. The sentence shall be served consecutively with that imposed for his Forgery conviction DC-91-097(A). The defendant shall receive credit for 72 days time served.

On March 11, 1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Michelle Maltese, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas McKittrick, Chairman, Hon. John Warner, and Hon. James Purcell, Judges

The Sentence Review Board wishes to thank Michelle Maltese, Legal Intern from the Montana Defender Project for her assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. DOMINIC LEE, Defendant.
    NO. DC-91-097(A)
    DATED this 11th day of March, 1993.
    DECISION
   On September 9,1992, the Defendant was sentenced to fifteen (15) years with nine (9) years suspended for the revocation of Forgery, a Felony Common Scheme. The Defendant is given credit for eighty-two (82) days time served. The sentence shall be served consecutively to the sentence imposed in DC-92-047(A).

On March 11, 1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Michelle Maltese, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas McKittrick, Chairman, Hon. John Warner, and Hon. James Purcell, Judges

The Sentence Review Board wishes to thank Michelle Maltese, Legal Intern from the Montana Defender Project for her assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. GENE ALAN MAASCH, Defendant.
    NO. 3284
    DECISION

      DATED this 11th day of March, 1993.
   On June 4,1992, the Defendant was sentenced to ten (10) years with five (5) years suspended for the revocation of Criminal Endangerment. Credit is given for 42 days served.

On March 11, 1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded pro se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas McKittrick, Chairman, and Hon. James Purcell

DISSENT: THE HONORABLE JUDGE WARNER DISSENTS. Judge Warner believes the sentence imposed should be increased by twelve (12) to thirteen (13) months because the information provided indicates that the defendant did not adequately complete the anger management program and the child might still be in danger.

The Sentence Review Board wishes to thank Gene Maasch for his assistance to the Court.


text:
    STATE OF MONTANA, Plaintiff, vs. ELDON CLARENCE SHAVER, SR., Defendant.
    NO. Dc-87-65
    DECISION
   On July 6,1992, the Defendant was sentenced to Count I, eight (8) years for Deviate Sexual Conduct; Count II, eight (8) years for Deviate Sexual Conduct; the sentences shall be served consecutively to each other. The Defendant shall receive credit for time served while on probation from January 4,1988 to January 22,1991. The Defendant shall not receive credit for time on probation from February 1,1991 to the present date. The Defendant shall receive additional credit of twenty (20) days time served by reason of prior incarceration. The Defendant shall not be eligible for parole until he has enrolled, actively participated in, and successfully completed all phases of a sex offender program while confined at the State Prison of Montana. The Defendant shall carefully follow all treatment plans recommended by counselors, whether Defendant is incarcerated at the State Prison or on parole. The Defendant shall be placed under the jurisdiction of the Department of Corrections and Human Services, Division of Adult Parole and Probation of the State of Montana, and follow all other conditions imposed in the July 6, 1992 Judgment.

DATED this 11th day of March, 1993.

On March 11, 1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded pro se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he did not wish to proceed, but wanted his case dismissed.

The Petition is dismissed without prejudice at this time. Upon showing of good cause, the Petitioner can reapply for Sentence Review at a later date.

Hon. Thomas McKittrick, Chairman, Hon. John Warner, and Hon. James Purcell, Judges


text:
    STATE OF MONTANA Plaintiff, vs. JOHN GORDON FAIRSERVICE, Defendant.
    NO. CDC-90-236a
    DATED this 12th day of March, 1993.
    DECISION
   On May 3, 1991, the Defendant was sentenced to twenty (20) years with ten (10) years suspended for Aggravated Burglary; plus an additional ten (10) years for the use of a dangerous weapon. The sentences are to be served consecutively. Several conditions plus restitution and surcharges were also imposed in the May 3,1991 Judgment. The Defendant shall be given credit for 223 days time served.

On March 12, 1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Tim McKeon, Attorney from Anaconda, Montana. The state was represented by Patrick Paul, County Attorney from Great Falls, Montana.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence be affirmed.

The reason for the decision is presumed correct as it was within the statutory limits and within the preview of the plea agreement.

Hon. Robert Boyd, Acting Chairman, Hon. John Warner, and Hon. James Purcell, Judges

The Sentence Review Board wishes to thank Tim McKeon, Attorney from Anaconda for his assistance to the defendant and to this Court. The Board also wishes to thank Pat Paul for appearing on behalf of the State of Montana.


text:
    STATE OF MONTANA, Plaintiff, vs. CLIVE WELLINGTON KINLOCK, Defendant.
    NO. BDC-91-205a
    DATED this 12th day of March, 1993.
    DECISION
   On June 9,1992, the Defendant was sentenced to ten (10) years for Count I, Assault; ten (10) years for Count II, Aggravated Kidnapping; Count III, forty (40) years for Sexual Intercourse Without Consent; plus an additional ten (10) years for the use of a weapon while committing the other offenses. Said Sentences are to be served consecutively. The Defendant shall be given credit for 198 days time served. The Defendant is designated as a dangerous offender for the purposes of parole eligibility. The Defendant shall be ineligible for parole for the first thirty (30) years of this sentence, and several conditions were also imposed in the June 9,1992 Judgment.

On March 12, 1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Patricia Day-Moore, Legal Intern from the Montana Defender Project. The state was represented by Patrick Paul, County Attorney from Great Falls, Montana.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall remain the same as originally imposed, however, the ineligible for parole for thirty (30) years designation shall be removed. All other aspects of the Sentence imposed by Judge McKittrick on June 9,1992, shall remain the same as originally imposed.

The reasons for the decision are:

1. As a non-citizen of the United States, the Defendant will undoubtedly be deported back to Jamaica upon his release from the Montana State Prison.

2. The Defendant’s long-term incarceration deprives him of the possibility of entering any rehabilitation program at Montana State Prison, thereby negating the possibility of adding good-time.

3. Under the present system the Defendant will probably have to serve in excess of twenty (20) years before becoming eligible for parole.

4. The amendment will give the Defendant some hope of completing the sentence imposed.

Hon. Robert Boyd, Acting Chairman, Hon. John Warner, and Hon. James Purcell, Judges

The Sentence Review Board wishes to thank Patricia Day-Moore, Legal Intern from the Montana Defender Project for her assistance to the defendant and to this Court. The Board also wishes to thank Pat Paul for appearing on behalf of the State of Montana.


text:
    STATE OF MONTANA, Plaintiff, vs. DAVID AZURE, Defendant.
    NO. BDC-91-111a
    DATED this 12th day of March, 1993.
    DECISION
   On May 20,1992, the Defendant was sentenced to forty (40) years with twenty (20) years suspended for Sexual Intercourse Without Consent. The Defendant shall be placed on formal supervised probation with the Adult Probation and parole Bureau and shall obey the rules and regulations thereof. The Defendant shall successfully complete the Sex Offender Program and shall submit to and complete drug and alcohol counseling. Plus abide by all other conditions set out the in May 20, 1992 Judgment. The Defendant shall be designated as a dangerous offender for the purposes of parole eligibility.

On March 12, 1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded pro se. The state was represented by Patrick Paul, County Attorney from Great Falls, Montana.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to have the proceedings continued.

After careful consideration the motion to continue was granted and David Azure will be placed on the May, 1993 Sentence Review calendar.

The reason for the continuation is to allow the Defendant sufficient time to obtain counsel.

Hon. Robert Boyd, Acting Chairman, Hon. John Warner, and Hon. James Purcell, Judges


text:
    STATE OF MONTANA, Plaintiff, vs. JAMES BLAZE COLT, Defendant.
    NO. DC-91-152(B)
    DECISION
   On February 19, 1992, the Defendant was sentenced to Count I, ten (10) years for Issuing a Bad Check; Count II, ten (10) years for Deceptive Practices all of which is suspended; Count III, ten (10) years for Deceptive Practices all of which is suspended and is concurrent to the sentence imposed in Count II. The sentences imposed in Count II and Count III shall he consecutive to the sentence for Count I. Plus conditions as stated in the February 19,1992 Judgment. Credit is given for 199 days time served.

On March 12, 1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded pro se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, hut also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

DATED this 12th day of March, 1993.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas McKittrick, Chairman, Hon. John Warner, and Hon. James Purcell, Judges

The Sentence Review Board wishes to thank James Colt for his assistance to the Court.


text:
    STATE OF MONTANA, Plaintiff, vs. GEORGE FRED ALLEN, Defendant.
    NO. DC-91-023(B)
    DATED this 12th day of March, 1993.
    DECISION
   On June 24, 1991, the Defendant was sentenced to twenty (20) years with six (6) years suspended for Criminal Possession of Dangerous Drugs with Intent to Sell. The Defendant is designated a dangerous offender for purposes of parole eligibility. Credit is given for 164 days time served. Plus conditions as listed in the June 24, 1991 Judgment.

On March 12, 1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded pro se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas McKittrick, Chairman, Hon. John Warner, and Hon. James Purcell, Judges

The Sentence Review Board wishes to thank Geroge Allen for his assistance to the Court.


text:
    STATE OF MONTANA, Plaintiff, vs. THOMAS E. HASKINS, Defendant.
    NO. DC-89-47
    DATED this 12th day of March, 1993.
    DECISION
   On December 20,1989, the Defendant was sentenced to Count I, twenty (20) years with fifteen (15) years suspended for Criminal Sale of Dangerous Drugs; Count II, twenty (20) years with fifteen (15) years suspended for Criminal Sale of Dangerous Drugs; Count III, twenty (20) years with fifteen (15) years suspended for Criminal Sale of Dangerous Drugs; Count IV, twenty (20) years with fifteen (15) years suspended for Criminal Sale of Dangerous Drugs; with the sentence on each count to run consecutively; for a total sentence of eighty (80) years in the Montana State Prison with sixty (60) years suspended. The Defendant shall receive credit for 35 days time served. The Defendant is designated a dangerous offender for purposes of parole eligibility. The Defendant shall be ineligible for parole until he enters and successfully completes the inpatient chemical dependency treatment program at the Montana State Prison. The Court orders that the suspended portion of the sentence shall he upon the conditions imposed in the December 20, 1989 Judgment.

On March 12, 1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded pro se. The state was represented by Larry Nistler, County Attorney from Poison, Montana.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas McKittrick, Chairman, Hon. John Warner, and. Hon. James Purcell, Judges

The Sentence Review Board wishes to thank Thomas Haskins for his assistance to the Court. The Board also wishes to thank Larry Nistler for appearing on behalf of the State of Montana.


text:
    STATE OF MONTANA, Plaintiff, vs. ALLEN RAY 'SPEEDY' MATT, Defendant.
    NO. DC-89-68
    DATED this 12th day of March, 1993.
    DECISION
   On October 18, 1989, the Defendant was sentenced to Count I, five (5) years with all suspended except three (3) years; Count II, ten (10) years with all suspended except five (5) years. The Defendant shall receive credit for 143 days time served. The sentence imposed on Count II shall run consecutively to the sentence imposed on Count I. The Defendant shall be designated a dangerous offender for purposes of parole. The Defendant shall not be considered for parole until he has satisfactorily completed the aggression management program and chemical dependency treatment program at the Montana State Prison. The suspended portion of the sentence shall be upon the conditions imposed in the October 18,1989 Judgment.

On March 12, 1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Colleen E. Ambrose, Attorney from Missoula, Montana. The state was represented by Larry Nistler, County Attorney from Poison, Montana.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas McKittriek, Chairman, Hon. John Warner, and Hon. James Purcell, Judges

The Sentence Review Board wishes to thank Colleen Ambrose, Attorney from Missoula for her assistance to the defendant and to this Court. The Board also wishes to thank Larry Nistler for appearing on behalf of the State of Montana.


text:
    STATE OF MONTANA, Plaintiff, VS. ALLEN RAY 'SPEEDY' MATT, Defendant.
    NO. DC-88-125
    DECISION
   On October 25, 1989, the Defendant was sentenced to ten (10) years with all suspended except eight (8) years for Felony Assault. Pursuant to MCA 46-18-221 the Defendant shall serve five (5) years, which shall run consecutively to the sentence imposed above. The Defendant shall receive credit for 20 days served. This sentence shall be served consecutively to the sentence imposed in Cause No. DC-89-68. The Defendant shall be designated a persistent felony offender and shall be designated a dangerous offender for purposes of parole. The Defendant shall not be considered for parole until he has satisfactorily completed the aggression management program and chemical dependency treatment program at the Montana State Prison. The suspended portion of the sentence shall be upon the conditions imposed in the October 25, 1989 Judgment.

DATED this 12th day of March, 1993.

On March 12, 1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Colleen E. Ambrose, Attorney from Missoula, Montana. The state was represented by Larry Nistler, County Attorney from Poison, Montana.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas McKittrick, Chairman, Hon. John Warner, and Hon. James Purcell, Judges

The Sentence Review Board wishes to thank Colleen Ambrose, Attorney from Missoula for her assistance to the defendant and to this Court. The Board also wishes to thank Larry Nistler for appearing on behalf of the State of Montana.


text:
    STATE OF MONTANA, Plaintiff, vs. JAMES ZACKUSE, Defendant.
    NO. DC-90-113
    DECISION
   On May 29, 1991, the Defendant was sentenced to Count I, forty (40) years with twenty (20) years suspended for Criminal Sale of Dangerous Drugs; Count II, forty (40) years with twenty (20) years suspended for Criminal Sale of Dangerous Drugs; Count III, forty (40) years with twenty (20) years suspended for Criminal Sale of Dangerous Drugs; Count IV, forty (40) years with twenty (20) years suspended for Criminal Sale of Dangerous Drugs; Count V, forty (40) years with twenty (20) years suspended for Criminal Sale of Dangerous Drugs. The sentences imposed on Counts II, III, IV and V shall run concurrently with the sentence imposed on Count I. The Defendant shall receive credit for 32 days time served. The Defendant shall not be eligible for parole until he successfully completes the inpatient chemical dependency treatment program at the Montana State Prison. The suspended portion of the sentence shall be upon the conditions set forth in the May 29, 1991 Judgment.

DATED this 12th day of March, 1993.

On March 12, 1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded pro se. The state was represented by Larry Nistler, County Attorney from Poison, Montana.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to have his case continued.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be continued and rescheduled to be heard May, 1993.

Hon. Thomas McKittrick, Chairman, Hon. John Warner, and Hon. James Purcell, Judges


author: JUSTICE WEBER JUSTICE TRIEWEILER JUSTICE GRAY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JAMES EDWARD THOMPSON, Defendant and Appellant.
    No. 93-134.
    Submitted on Briefs October 5, 1993.
    Decided December 22, 1993.
    50 St.Rep. 1683.
    263 Mont. 17.
    865 P.2d 1125.

      JUSTICE TRIEWEILER filed a dissenting opinion in which JUSTICE HUNT joined.
    JUSTICE GRAY concurred in part and dissented in part.
    For Defendant and Appellant: William F. Hooks, Appellate Defender Office, Helena.
    For Plaintiff and Respondent: Joseph P. Mazurek, Attorney General, Cregg W. Coughlin, Assistant Attorney General, Helena; George H. Corn, Ravalli County Attorney, Hamilton.
   JUSTICE WEBER

delivered the Opinion of the Court.

Defendant James Edward Thompson (Thompson) appeals a jury verdict from the Montana Fourth Judicial District, Ravalli County (now the Twenty-First Judicial District), which convicted him of felony assault. We affirm.

The following issues are presented for our review:

1. Did the District Court err in permitting the jury to consider certain statements made by the defendant at the omnibus hearing?

2. Did the District Court err in permitting a medical doctor to testify as to the victim’s identification of the perpetrator?

3. Was defendant denied his right to a speedy trial under the Montana and United States constitutions?

On Monday, March 9, 1992, ten-year-old KT. was talking to Cindy Duarte (Duarte), a teacher at the Corvallis school which she attended. Dining their conversation, KT. coughed and grabbed her side, complaining that her side hurt, and then showed her bruises and scrapes to Ms. Duarte. Duarte asked KT. what had happened and KT. responded that her stepfather had repeatedly kicked her. Upon further questioning from Duarte, KT. revealed another injury on her leg.

Duarte advised the school principal of what she had observed; the principal then contacted Linda Heyes (Heyes), a social worker with the Department of Family Services, who in turn notified the Ravalli County Sheriff’s office. Heyes and Officer Pat Richie investigated the matter; they met with KT. at the school and looked at KT.’s injuries. They noted that KT. had bruises on her left arm, on her left torso, on her back, on her legs and on her shin. Heyes described the injuries as “extensive and severe”; Officer Richie described them as “pretty extensive.”

Heyes and Richie took K.T. to the emergency room at Marcus Daly Hospital in Hamilton because K.T. complained of pain when she coughed and when she breathed. Dr. Brett Bender, the emergency room physician, examined K.T. and observed numerous bruises over KT.’s chest, back, right leg and left arm. When Dr. Bender asked her why she was there to see him, she told him that her stepfather had kicked her numerous times. Dr. Bender noted that the bruises were 20-30 hours old and were consistent with injuries sustained from kicking.

When KT. referred to her “stepfather,” she meant the defendant, James Edward Thompson. Thompson testified that he and KT.’s mother are common law husband and wife. Heyes spoke with Thompson about the incident and he told her that he had grabbed KT. by the hair and thrown her up onto a dresser, but that he had not kicked her. He further claimed that KT. had injured herself when she had a tantrum in the garage and threw herself up against a woodpile, against car parts and then against the woodpile again.

Thompson was charged with felony assault on May 6,1992. Counsel was appointed to defend Thompson, but he expressed dissatisfaction with that representation as well as the public defender system in general. At the omnibus hearing on May 26, Thompson asked to personally address the District Court. Against the advice of his counsel, he then read a prepared statement to the court. Thompson also read the statement although the District Court had admonished him at the urging of the Ravalli County Attorney that anything he stated would be used against him. This statement was subsequently read to the jury at Thompson’s trial for felony assault.

Further facts will be provided as necessary in the opinion.

I.

Did the District Court err in permitting the jury to consider certain statements made by the defendant at the omnibus hearing?

Prior to trial, Thompson filed a motion in limine to suppress the admission into evidence of certain statements he had made at the omnibus hearing. The portion of the transcript of the omnibus hearing admitted into evidence, which Thompson sought to suppress, is as follows:

[Thompson]: ... The first remark refers to two parts of the First Amendment to the United States Constitution. This amendment has been and is proven thoroughly in several cases by state, federal and supreme courts of these United States.

The charges brought today against me are a direct and contradictory action against the references to religion and religious freedom. Christianity in the New Testament of the Bible refers specifically to the use of force on and in the rearing of children. It is direct in its quotation, “To spare the rod and spoil the child.”

Mr. CORN: Your Honor, may I object: The Defendant should be admonished that anything he states can be used against him.

THE COURT: You previously have been read your rights, have you not?

THE WITNESS: Yes, I have.

THE COURT: You understand that any of these statements you are now making can be transcribed and read to a jury at a later time?

THE WITNESS: Yes, I do.

THE COURT: You may proceed.

THE WITNESS: This means that if this Court, through future hearings, decides I, myself, am guilty of inflicting damage upon the minor child, which I doubt will happen, it must then decide if as a parent or guardian I, or any parent, am within or without my constitutional freedoms to do so.

Having not had a formal education in law or mediation, much of my knowledge is firsthand from reading this constitutional entry which directly stipulates that congress or no law-making establishment may or will make any laws regarding religions.

This openly means that if a person — any person — in an attempt to live a life in his personal religious manner may not be made to submit to the atrocities of invasion of privacy, discrimination or to answer for his personal religious views in an open court or to be brought before a charge which he may believe is a Godly action.

Remembering that in Christianity, child sacrifice was also accepted, any form of action less would be a merciful action.

Over the objection of defense counsel, the prosecutor read the above-quoted statement aloud during the State’s case-in-chief. Thompson had alleged in his motion in limine that the above statements were prejudicial because they were the result of an “emotional outburst” and were irrelevant to the crime charged.

The District Court denied the motion to suppress the statements from evidence because Thompson had no basis for asserting that the statement was an “emotional outburst.” In the Opinion and Order denying Thompson’s motion in limine, the District Court stated:

Defendant has filed a Motion in Limine to exclude the use by the State of a statement which Defendant read to the Court at the end of the May 26,1992 omnibus hearing. Defendant asked the Court if he could read his prepared statement to the Court. At that time the Court again advised him of his rights. Defendant responded that he understood his rights and that he wanted to make the public statement even though it was against the advise (sic) of his own counsel. Defendant’s argument that the statement was an emotional outburst is without factual basis. Defendant appeared calm and composed as he read the lengthy, pre-prepared public statement to the Court. Defendant’s statement was made voluntarily, with full knowledge of his rights, and is therefore admissible....

On appeal, Thompson makes three arguments relating to his statement. Thompson first contends that the District Court erred by permitting the State to read the statement because it was neither an admission nor a confession. He further contends that the District Court then exacerbated the error by instructing the jury as to how to weigh the statement as an admission or confession when in fact the statement was neither an admission nor a confession. Finally, he claims that the statement was unduly prejudicial and that any probative value was outweighed by the prejudicial effect.

We first conclude that this is the sort of statement which this Court has characterized as an admission. See, e.g., State v. Stevens (1921), 60 Mont. 390, 199 P. 256. Thompson’s statement indicates that he believed that the First Amendment allowed him to punish his stepdaughter as he saw fit; this statement is inconsistent with his theory of innocence which was that he did not inflict the injuries upon K.T. by kicking her and that she had injured herself in a tantrum. Statements or declarations of independent facts which are inconsistent with any theory of innocence on the part of a defendant, thus tending to prove the defendant’s guilt although on a different set of facts, are competent evidence as admissions against interest. Stevens, 60 Mont. at 401-02, 199 P. at 259.

“An ‘admission’ is defined as an avowal or acknowledgement of a fact or of circumstances from which, together with other facts, guilt may be inferred.” State v. Goltz (1982), 197 Mont. 361, 369, 642 P.2d 1079, 1084, (quoting 22A C.J.S. Criminal Law § 730(a)(1961)). An admission does not acknowledge guilt; rather, it tends to establish guilt. Goltz, 642 P.2d at 1084. See also People v. Stewart (1984), 473 N.E.2d 840, cert. denied sub nom. Stewart v. Illinois, 471 U.S. 1131, 105 S.Ct. 2666, 86 L.Ed.2d 283, reh’g denied 473 U.S. 921, 105 S.Ct. 3548, 473 U.S. 921, 87 L.Ed.2d 671.

We further conclude that the District Court did not err when it instructed the jury with regard to admissions and confessions by giving the following jury instruction:

Admission or confession.
A statement made by a defendant other than at this trial may be an admission or confession.
A confession, as applied in criminal law, is a statement by a person made after the offense was committed that he committed or participated in the commission of a crime. An admission is a statement made by the accused, direct or implied, of facts pertinent to the issue, and tending, in connection with proof of other facts, to prove his guilt. A conviction cannot be based on an admission or confession alone.
The circumstances under which the statement was made may be considered in determining its credibility or weight. You are the exclusive judges as to whether an admission or a confession was made by the defendant, and if so, whether such statement is true in whole or in part. If you should find that any such statement is entirely untrue, you must reject it. If you find it is true in part, you may consider that part which you consider to be true.
Evidence of an oral admission or oral confession of the Defendant should be viewed with caution.

Thompson claims that the court erred when it instructed the jury as to both a confession and an admission. This Court has previously ruled that if the instructions, viewed as a whole, fully and fairly instruct the jury on the law applicable to the case, we will find no error on the part of the district court. State v. Lundblade (1981), 191 Mont. 526, 529, 625 P.2d 545, 548.

It is important that the jury be made aware of the distinction between an admission and a confession and that a conviction cannot be based on an admission alone. In State v. Hallam (1978), 175 Mont. 492, 503, 575 P.2d 55, 62, we stated that “a ‘confession’ is an admission of the crime itself and an ‘admission’ concerns only some specific fact which, in turn, tends to establish guilt or some element of the offense.” Here, the court made the jury aware of the distinction between an admission and a confession by the jury instruction quoted above. The court further instructed the jury to view an admission or a confession with caution. The instruction left it up to the jury to determine what it was, whether or not it was there and what effect to give it. The instruction is a correct statement of the law. We conclude that the District Court did not err in instructing the jury on the law applicable to this case.

Finally, Thompson contends that his statements should have been excluded, even if relevant, because the prejudicial effect of the evidence outweighed any probative value. Admissions by a party opponent which are not hearsay are admissible, but they are still subject to other rules of evidence and to constitutional safeguards. A statement containing admissions such as Thompson’s above-quoted statement is not hearsay. Rule 801(d)(2), M.R.Evid.

The Rules of Evidence provide that evidence must be relevant to be admissible. Rule 402, M.R.Evid. Relevant evidence may be excluded if the danger of unfair prejudice substantially outweighs its probative value. Rule 403, M.R.Evid. The probative reason for the State’s introduction of the statement into evidence is that the statement is inconsistent with Thompson’s claim at trial that he had not kicked K.T., thus tending to throw doubt upon the denial at trial.

The probative value, therefore, of the use of admissions is twofold:

In the first place, all admissions may furnish, as against the opponent, the same discrediting inference as that which may be made against a witness in consequence of a prior self-contradiction; ... [Secondly,] all admissions, used against the opponent, satisfy the hearsay rule, and, when once in, have such testimonial value as belongs to any testimonial assertion under the circumstances; and the more notably they run counter to the natural bias or interest of the party when made, the more credible they become; this element adding to their probative value, but not being essential to their admissibility.

4 J.Chadbourn, Wigmore on Evidence § 1048 (1972) (emphasis in original).

A requirement that the statement be voluntary relates to the Fifth Amendment privilege against seh-incrimination and from requirement of due process. 23 C.J.S. Criminal Law § 892 (1989). Whether a statement is voluntary also turns on the “totality of the circumstances” of the particular case. 23 C. J.S. Criminal Law § 893 (1989).

... The question is whether [an] accused’s will was overborne, so that the statement is not the product of a rational intellect and a free will. The statement must not have been extracted by the exercise of any improper influence.
Various factors are considered. A statement is not necessarily voluntary merely because it resulted from a knowing choice in the sense of a choice made by a person with a capacity for conscious choice, or was preceded by other incriminating statements, or because of various other factors.

23 C.J.S. Criminal Law § 893 (1989).

In State v. Gould (1985), 216 Mont. 455, 466, 704 P.2d 20, 28, we emphasized that the determination of admissibility is based on the “totality of the circumstances.” We said:

An admission is competent and admissible where the defendant is found capable of understanding and responding in an intelligent manner. This determination is based upon the totality of the circumstances, which includes consideration of the “defendant’s demeanor, coherence, articulateness, his capacity to make full use of his faculties, his memory and his overall intelligence.” ... (Citation omitted.)

In Gould, the defendant and another person were involved in an automobile accident, in which the other person was killed. When help arrived at the scene of the accident, Gould was unconscious and he did not speak until he was warmed up. At the scene of the accident, Gould stated that he had been driving. Gould later denied that he had been driving, claiming that the deceased person had been driving. He contended that his statement that he was driving, made after the accident, should not be admitted in his trial for negligent homicide because he was in shock and so intoxicated that he was incapable of making a voluntary statement. The admission was allowed into evidence as being competent because the evidence indicated that Gould became coherent and was able to carry on a normal conversation with no delay in responses, his responses were clear and understandable, and his responses were logical and rational. There was additional evidence that Gould’s blood pressure and pulse were within a normal range and that he responded consistently when asked whether he had been driving the vehicle. Gould, 704 P.2d at 28-29.

Here, the District Court determined that the defendant understood his rights and that he wanted to make the public statement even though it was against the advice of his court-appointed counsel. We conclude that the District Court based its decision to admit the defendant’s statement on a totality of the circumstances, properly considering relevant factors including those referred to in Gould. The court specifically noted that Thompson made the statements voluntarily “with full knowledge of his rights” and that “Defendant appeared calm and composed as he read the lengthy, pre-prepared public statement to the Court.”

The District Court’s determination of admissibility will not be disturbed absent an abuse of discretion. State v. Hall (1990), 244 Mont. 161, 169, 797 P.2d 183, 189. The balancing of probative value versus unfair prejudice of evidence is within the discretion of the trial court. State v. Devlin (1991), 251 Mont. 278, 283, 825 P.2d 185, 188.

InDevlin, the trial court excluded some of the photographs which the State had intended to submit because they were gruesome, but did not exclude all of the photographs. In this case, Thompson’s statements could be considered as having significant probative value if the jury concluded that they established his state of mind and were relevant because they were inconsistent with his statements that the child had injured herself. The danger of “unfair prejudice” is the danger that the evidence will prompt the jury to decide the case on an improper basis. Unfair prejudice can arise from facts that arouse the jury’s hostility or sympathy for one side without regard to its probative value, evidence that confuses or misleads the trier of fact, or evidence that might unduly distract the jury from the main issues. 1J. Strong, McCormick on Evidence § 185 (4th ed. 1992). The District Court warned Thompson that his statements could be read to the jury at the trial but Thompson nonetheless proceeded to read the statement to the court. The District Court also instructed the jury, at Thompson’s request, as follows:

Use of force by parent, guardian, or teacher. A parent or an authorized agent of any parent or guardian, master, or teacher is justified in the use of such force as is reasonable and necessary to restrain or correct his child, ward, apprentice or pupil.

In State v. Higareda (1989), 238 Mont. 130, 134, 777 P.2d 302, 305, we affirmed the district court’s admission into evidence of defendant’s statement to his parole officer that he “really screwed up.” We stated:

The defendant voluntarily made the statements after he had been arrested and advised of his rights ... Defendant initiated the conversation ... Although defendant was required to inform his parole officer of arrest, the statements he made during the telephone conversation were not a result of an interrogation but were made freely and conveyed voluntarily. While some prejudicial effect is inherent in this type of testimony, we cannot say that it outweighed the probative value.

Higareda, 777 P.2d at 305.

We conclude that any danger that the case could be decided on an improper basis here was outweighed by the probative value of the evidence.

We hold that the District Court did not abuse its discretion by permitting the jury to consider the statements made by the defendant at the omnibus hearing.

II.

Did the District Court err in permitting a medical doctor to testify as to the victim’s identification of the perpetrator?

During the State’s case-in-chief, Dr. Bender was asked if he had determined how the bruises had occurred. He responded that he typically asks his patients an open-ended question, such as “Why are you here to see me?” Over the objection of defense counsel, Dr. Bender was allowed to testify that K.T. had told him that her stepfather had inflicted her injuries by kicking her in response to his general question of why she was there to see him.

Thompson contends that the physician was properly allowed to testify as to his diagnosis or treatment and as to the mechanism of the injury, but that he should not have been allowed to testify as to the identity of the person who kicked her because it had no relevance to his diagnosis or treatment. Thompson also contends that although Dr. Bender did testify that it was important for him to know the mechanism of injury to determine if X-rays were necessary, he did not testify that it was important for him to know who delivered the impact.

Thompson relies on State v. Harris (1991), 247 Mont. 405, 808 P.2d 453, for his argument that Dr. Bender should not have been allowed to testify that K.T. had told him her stepfather had kicked her. Harris does not prevent a medical doctor from testifying about statements made for purposes of medical diagnosis and treatment — it prevents a counselor from testifying about the credibility of a child victim of sexual abuse. Harris, 808 P.2d at 457. Statements made to a medical doctor for the purpose of medical diagnosis or treatment are admissible, including statements relating to “the inception or general character of the cause or external source thereof.” Rule 803(4), M.R.Evid.

Statements made to medical doctors for the purpose of medical diagnosis and treatment must satisfy a two-part test before they come within the Rule 803(4), M.R.Evid., exception to the hearsay rule: (1) the declarant’s motive in making the statement must be consistent with seeking medical treatment and (2) the statement must be of a type reasonably relied on by a physician when making diagnosis and treatment decisions. Harris, 808 P.2d at 457. In this case, Dr. Bender testified as follows:

[Dr. Bender] After interviewing the patient, I asked exactly what had happened, and after examining her, I did order a chest x-ray as well as an x-ray of the left humerus, which is the upper part of the arm.
Q Referring your attention to your interview of the patient, did you determine how the injuries occurred?
AI always come into the room initially with an open-ended question, meaning I ask most of my patients, and [K.T.] particularly, “Why are you here to see me?”
Q What was her response, Doctor?
A The patient told me she was here because her stepfather had kicked her a number of times and caused the bruises, and then she showed — she pointed to her extremities and chest.
Q Why was it important for you to know the cause of injury?
A It is important to know the specific mechanism of injury to determine, for example, force and to determine further evaluation. In this case I thought it was necessary to know the mechanism of injury to find out if I needed to order x-rays or not, and I determined that I did. So, the chest x-ray and left humerus x-rays were ordered.

The record demonstrates that KT.’s statement identifying her perpetrator was made in connection with Dr. Bender’s treatment of her and was of the type that is reasonably relied on by physicians in general when making diagnosis and treatment decisions. The record further demonstrates that Dr. Bender gained the necessary information from which he concluded that X-rays were indeed required to determine the full extent of KT.’s injury. KT.’s response to Dr. Bender’s question was a response such as is reasonably relied on by physicians in general and in this case resulted in the actual taking of X-rays. We conclude that Dr. Bender’s statements were admissible under the two-part test set forth in Harris.

We hold the District Court did not err in permitting Dr. Bender to testify as to KT.’s identification of Thompson as the perpetrator.

III.

Was defendant denied his right to a speedy trial under the Montana and federal constitutions?

The right to a speedy trial in a criminal prosecution is a fundamental right that is guaranteed to the accused by the Sixth and Fourteenth Amendments to the United States Constitution and by Article II, Section 24 of the Montana Constitution. Thompson asserts that he has been denied this right by a delay of 203 days between his appearance before the justice court and his trial on the assault charge and that he is entitled to reversal of the conviction and dismissal of the charge. We disagree.

The test used to determine whether a defendant’s constitutional right to a speedy trial has been violated was set forth in Barker v. Wingo (1972), 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117. This Court adopted the Barker test in State ex rel. Briceno v. District Court (1977), 173 Mont. 516, 518, 568 P.2d 162, 163-64, stating:

These cases involve a sensitive balancing of four factors, in which the conduct of the prosecution and the defendant are weighed in determining whether there has been a denial of the right to a speedy trial.

The four factors to be balanced are (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) prejudice to the defendant. Barker, 407 U.S. at 530-32, 92 S.Ct. at 2192-93, 33 L.Ed.2d at 117-18.

Length of delay

The first factor, the length of the delay, is of primary importance as the other three factors need not be considered unless the length of the delay is presumptively prejudicial. State v. Dahms (1992), 252 Mont. 1, 12, 825 P.2d 1214, 1220. Whether the length of delay will be considered presumptively prejudicial depends on the facts of each case. Dahms, 825 P.2d at 1220. The initial determination concerning the length of the delay is made without allocation of delay to either party. Dahms, 825 P.2d at 1220. A delay of over 200 days will usually trigger the full analysis. Dahms, 825 P.2d at 1220-21.

In this case, 203 days is presumptively prejudicial to the defendant; thus, the remaining three factors must be considered. However, no particular factor is determinative; all four must be weighed in light of the facts and circumstances of the case. State v. Morris (1988), 230 Mont. 311, 317, 749 P.2d 1379, 1382.

Reasons for delay

In considering the second factor, the reasons for the delay, we allocate the delay by determining how much time is attributable to each party. State v. Heffernan (1991), 248 Mont. 67, 71, 809 P.2d 566, 568. In this case, the District Court set the trial date for the next term of court. The cause for the delay was purely institutional and is therefore chargeable to the State. State v. Hembd (1992), 254 Mont. 407, 413, 838 P.2d 412, 416.

However, institutional delay weighs less heavily against the State than does purposeful delay. Hembd, 838 P.2d at 416. As in Hembd, nothing in the record in this case points to any purposeful delay by the State.

Assertion of the right to a speedy trial

Thompson satisfied this element by moving to dismiss on speedy trial grounds prior to trial. However, he initially asserted his right to a speedy trial on November 5,1992 —just four days prior to trial. In denying Thompson’s motion to dismiss on speedy trial grounds, the District Court noted that Thompson did not object to the trial date at the omnibus hearing when the date was set nor did he make any demand for a speedier trial. This was the normal method of scheduling criminal jury trials in Ravalli County. In the order dated November 9, 1992, the court further noted that three other district judges had since had criminal trial terms in Ravalli County, defense counsel had knowledge of the calendaring of criminal jury trials in Ravalli County and could have requested that one of the other district judges assume jurisdiction if defendant wanted a speedier trial. In State v. Mooney (1991), 248 Mont. 115, 119, 809 P.2d 591, 594, we said that a failure to object to a lack of a speedy trial until four days prior to trial showed a lack of actual interest in moving the case forward to trial and should be considered in balancing the Barker factors. We conclude that defendant’s claim of the prompt assertion of his right to a speedy trial is both questionable and weak. Thompson’s failure to object to a trial date at the omnibus hearing and his further failure to request trial at an earlier date by another judge must be considered as he asserts denial of a speedy trial.

Prejudice to defendant

This Court has identified three factors which should be considered in determining prejudice: (1) pretrial incarceration; (2) anxiety and concern; and (3) impairment of defense. Hembd, 838 P.2d at 416. All are important but the most critical factor is impairment of the defense. Mooney, 809 P.2d at 595. Applying these factors to the record before us, we conclude that Thompson was not prejudiced by the delay.

Thompson was not incarcerated prior to trial. We have previously stated that a certain amount of anxiety and concern is inherent in being charged with a criminal defense and that the existence of anxiety or emotional distress is notoriously difficult to prove. State v. Curtis (1990), 241 Mont. 288, 303, 787 P.2d 306, 316. However, Thompson did not move for an earlier trial date and did not object to the date at the omnibus hearing. Moreover, nothing in the record indicates that the defense was impaired by the delay nor has Thompson alleged any such impairment. We conclude that Thompson was not prejudiced by the delay.

In sum, although the delay is properly attributable to the State, the 203-day delay was not unduly long under the circumstances of this case and the defendant has not shown that he was prejudiced. Thompson could have requested that the trial be moved forward. Further, Thompson waited until four days before trial to move for a dismissal based on a speedy trial; this appears to be a tactical ploy rather than a serious concern on his part. We conclude that the District Court did not err in denying Thompson’s motion to dismiss on speedy trial grounds.

We hold defendant was not denied his right to a speedy trial under the Montana and federal constitutions.

Affirmed.

CHIEF JUSTICE TURN AGE, JUSTICES HARRISON and NELSON concur.

JUSTICE TRIEWEILER

dissenting.

I dissent from that part of the majority opinion which concludes that the District Court did not err when it admitted statements made by defendant at his omnibus hearing, and when it instructed the jury on how to consider “admissions” and “confessions.”

Nothing that defendant said at his May 26,1992, omnibus hearing even remotely approaches an admission or a confession. In fact, he stated that he doubted he would be found guilty of having inflicted injury upon his daughter, but then argued that in the unlikely event that that occurred, the conduct of which he was accused was protected by the Constitution. His argument was not unlike arguments made by lawyers on behalf of their clients every day in both civil and criminal cases. It was a legal argument which asked the court to assume facts without admitting the truth of the facts alleged, but then requested the court to conclude that even assuming those facts to be true, they were legally insufficient.

“A confession is a direct acknowledgment of guilt on the part of the accused ....” State v. Stevens (1921), 60 Mont. 390, 402, 199 P. 256, 259. At no time during the omnibus hearing, or in the transcript that was read to the jury, did defendant acknowledge his guilt.

An admission has previously been defined by this Court as “a statement by the accused, direct or implied, of facts pertinent to the issue, and tending, in connection with proof of other facts, to prove his guilt, but of itself is insufficient to authorize a conviction.” Stevens, 60 Mont. at 402, 199 P. at 259; see also State v. Hallam (1978), 175 Mont. 492, 503, 575 P.2d 55, 62 (“[A]n ‘admission’ concerns only some specific fact which, in turn, tends to establish guilt or some element of the offense.”); State v. Goltz (1982), 197 Mont. 361, 369, 642 P.2d 1079, 1084 (“An ‘admission’ is defined as ‘an avowal or acknowledgment of a fact or of circumstances from which, together with other facts, guilt may be inferred.’ ”)

There is no fact admitted during defendant’s entire dialogue with the court which infers that he assaulted his daughter. Therefore, the entire conversation was irrelevant to the issues the jury was being asked to decide and should not have been admitted.

In addition, assuming (again for the sake of argument) that the evidence was relevant, it should have been excluded under Rule 403, M.R.Evid. It had little, if any, probative value on the issue of whether the act defendant was accused of actually occurred, and it must have created great prejudice to let the jury know that defendant held such a bizarre religious view.

In fact, the prejudicial effect of this evidence is obvious from the arguments made by the prosecutor to the jury after the close of evidence. The prosecutor effectively exploited this prejudicial evidence when he argued that:

He doesn’t think he can be prosecuted in this state for his use of force on a child based on a religious belief. Well, that is just not the law in Montana. Does your common sense tell you that that philosophy is what we should allow in the State?
Folks, this is a court of law, but you’re supposed to keep your common sense when you come in here, and doesn’t your common sense tell you that that kind of an attitude ends up with the kind of injuries that we saw on Karri Thompson?
How did this statement read? “Any action less than sacrifice would be merciful.” Well, those pictures didn’t look very merciful. Those pictures looked abusive, looked like an assault to me.
Later on in rebuttal argument, the prosecutor argued that:
Society cannot allow this Defendant, or anyone, to punish or abuse as he sees fit and then justify it on the basis of his religion or hiding behind the Bible, if you will.

It is clear from these arguments that once defendant’s comments regarding the Bible and the Constitution were read to the jury, the focus of the prosecution was largely that defendant should be punished for his religious beliefs. The issue should have been limited to whether or not defendant committed the acts of which he was accused.

The District Court’s error was compounded when it instructed the jury regarding the effect of not only admissions, but also confessions. In State v. Starr (1983), 204 Mont. 210, 217, 664 P.2d 893, 897, we stated that:

In determining whether to give an instruction, the inquiry of the District Court must only be whether any evidence exists in the record to warrant an instruction on the theory or issue submitted.

I concur with the defendant’s position that, conversely, when no evidence exists to support a submitted instruction, the instruction should not be given.

In this case, nothing in the remarks of defendant, which are set forth in the majority opinion, can be construed as an admission. If his remarks did not amount to an admission, they certainly did not amount to a confession. To even imply to the jury that something defendant said could be construed as a confession was highly prejudicial to him.

I specially concur with the majority’s conclusion that defendant was not denied his right to a speedy trial. However, I do not agree with everything that is said in that part of the opinion. Specifically, I do not agree with the majority’s conclusion that the time at which defendant asserted his right to a speedy trial should be considered in balancing the Barker factors. Either he asserted his right in a timely fashion, or he did not. The majority concluded that he did assert his right in a timely fashion, and therefore, it should simply move on to the next consideration. It seems nonsensical to say that some assertions of the right to speedy trial can be timelier than other assertions. However, in spite of this disagreement with part three of the majority’s analysis, I conclude that defendant was not denied his right to speedy trial based on a lack of evidence that he was prejudiced by the delay which occurred.

For these reasons, I would reverse the judgment of the District Court, I would exclude the transcript of defendant’s remarks made at his omnibus hearing, and I would remand to the District Court for retrial without the excluded evidence or the prejudicial and irrelevant instructions which were given.

JUSTICE HUNT joins the foregoing dissent.

JUSTICE GRAY

concurring in part and dissenting in part.

I join Justice Trieweiler’s dissent on issue one in which he concludes that the District Court erred in permitting the jury to consider certain statements made by the defendant at the omnibus hearing and in instructing the jury regarding admissions and confessions. I also join in Justice Trieweiler’s special concurrence on issue three regarding speedy trial. I dissent separately from the Court’s opinion on issue two because it is my view that the District Court erred in permitting a medical doctor to testify as to the victim’s identification of the perpetrator.

The Court relies on Rule 803(4), M.R.Evid., in concluding that Dr. Bender was entitled to repeat KT.’s statement that her stepfather was the person who had kicked her. I agree with the Court that statements made to medical doctors for the purpose of medical diagnosis and treatment are admissible under Rule 803(4) as an exception to the hearsay rule when the declarant’s motive in making the statement is consistent with seeking medical treatment and the statement is of a type reasonably relied on by a physician when making diagnosis and treatment decisions. I also agree that KT.’s statement meets the first prong of this test because her motive in making the statement was consistent with seeking medical treatment.

I disagree, however, that the portion of KT.’s statement in which she identified her stepfather as the person who had kicked her meets the second prong. The identity of the alleged perpetrator has nothing whatsoever to do with the doctor’s need to know how the injury came about. The doctor does not rely in any way on the identity of the alleged perpetrator when making diagnosis and treatment decisions; only that portion of KT.’s statement identifying the “mechanism” of the injury as repeated kicks is relevant to diagnosis and treatment. It is that portion of the statement which resulted in the taking of X-rays in this case and not, as the Court suggests, the portion in which she identified her stepfather as the person who had kicked her.

On that basis, I conclude that Dr. Bender should not have been permitted to testify as to KT.’s identification of the perpetrator. I would reverse the District Court on this issue.


text:
    STATE OF MONTANA, Plaintiff, vs. STEVEN BLAINE MIKKELSEN, Defendant.
    NO. DC-91-15
    DECISION
   On December 18,1991, the Defendant was sentenced to Count II, ten (10) years for the revocation of Sexual Assault; Count III, ten (10) years with all ten (10) years suspended for the revocation of Sexual Assault. The sentence imposed on Count III shall run consecutively with the sentence imposed on Count II, for a total sentence of twenty (20) years in the Montana State Prison, with ten (10) years suspended. The defendant shall receive credit for 111 days time served. The Court recommends that the Defendant be considered for placement in the sexual offender program and also recommends that he be considered for placement at the Swan River Camp. The suspended portion of this sentence shall be upon the conditions outlined in the December 18, 1991 Judgment.

On March 12, 1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Margaret R. Gallagher, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence be amended to Count II, ten (10) years with five (5) years suspended for the revocation of Sexual Assault; Count III, ten (10) years with all ten (10) years suspended for the revocation of Sexual Assault. The sentence imposed on Count III shall run concurrently with the sentence imposed on Count II. The defendant shall receive credit for 111 days time served. The Court recommends that the Defendant be considered for placement in the sexual offender program and also recommends that he be considered for placement at the Swan River Camp. The suspended portion of this sentence shall remain the same as the conditions imposed in the December 18, 1991 Judgment.

DATED this 12th day of March, 1993.

The reason for the amended decision is based upon the youthfulness and immaturity of the Defendant.

Hon. Thomas McKittrick, Chairman, Hon. John Warner, and Hon. James Purcell, Judges

The Sentence Review Board wishes to thank Margaret Gallagher, Legal Intern from the Montana Defender Project for her assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. GREGORY JOHN MERGENTHALER, Defendant.
    NO. BDC-92-014
    DATED this 12th day of March, 1993.
    DECISION
   On December 8,1992, the Defendant was sentenced to ten (10) years for Negligent Homicide. As a condition of defendant’s parole, he shall pay restitution for all medical and funeral expenses for the victim of his crime.

On March 12, 1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Leo Gallagher, Attorney from Helena, Montana. The state was represented by Mike McGrath, County Attorney from Helena, Montana.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, there was a split decision by the Sentence Review Division. The sentence shall be affirmed as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas McKittrick, Chairman, and Hon. John Warner

DISSENT: THE HONORABLE JAMES PURCELL DISSENTS. Judge Purcell would have changed the non-dangerous designation to dangerous designation. Based upon the Pre-sentence Investigation Report which indicates there may have been sexual violence connected with the victim in this case as well as reports of the investigator from other persons who he admittedly was associated with. Under 46-18-404(l)(b), MCA, Judge Purcell considers that the Pre-sentence Investigative Report and the evidence certainly represents that this person is a substantial danger to other persons and society. The fact that when the Defendant was asked by the Court, he appeared to be cold and calculating, in regards to the answers about the sexual references made in the Pre-sentence Report.

The Sentence Review Board wishes to thank Leo Gallagher, Attorney from Helena for his assistance to the defendant and to this Court. The Board also wishes to thank Mike McGrath for appearing on behalf of the State of Montana.


text:
    STATE OF MONTANA, Plaintiff, vs. DAVID A. HILL, Defendant.
    NO. DC-88-08
    DATED this 12th day of March, 1993.
    DECISION
   On March 26,1991, the Defendant was sentenced to Count I, twenty (20) years with eight (8) years suspended for Sexual Intercourse Without Consent; Count II, ten (10) years for Incest; both sentence shall be served concurrently. The Defendant shall not be eligible for parole until he has successfully entered and completed the inpatient sexual offender treatment program at the Montana State Prison. Credit shall be given for 356 days time served. The eight (8) years suspended shall be upon the conditions listed in the March 26,1991 Judgment.

On March 12, 1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded pro se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas McKittrick, Chairman, Hon. John Warner, and Hon. James Purcell, Judges

The Sentence Review Board wishes to thank David Hill for his assistance to the Court.