author: CHIEF JUSTICE TURNAGE

text:
    STATE MEDICAL OXYGEN AND SUPPLY, INC., a Montana corporation, Plaintiff and Appellant, v. AMERICAN MEDICAL OXYGEN CO., a Montana corporation; J. C. LYNDES, GARY GOMEZ, and RONALD WRIGHT, Defendants and Respondents.
    No. 92-249.
    Submitted on Briefs October 22, 1992.
    Decided December 17, 1992.
    49 St.Rep. 1126.
    256 Mont. 38.
    844 P.2d 100.

      For Plaintiff and Appellant: Brian L. Delaney and P. Mars Scott, Mulroney, Delaney & Scott, Missoula.
    For Defendants and Respondents: Michael G. Moses, Moses Law Firm, and Philip P. McGimpsey, Billings.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

State Medical Oxygen and Supply, Inc. (State Medical), appeals an order granting partial dismissal and partial summary judgment in favor of American Medical Oxygen Co. (American Medical). The order was entered in the Second Judicial District, Silver Bow County. We reverse and remand.

The issues raised by the parties to this appeal are:

1. Was the order entered in the Eighth Judicial District, Cascade County, binding upon the parties in subsequent judicial proceedings in the Second Judicial District, based upon res judicata and collateral estoppel?

2. Does 42 U.S.C. § 1395a expressly or impliedly bar a claim under state law for tortious interference with a business relationship?

As the parties to this litigation have been before this Court on two prior occasions, repetition of all underlying facts is unnecessary. A full recitation of the facts can be found in State Medical Oxygen and Supply, Inc. v. American Medical Oxygen Co. (1988), 230 Mont. 456, 750 P.2d 1085 (State Med I), and State Medical Oxygen and Supply, Inc. v. American Medical Oxygen Co. (1989), 240 Mont. 70, 782 P.2d 1272. However, because of the arduous nature of this lawsuit, an outline of certain facts and procedure is necessary in order to follow the events leading to this appeal.

At its inception, this lawsuit involved complaints filed in five different counties by State Medical against American Medical, certain employees of American Medical, and the directors of American Medical. Because of the similarities in the five lawsuits, the parties agreed to choose one venue to serve as the “lead case.” The Eighth Judicial District, Cascade County, was chosen for this purpose.

In its initial complaints, State Medical alleged, inter alia, that violation of § 1877(b) of the Social Security Act, 42 U.S.C. § 1395nn, gave rise to a private cause of action under Montana law. State Med I, 750 P.2d at 1086. In affirming summary judgment as to this issue, we held State Medical was not of the class the federal statute was designed to benefit and did not meet the criteria necessary to pursue a private cause of action arising from an alleged violation of the statute. State Med I, 750 P.2d at 1087-88.

On the other hand, we held the depositions of three material witnesses were relevant to a claim of tortious interference with a business relationship and should have been considered before summary judgment was granted as to all issues. State Med I, 750 P.2d at 1089. We reversed this part of the District Court’s order and granted State Medical leave to amend or supplement its pleadings as to the claim of tortious interference. State Med I, 750 P.2d at 1089. This reversal and remand set the stage for round three of this litigation bout.

After our decision in State Med I, State Medical filed amended complaints directly pleading tortious interference with a business relationship. The amended complaints were filed in all venues where an action was pending. After the amended complaints were filed, State Medical’s counsel was appointed a District Judge in Lincoln County. New counsel was substituted to represent State Medical. The parties continued to actively litigate, with Cascade County continuing to serve as the “lead case.”

In February 1990, American Medical filed a motion to dismiss and motion for summary judgment to limit damages and discovery. In early March 1990, the District Court granted American Medical’s motion. The order did not contain any analysis as to why the District Court granted this motion. Apparently, the District Court adopted the argument outlined in American Medical’s brief. American Medical’s position was that the Medicare/Medicaid customers were free to choose any qualified oxygen supplier. Therefore, American Medical argued, State Medical was barred from a private cause of action as to this class of customers regardless of whether American Medical obtained these customers via a tortious act. State Medical did not appeal or seek certification of this order.

For reasons that are not entirely clear, the parties agreed to transfer venue to the Second Judicial District, Silver Bow County. Silver Bow County was now considered the “lead case” and the parties began making preparations for trial. In all likelihood, the outcome of a trial in Silver Bow County would be controlling in the other four pending actions. In October 1991, American Medical filed a motion to dismiss and motion for summary judgment to limit damages and discovery based upon estoppel and res judicata. American Medical argued that the Silver Bow County District Court should adopt the holding of the District Court in Cascade County based upon the principles of res judicata, judicial estoppel, and collateral estoppel. Alternatively, American Medical argued the District Court should grant the motion because federal law barred a cause of action under state law as to the Medicare/Medicaid customers.

After a hearing on November 14, 1991, the District Court determined that good cause existed to grant American Medical’s motions for summary judgment and to limit damages and discovery as to the Medicare/Medicaid customers. The District Court certified its order pursuant to Rule 54(b), M.R.Civ.R This appeal followed.

I.

Was the order entered in the Eighth Judicial District, Cascade County, a final order and as such binding upon the parties and courts in subsequent judicial proceedings based upon res judicata and collateral estoppel?

The majority of American Medical’s brief attempts to persuade this Court that the order for dismissal and summary judgment entered in the District Court for the Eighth Judicial District was a final judgment on the merits. As a result, American Medical argues, because State Medical did not appeal that order, it became final and binding upon the parties and courts of concurrent jurisdiction based upon res judicata and collateral estoppel. We do not agree. American Medical’s conclusion is based upon a faulty premise and therefore is incorrect as a matter of law.

Res judicata reflects the ideal that a lawsuit should provide justice for an aggrieved party as well as a final resolution of the controversy. Brault v. Smith (1984), 209 Mont. 21, 25, 679 P.2d 236, 238. Its underlying purpose is to prevent a party from litigating a matter more than once. Brault, 679 P.2d at 238. In order for a plea of res judicata to operate as a bar and prevent the same parties from relitigating the same cause of action:

1) the parties or their privies must be the same;

2) the subject matter of the action must be the same;

3) the issues must be the same and relate to the same subject matter; and

4) the capacities of the persons must be the same in reference to the subject matter and to the issues between them. Audit Services, Inc. v. Anderson (1984), 211 Mont. 323, 327, 684 P.2d 491, 493.

However, in order for the operative criteria to apply, there must be “a final judgment on the merits by a court of competent jurisdiction ...” S-W Company v. John Wight, Inc. (1978), 179 Mont. 392, 407, 587 P.2d 348, 356. A final judgment on the merits

... is a finality as to the claim or demand in controversy, concluding [sic] parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.

S-W Company, 587 P.2d at 356 (emphasis added).

The order of dismissal and summary judgment entered by the Cascade County District Court, as to the Medicare/Medicaid customers, was not a final judgment on the merits. It was a partial order. There was no right to immediate appeal absent a determination by the District Court that there was no just reason for delay and a final judgment was entered and certified for appeal. In re the Marriage of Adams (1979), 183 Mont. 26, 28, 598 P.2d 197, 198. The order adjudicated “less than all the claims or the rights and liabilities of less than all the parties” and was “subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” Rule 54(b), M.R.Civ.P. Therefore, in a strict sense, and applicable to the case at bar, res judicata does not apply to the decision of a motion. See August v. Burns (1927), 79 Mont. 198, 215, 255 P. 737, 742.

Likewise, the doctrine of collateral estoppel is inapplicable. Like res judicata, in order for collateral estoppel to apply, a final judgment on the merits is required. Smith v. Schweigert (1990), 241 Mont. 54, 58, 785 P.2d 195, 197. As the order of partial dismissal and partial summary judgment was not a final judgment on the merits, an extended discussion is unnecessary. Suffice it to say, we hold collateral estoppel has no application to the instant case.

II.

Does 42 U.S.C. § 1395a expressly or impliedly bar a claim under state law for tortious interference with a business relationship?

We next turn our attention to whether 42 U.S.C. § 1395a bars State Medical from a private cause of action under state law for damages relating to the loss of Medicare/Medicaid customers. American Medical argues that because the Medicare/Medicaid customers are free to choose a qualified provider, 42 U.S.C. § 1395a operates to insulate it from damages regardless of whether it tortiously interfered with the business relationship between State Medical and these customers. Therefore, American Medical claims, as a matter of law the District Court in Silver Bow County was correct in its order for partial dismissal and partial summary judgment that 42 U.S.C. § 1395a bars State Medical from seeking damages as to these customers. We disagree and reverse and remand.

42 U.S.C. § 1395a in its entirety reads:

Any individual entitled to health benefits under this subchapter may obtain health services from any institution, agency, or person qualified to participate under this subchapter if such institution, agency or person undertakes to provide him such service.

42 U.S.C. § 1395a.

At first glance, the statute does not lead one to believe Congress intended to bar a cause of action under state law simply because those entitled to benefits have the right to choose from whom they want health services. It is well settled that state laws are presumed valid against preemption challenges unless Congress clearly intended they be preempted by federal law. Mountain States Telephone v. Commissioner of Labor (1979), 187 Mont. 22, 41, 608 P.2d 1047, 1057. Cipollone v. Liggett Group, Inc. (1992),_U.S._, 112 S.Ct. 2608, 2618, 120 L.Ed.2d 407. A state law can be preempted by federal law in one of three ways. K-W Industries v. National Surety Corporation (9th Cir. 1988), 855 F.2d 640, 642, n.3. First, the federal law may expressly preempt state law; second, Congress may have intended the federal law occupy the entire legal field in the area; third, the state law may conflict with the federal law. K-W Industries, 855 F.2d at 642, n.3.

Obviously, the first preemption factor is inapplicable. The plain language of 42 U.S.C. § 1395a contains no express prohibition against a claim under state law for tortious interference with a business relationship with Medicare/Medicaid customers. Effect must be given to the plain language of the statute “unless there is good reason to believe Congress intended the language to have some more restrictive meaning.” Cipollone, 112 S.Ct. at 2620.

Furthermore, the second preemption criterion does not apply and American Medical does not argue that it should. By its application to the facts presented here, state law espousing a cause of action for tortious interference with a business relationship as to Medicare/Medicaid customers does not operate to supplement the field of Social Security. Case law holds that the federal law must so thoroughly occupy the legislative field “as to make reasonable the inference that Congress left no room for the States to supplement it.” Cipollone, 112 S.Ct. at 2617. We hold the law applicable to State Medical’s cause of action does not operate to supplement the legislative field governing Medicare/Medicaid recipients’ right to choose the provider of their choice.

Finally, we address whether our state law actually conflicts with the federal law. Where the federal statute is lacking in an express Congressional command, a state law will be preempted if it actually conflicts with the federal legislation. Pacific Gas & Electric Co. v. Energy Resources Conservation and Development Commission (1983), 461 U.S. 190, 204, 103 S.Ct. 1713, 1722, 75 L.Ed.2d 752, 765. However, because of the silence of Congress, we must determine whether there is an implicit prohibition against a cause of action under state law contained in the structure and purpose of the federal law. Cipollone, 112 S.Ct. at 2617.

As we construe American Medical’s argument, it contends that one cannot “capture” the Medicare/Medicaid class of customers and that allowing a cause of action under state law as to this class of customers frustrates the purpose of the federal law. We do not agree Congress intended this to be. American Medical points to nothing in the Social Security Act itself or its legislative history to support this proposition. Likewise, it offers us no guidance with applicable case law. Furthermore, our own research does not suggest any implied prohibition.

Section 1802 (42 U.S.C. § 1395a) provides that any individual entitled to benefits under Title XVIII may obtain health services from any institution, agency, or person which is qualified to participate under the title and which undertakes to provide services to him.

1965 U.S. Code Cong. & Admin. News 1943, 2098.

In brief, the purpose of the Social Security Act is to:

1. Provide a coordinated approach for health insurance and medical care for the aged under the Social Security Administration;

2. Expand services for maternal and child health;

3. Revise and improve benefit coverage; and

4. Improve and expand public assistance programs. 1965 U.S. Code Cong. & Admin. News 1943, 1943-44.

There is no conflict between our state law allowing legal action for tortious interference with a business relationship and the purpose of the Social Security Act and in particular 42 U.S.C. § 1395a. 42 U.S.C. § 1395a simply allows a recipient of Social Security benefits to choose the provider from which he wishes to obtain health services. It does not operate to bar a cause of action under state law between competing interests as to this class of customers. We hold there is no “reliable indicium of congressional intent” to supplant state law in this case. Cipollone, 112 S.Ct. at 2619. The judgment is reversed and remanded.

JUSTICES HUNT, GRAY, McDONOUGH and WEBER concur.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff, vs. RANDALL MARK RUDOLPH, Defendant.
    NO. 7707
    DECISION
    DATED this 20th day of August, 1992.
   On May 11, 1988, the Defendant was sentenced to fifteen (15) years at Warm Springs State Hospital for Robbery. Petitioner shall be given credit for 509 days time served and shall be designated as a Dangerous Offender.

On August 20,1992, the Defendants apphcation for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentence which was imposed by Judge Wheelis. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. 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 imposed by Judge Wheelis 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. Ed McLean, Chairman, Hon. Thomas M. McKittrick, and Hon. G. Todd Baugh, Judges.

The Sentence Review Board wishes o thank Mr. Rudolph for representing himself in this matter.


author: JUDGE THOMAS McKITTRICK DISSENTS:

text:
    STATE OF MONTANA, Plaintiff, vs. GEORGE RONALD WALTERS, Defendant.
    NO. ADC-89-055
    DECISION
   On February 22,1990, the Defendant was sentenced to Count I, twenty (20) years with ten (10) years suspended with conditions for Sexual Assault. The defendant is not to be released from Montana State Prison until he has completed the sexual offender treatment program. Count H, thirty-five (35) years with ten (10) years suspended with conditions for Sexual Intercourse without Consent. Counts I and II shall be served consecutively to each other.

On August 20,1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

DATED this 20th day of August, 1992.

The Defendant was present and was represented by Michael Donahoe, Attorney from Helena. The state was represented by Steve Cameron, Legal Intern from Cascade County.

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 Board. It was decided that the sentence shall remain the same as originally imposed by Judge McCarvel, however, the sentences shall be served concurrently instead of consecutively.

It is the unanimous decision of the Sentence Review Board that a condition shall be added to the defendant’s sentence. At no time shall the defendant have unsupervised contact with any person under eighteen (18) years of age. All other portions of the sentence shall remain the same as originally imposed.

The reasons for the decision are: because both Counts I and II arise out of the same incident and (2) to bring the sentence more in line with other sentences imposed for crimes of a similar nature.

Hon. Ed McLean, Chairman and Hon. G. Todd Baugh, Judges.

JUDGE THOMAS McKITTRICK DISSENTS:

He would vote to affirm the sentence imposed by Judge McCarvel, that the sentences shall be served consecutively instead of concurrently. However, he agrees with the majority of the Board that the additional condition should be imposed.

The Sentence Review Board wishes to thank Mr. Michael Donahoe, Attorney at Law from Helena for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. EVERETT FRANCIS POWERS, Defendant.
    NO. 87-CR-46
    DECISION
   On October 27, 1987, the Defendant was sentenced to ten (10) years for Robbery; ten (10) years for Sexual Assault; ten (10) years for Sexual Intercourse without Consent; all to be served consecutively, for a total of thirty (30) years. Credit is given for 191 days time served. The defendant shall be designated a Dangerous Offender.

On August 20,1992, 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 represented himself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentence which was imposed by Judge Sullivan. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. The defendant acknowledged that he understood this and stated that he did not want to proceed. He wishes to dismiss his petition for sentence review.

DATED this 20th day of August, 1992.

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. Ed. McLean, Chairman, Hon. Thomas M. McKittrick, and Hon. G. Todd Baugh, Judges.


text:
    STATE OF MONTANA, Plaintiff, vs. CHARLES HENRY GRAVES, Defendant.
    NO. BDC-88-271
    DECISION
    DATED this 20th day of August, 1992.
   On May 5, 1989, the Defendant was sentenced to Count I, fifteen (15) years with five (5) years suspended for Burglary; Count III, six (6) months suspended for Attempted Theft; Count IV, fifteen (15) years with five (5) years suspended for Burglary; and Count V, ten (10) years for Theft. The above sentences shall be served concurrently with Count I. An additional ten (10) years are to be served consecutively to any prior sentences because the defendant is a persistent Felony Offender. Credit is given for 146 days time served.

On August 20, 1992, 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 represented himself. Steve Cameron, Legal Intern from Cascade County represented the state.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentence which was imposed by Judge McCarvel. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead wdth that decision. 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 imposed by Judge McCarvel shall be affirmed.

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. Ed McLean, Chairman, Hon. Thomas M. McKittrick, and Hon. G. Todd Baugh, Judges.

The Sentence Review Board wishes to thank Steve Cameron, Legal Intern from Cascade County for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. ANTHONY WAYNE LANKFORD, Defendant.
    NO. CDC-89-106
    DECISION
    DATED this 20th day of August, 1992.
   On September 19,1989, the Defendant was sentenced to Count I, one hundred (100) years for Deliberate Homicide plus ten (10) years for the use of a weapon to run consecutive; Count II, one hundred (100) years for Attempted Deliberate Homicide plus ten (10) years for the use of a weapon to run consecutive; Counts I and II shall run consecutive and the defendant shall be ineligible for parole and participation in the supervised release program while serving his prison term. The defendant shall be given credit for 159 days time served and shall be designated as a Dangerous Offender.

On August 20,1992, 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 represented himself. Steve Hagerman, Deputy-County Attorney from Cascade County represented the state.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentence which was imposed by Judge Joel Roth. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. 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 shall remain the same 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. Ed McLean, Chairman, Hon. Thomas M. McKittrick, and Hon. G. Todd Baugh, Judges.

The Sentence Review Board wishes to thank Mr Lankford for appearing pro se and would also like to thank Mr. Hagerman for appearing on behalf of the State of Montana.


text:
    STATE OF MONTANA, Plaintiff, vs. LLOYD DEAN DRUMMOND, Defendant.
    NO. 1252
    DECISION
   On October 18, 1989, the Defendant was sentenced to twenty (20) years for Sexual Intercourse Without Consent; not be considered eligible for parole until satisfactorily completing the Sex Offender Program at Montana State Prison.

On August 20,1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

DATED this 20th day of August, 1992.

The Defendant was present and represented himself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentence which was imposed by Judge Frank Davis. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. 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 imposed by Judge Davis 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. Ed McLean, Chairman, Hon. Thomas M. McKittrick, and Hon. G. Todd Baugh, Judges.

The Sentence Review Board wishes thank Mr. Drummond for appearing pro se.


text:
    STATE OF MONTANA, Plaintiff, vs. JAMES CHARLES PETER OLIVIERI, Defendant.
    NO. BDC-89-051
    DECISION
    DATED this 20th day of August, 1992.
   On December 7,1989, the Defendant was sentenced to Count I, one hundred (100) years for Deliberate Homicide; Count II, ten (10) years for Obstructing Justice; plus an additional ten (10) years for the use of a dangerous weapon; all above sentences shall be served consecutively. Credit is given for 275 days time served; Dangerous Offender Designation.

On August 20,1992, 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 represented himself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentence which was imposed by Judge McCarvel. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. The defendant acknowledged that he understood this and stated that he did not wish to proceed and wanted to dismiss his petition for sentence review.

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. Ed McLean, Chairman, Hon. Thomas M. McKLttrick, and Hon. G. Todd Baugh, Judges.


text:
    STATE OF MONTANA, Plaintiff, vs. LAWRENCE RICHARD SHEPPARD, Defendant.
    NO. 8938
    DECISION
    DATED this 20th day of August, 1992.
   On January 23,1990, the Defendant was sentenced to twenty (20) years with five (5) years suspended for Sexual Intercourse without Consent; plus ten (10) years as a Persistent Felony Offender with all ten (10) years suspended plus conditions. Credit is given for 151 days time served.

On August 20,1992, 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 represented himself. The state was represented by Karen Townsend, Deputy County Attorney from Missoula.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentence which was imposed by Judge Henson. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. The defendant acknowledged that he understood this and stated that he did not wish to proceed and wanted to dismiss his petition for sentence review.

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. Ed McLean, Chairman, Hon. Thomas M. McKittrick, and Hon. G. Todd Baugh, Judges.


text:
    STATE OF MONTANA, Plaintiff, vs. ROBERT HENRY GUMNESS, Defendant.
    NO. 8715
    DECISION
   On January 22,1990, the Defendant was sentenced to forty (40) years for Mitigated Deliberate Homicide; credit is given for 35 days time served.

On August 20,1992, 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 represented himself. The state was represented by Karen Townsend, Deputy County Attorney from Missoula.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentence which was imposed by Judge Henson. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. The defendant acknowledged that he understood this and stated that he wished to proceed.

DATED this 20th day of August, 1992.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence imposed by Judge Henson 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. Ed McLean, Chairman, Hon. Thomas M. McKittrick, and Hon. G. Todd Baugh, Judges.

The Sentence Review Board wishes to thank Mr. Gumness for appearing pro se. They also wish to thank Karen Townsend for appearing on behalf of the State of Montana.


text:
    STATE OF MONTANA, Plaintiff, vs. TERRY VAN NESS, Defendant.
    NO. ADC-89-94
    DECISION
   On April 12,1990, the Defendant was sentenced to twenty (20) years on each of two Counts of Sexual Intercourse Without Consent. The sentences shall be served consecutively; among the conditions of parole are to complete the Sex Offender Program at the Montana State Prison; continue mental health counseling until discharged by a therapist; have no contact with minor females except in a setting with other adults present; and assume financial responsibility for any treatment and therapy required by the victim. The defendant shall receive credit for 243 days time served and is designated as a Dangerous Offender.

On August 20, 1992, 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 represented himself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentence which was imposed by Judge McCarter. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. 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 imposed by Judge McCarter shall be affirmed. In addition, in lieu of the statement the defendant has made to the Sentence Review Board, he is ordered to sign over his interest in the family residence, by way of quick claim deed, to the children’s mother, Marjorie Van Ness. If he chooses not to do that, a further hearing will be held before this Division and Mr. Van Ness will be appointed an attorney to represent him.

DATED this 20th day of August, 1992.

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.

The reason for the additional condition is because Mr. Van Ness stated to the Sentence Review Board that he has no objection to the family home being sold as long as his half of the assets are used in the best interest of the children.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, and Hon. G. Todd Baugh, Judges.

The Sentence Review Board wishes thank Mr. Van Ness for appearing pro se.


text:
    STATE OF MONTANA, Plaintiff, vs. GARY E. RADI, Defendant.
    NO. 9037
    DECISION
    DATED this 20th day of August, 1992.
   On May 5, 1990, the Defendant was sentenced to Count I, twenty (20) years for Burglary; Count II, twenty (20) years for Burglary; the sentences shall be served consecutively with credit given for 171 days time served; Dangerous Offender.

On August 20,1992, 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 represented himself. The state was represented by Karen Townsend, Deputy County Attorney from Missoula.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentence which was imposed by Judge Green. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. The defendant acknowledged that he understood this and stated that he did not wish to proceed and wanted to dismiss his petition for sentence review.

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. Ed McLean, Chairman, Hon. Thomas M. McKittrick, and Hon. G. Todd Baugh, Judges.


text:
    STATE OF MONTANA, Plaintiff, vs. CURTIS ALAN PAULSON, Defendant.
    NO. BDC-89-108A
    DECISION
    DATED this 20th day of August, 1992.
   On December 7, 1989, the Defendant was sentenced to twenty (20) years with five (5) years suspended for Criminal Possession of Dangerous Drugs with Intent to Sell. The Defendant was given a $30,000 fine plus conditions, and shall not be eligible for parole during the first five (5) years of his sentence. Credit is given for 71 days time served.

On August 20,1992, the Defendants application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentence which was imposed by Judge McKittrick. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. The defendant acknowledged that he understood this and stated that he did not wish to proceed but wanted to dismiss his case.

The petition was dismissed without prejudice at this time. Upon showing of good cause, the petitioner can reapply for Sentence Review at a later date.

Hon. Ed McLean, Chairman, Hon. Robert J. Boyd, Acting Member and Hon. G. Todd Baugh, Judges.


text:
    STATE OF MONTANA, Plaintiff, vs. EUGENE WILBUR BOUSQUET, Defendant.
    NO. Dc-89-20
    DECISION
   On May 15, 1990, the Defendant was sentenced to ten (10) years for Possession of a Deadly Weapon by a Prisoner. This sentence shall be served consecutively with the current term being served.

On August 21,1992, 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 represented himself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentence which was imposed by Judge Sullivan. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. The defendant acknowledged that he understood this and stated that he wished to proceed.

DATED this 21st day of August, 1992.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence imposed by Judge Sullivan 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. Ed McLean, Chairman, Hon. Thomas M. McKittrick, and Hon. G. Todd Baugh, Judges.

The Sentence Review Board wishes to thank Mr. Bousquet for appearing pro se.


author: JUSTICE WEBER JUSTICE GRAY JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. GEORGE FRED ALLEN, Defendant and Appellant.
    No. 91-506.
    Submitted on Briefs August 6, 1992.
    Rehearing Denied January 21, 1993.
    Decided December 18, 1992.
    49 St.Rep. 1130.
    256 Mont. 47.
    844 P.2d 105.

      For Defendant and Appellant: Chris Christensen, Kalispell.
    For Plaintiff and Respondent: Marc Racicot, Attorney General, John Paulson, Assistant Attorney General, Helena; Ted O. Lympus, County Attorney, Kalispell.
   JUSTICE WEBER

delivered the Opinion of the Court.

Following a jury trial in the District Court for the Eleventh Judicial District, Flathead County, defendant was convicted of criminal possession of dangerous drugs with intent to sell, in violation of Section 45-9-103(1), MCA. Defendant appeals. We affirm.

The parties state the issue as whether the District Court properly denied defendant’s motion to suppress. We restate the issues as follows.

1. Were defendant’s Fourth Amendment rights violated when law enforcement officers made a warrantless stop and search of his truck?

A. Was there probable cause?

B. Were there exigent circumstances?

2. Did defendant consent to the search of his truck?

3. Did the District Court err in denying defendant’s motion to suppress?

On Saturday, April 7,1990, Sergeant Fisher of the Kalispell Police Department (KPD) called Officer Christensen at home and informed him that a woman, April Allen, had come to the police station with some information on drugs. Officer Christensen interviewed Ms. Allen early that afternoon. She told him that her father-in-law, defendant George Allen, had gone to Tucson, Arizona, to pick up a load of marijuana and was bringing it back that evening in an old yellow Ford pickup truck. She also informed the officers that defendant hid the marijuana in spare tires and that he broke down the spare tires in the basement of his residence. Officer Christensen testified that although he had not previously spoken with Ms. Allen, the information she gave was similar to information he had received in the past from other informants.

Officer Christensen helped organize a stakeout on Highway 2, west of Kalispell, to intercept defendant before he reached his home. Sergeant Fulton testified that Officer Christensen, Officer Sward and he were on the stakeout together from 5:00 p.m. Saturday afternoon. He further testified that at 1:30 a.m., he advised Officer Sward to go home and get some rest because he had been up for almost 24 hours. Shortly before 2 a.m. on April 8, 1990, Officer Christensen and Sergeant Fulton observed defendant’s yellow Ford truck drive by the stakeout location. The officers stopped the truck. Defendant testified that Officer Christensen was standing in the opposite lane of Highway 2, holding a gun on him when he ordered him to show his identification and to step out of the truck.

Defendant was pat-searched when he exited the truck. He was then taken to the rear of the vehicle to stand in front of the police car’s headlights. Sergeant Fulton was standing on the passenger side of the police car between the opened passenger door of the police car and the car itself with an AR-15 assault rifle pointed at defendant.

Officer Christensen advised defendant that he had been stopped because they had received information that he was transporting marijuana back from Arizona. Officer Christensen then advised defendant of his Miranda rights. Defendant asked Officer Christensen if he was under arrest, to which Officer Christensen responded “not at this time”. Defendant testified that he was asked to sign a search consent form and that he deified such consent to search. Officer Christensen testified that defendant verbally consented to the search but refused to sign the consent form.

The officers at the scene radioed Officer Sward and requested that he return to the scene. Officer Rick Jensen also arrived at the scene with his dog (the “drug dog”) that was trained in the detection of marijuana. Officer Jensen opened the topper on the truck, picked up the dog, and placed him inside. Officers Jensen and Sward then conducted a search of the vehicle. The drug dog showed a strong interest in a spare tire located in the truck box and on the right front tire of an ‘86 Mazda being towed by defendant on a trailer. Following the dog’s alert to the tire, Officer Christensen informed defendant that the truck, Mazda and trailer would be impounded.

The investigatory stop took approximately 85 minutes. Defendant was held at gun point for approximately 50 minutes. The truck was impounded but defendant was not arrested at that time. Officer Christensen gave defendant a ride home.

Once at his residence, defendant was asked for permission to search his home. Again, the State maintains that he gave verbal permission to search but declined to sign a consent form; and again, defendant maintains that he gave no consent to search. Nonetheless, a search was conducted, and the officers found a tool used to break down tires in defendant’s basement. The officers seized the tool.

On Monday, April 9, 1990, Officer Christensen obtained a search warrant for defendant’s truck. Inside the spare tire the officer found four garbage bags containing a total of 15.8 pounds of marijuana.

Defendant was subsequently arrested and charged with criminal possession of dangerous drugs with intent to sell, in violation of Section 45-9-103(1), MCA.

A suppression hearing was held on May 23 and May 24, 1991. Following the hearing, the District Court denied defendant’s motion to suppress the evidence discovered as a result of the stop, search, and seizure of his vehicle. Defendant appeals, challenging the propriety of the stop and warrantless search of his truck on April 8, 1990, as well as the warrant search of his spare tire on April 9,1990.

I

Were defendant’s Fourth Amendment rights violated when law enforcement officers made a warrantless stop and search of his truck?

With regard to the necessity of a warrant, Article II, Section 11 of the Montana Constitution in pertinent part provides:

Section 11. Searches and seizures. The people shall be secure in their persons, papers, homes and effects from unreasonable searches and seizures. No warrant to search any place ... shall issue without describing the place to be searched ..., or without probable cause, supported by oath or affirmation reduced to writing.

The requirements for searches and seizures are set forth in Section 46-5-101, MCA, which provides:

Searches and seizures — when authorized. A search of a person, object, or place may be made and evidence, contraband, and persons may be seized in accordance with Title 46 when a search is made:
(1) by the authority of a search warrant; or
(2) in accordance with recognized exceptions to the warrant requirement.

An exception to the warrant requirement is the “automobile exception,” which “requires two things (1) the existence of probable cause to search; and (2) the presence of exigent circumstances, that is, that it was not practicable under the circumstances to obtain a warrant.” State v. Cripps (1978), 177 Mont. 410, 422, 582 P.2d 312, 319, citing State v. Amor (1974), 164 Mont. 182, 520 P.2d 773; and Coolidge v. New Hampshire (1971), 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564.

A. Was there probable cause?

Probable cause requires only a probability of criminal activity, not a prima facie showing. State v. Dess (1982), 201 Mont. 456, 655 P.2d 149. In its order denying the motion to suppress, the District Court first set forth the relevant facts from which it concluded that the officers had probable cause to stop and search defendant’s truck. Those facts were known to the officers at the time they stopped the truck, and were eventually included in Officer Christensen’s application for a search warrant.

The court stated that in October 1984, the Flathead County Sheriff’s Office received a report from the Rocky Mountain Information Network that defendant had drug connections in New York and New Jersey and that he was involved in drugs and prostitution. It further noted that in May of 1989, an anonymous informant reported to Officer Christensen that defendant was bringing kilos of marijuana back from Tucson, Arizona in spare tires and that defendant made deliveries in each state he passed through on his way back to Montana.

The court further noted that Don Bird, a convicted drug user, stated to Officer Christensen that defendant was his supplier and that defendant brought back large quantities of marijuana from Arizona. Officer Christensen considered Bird to be rehable because of his familiarity with the drug scene and because other names he provided were of other drug users known as such to the police. Although Don Bird testified at the suppression hearing that he did not remember defendant ever supplying him with drugs, Officer Christensen testified that he was present at a recorded interview with Bird in which Bird stated that defendant had sold him marijuana on one occasion and that defendant was bringing marijuana back from Tucson. The tape recording was played for the District Court.

The District Court found that another confidential informant had reported in early 1989 that defendant had supplied the informant with marijuana which defendant had brought back from Arizona.

Finally, the District Court found that on April 7, 1990, Officer Christensen met with Ms. Allen, who told him that defendant would be coming in from Arizona that evening with a large quantity of marijuana in a spare tire in the back of a yellow Ford pickup belonging to defendant.

In conclusion, the District Court stated:

Here, the police had specific information from various informants that Defendant Allen regularly transported large quantities of drugs from Tucson to Kalispell. A family member, who spent a great deal of time with the Defendant and would be in a unique position to know, contacted the police, gave them the description of Allen’s pickup truck and the approximate time and place of his arrival into the Flathead. She also stated that Allen would be transporting marijuana in the spare tire of this vehicle. The police verified that Defendant owned a pickup matching the description given as well as his resident address. The police were present at the time and place as stated by the family member, and Defendant appeared, driving a vehicle matching the description given. At this point, the police had probable cause to believe that illegal activity was occurring and were therefore entitled to conduct the search which led to discovery of the spare tire containing the marijuana which is the subject of the suppression motion. The search being proper, the fruits of the search are admissible.

We agree with the District Court’s conclusion that the evidence clearly established probable cause. We hold that the officers had probable cause to believe that defendant was transporting contraband, and had probable cause to stop defendant’s vehicle.

B. Were there exigent circumstances?

Defendant maintains that his Fourth Amendment right to be free from unreasonable search and seizure was violated when the police stopped him on Highway 2 without a warrant, held him at gun point, searched his truck and impounded it. He maintains that the police had ample time to obtain a search warrant the night of the stop, and the officer’s failure to obtain a warrant under these circumstances violated his Constitutional rights. He contends that since there were three officers on the stakeout until 1:30 a.m., one of them could have obtained a search warrant before sending Officer Sward home at 1:30 a.m. to “get some rest.” He maintains that there were no exigent circumstances which would justify a warrantless stop and search since the officers had all the information they needed to obtain a warrant hours before the stop.

The State contends that a warrantless search was justified by exigent circumstances: (1) that there was not time to secure a warrant; and (2) that there were not enough officers available to safely conduct the stakeout. Relying in part on Officer Christensen’s testimony, the State maintains that it would have taken four hours or more to obtain a search warrant since it was Saturday and thus more difficult to find a judge and the county attorney. Officer Christensen testified he thought it was more important to set up the stakeout as soon as possible. He further testified that there were not enough officers available at the time to get a warrant and organize a stakeout in time. He testified he was concerned about defendant’s reputed dangerousness and believed that it was necessary to have more than one officer available at the stop.

In the recent case of California v. Acevedo (1991),_U.S._, 111 S.Ct. 1982, 114 L.Ed.2d 619, the United States Supreme Court considered various cases which had addressed warrantless searches of automobiles and luggage and other containers in automobiles. The court referred to Carroll v. United States (1924), 267 U.S. 132, 45 S.Ct. 280, 569 L.Ed. 543, where the Supreme Court in pertinent part stated:

It therefore held that a warrantless search of an automobile based upon probable cause to believe that the vehicle contained evidence of crime in the light of an exigency arising out of the likely disappearance of the vehicle did not contravene the Warrant Clause of the Fourth Amendment. (Citation omitted.)
The court refined the exigency requirements in Chambers v. Maroney [399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970)] ... when it held that the existence of exigent circumstances was to be determined at the time the automobile is seized. (Citation omitted.)

Acevedo, 111 S.Ct. at 1986. The court discussed the various cases and concluded that it was appropriate to have one clear-cut rule to govern automobile searches and stated in pertinent part:

We conclude that it is better to adopt one clear-cut rule to govern automobile searches and eliminate the warrant requirement for closed containers set forth in Sanders.
VI
The interpretation of the Carroll doctrine set forth in [United States v.] Ross [456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982)] now applies to all searches of containers found in an automobile. In other words, the police may search without a warrant if their search is supported by probable cause. The court in Ross put it this way:
“The scope of a warrantless search of an automobile ... is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found.” (Citation omitted.)
The police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained.

Acevedo, 111 S.Ct. at 1991.

The Acevedo court defined exigent circumstances as those circumstances where it is not practicable to secure a warrant because the vehicle in question can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. Acevedo, 111 S.Ct. 1982, citing Carroll v. United States (1925), 267 U.S. 132, 153, 45 S.Ct 280, 285, 69 L.Ed. 543.

In this case the police set up a stakeout and stopped defendant’s vehicle on the highway a few miles from his home. The defendant’s daughter-in-law had indicated to the police that the defendant would arrive some time during the evening but the police did not know exactly the time when the defendant would arrive. The stakeout started at 5 p.m. on Saturday and continued until just before 2 a.m. the following morning. Three officers manned the stakeout until 1:30 a.m. when one officer was allowed to go home and get rest because he had been up for almost 24 hours. The contention of the defendant is that since there were three officers on the stakeout until 1:30 a.m., one of the officers could have obtained a search warrant. He therefore contends there were no exigent circumstances which would justify the warrantless search.

The contentions of the defendant disregard salient facts presented by the prosecution. Officer Christensen testified that defendant was extremely dangerous. His testimony included the following:

Q. And why would you have had your gun drawn?
A. I have talked to a number of people about Mr. Allen and they indicated that he was — had mob connections in New York and that he was involved with Mexican Mafia in Arizona. And everybody I talked to believed that Mr. Allen was a dangerous person and everyone I talked to refused to have their name used because they felt that he was extremely dangerous. And I took them at their word.
Q. You mean people who had provided you with information?
A. People who had provided me with information.
Q. Expressed a fear of him?
A. Yes, a great fear.

The stakeout took place on Saturday evening and night. Officer Christensen testified that obtaining a search warrant on Saturday evening or Saturday night would have taken approximately four hours. We conclude there were exigent circumstances which made it impracticable to secure a search warrant.

We hold that defendant’s Fourth Amendment rights and Montana constitutional rights were not violated when law enforcement officers made a warrantless stop and search of his truck.

II

Did defendant consent to the search of his truck?

Because we held that there was probable cause to search defendant’s truck, the issue of consent is irrelevant and we need not discuss it. State v. Evjen (1988), 234 Mont. 516, 765 P.2d 708.

III

Did the District Court err in denying defendant’s motion to suppress?

Based on our holding on the first issue, we conclude that the District Court correctly denied defendant’s motion to suppress.

IV

We note that defendant has raised several other issues on appeal. However, we find it unnecessary to review any of these issues due to their lack of merit or the fact that some of them were raised for the first time on appeal and therefore, not properly before this Court.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, TRIEWEILER and McDONOUGH concur.

JUSTICE GRAY

dissenting.

I respectfully dissent from the opinion of the majority. The facts of this case do not meet the “exigent circumstances” test for the so-called automobile exception to the search warrant requirement. I would reverse the District Court’s denial of appellant’s motion to suppress.

The majority correctly notes our definition of “exigent circumstances,” namely, that it was not practicable to obtain a warrant under the circumstances. State v. Cripps (1978), 177 Mont. 410, 422, 582 P.2d 312, 319. “Practicable” is defined by both Webster’s Third International Dictionary and Black’s Law Dictionary (Rev. 4th Ed.) as possible to perform or capable of being done or accomplished. The term certainly does not mean, and has never been construed to mean, merely convenient. The majority’s conclusion that the facts of this case meet the exigent circumstances test renders that test null and void insofar as it has heretofore protected the Fourth Amendment rights of Montanans. The constitutional requirement for search warrants has given way to a “convenience” analysis. I cannot agree.

The relevant and undisputed facts relied on by the majority are as follows. Early in the afternoon of April 7,1990, officers received a tip from appellant’s daughter-in-law. The tip was consistent with earlier information received by law enforcement, but never acted upon, that appellant was involved with drugs. A procedure was in place for obtaining warrants on weekends. It would have taken approximately four hours to obtain a search warrant, given the fact that April 7 was a Saturday. The officers did not attempt to obtain a warrant. Instead, by 5:00 p.m., three officers had established a stakeout. Because appellant was considered dangerous, law enforcement believed it necessary to have “more than one” officer present at the stakeout. The officer in charge believed that it was more important to set up the stakeout than to obtain a warrant. The three officers remained at the stakeout from 5:00 p.m. until 1:30 a.m., at which point one of the officers was allowed to leave. Appellant drove past the stakeout location at approximately 2:00 a.m., and was stopped; his automobile subsequently was searched at the scene.

The majority relies on specific facts and arguments to support its conclusion that these facts meet the exigent circumstances test: that there was not time to obtain a warrant; that more than one officer was needed at the stakeout; and that the officer believed it was “more important” to set up the stakeout than to obtain a warrant. The majority’s reliance is flawed.

First, it is simply not the case, and the record does not support the assertion, that there was insufficient time to obtain the warrant. Rather, the record makes it clear that a procedure was in place for obtaining warrants on weekends and that it would have taken approximately four horns to do so. In other words, given that four hours elapsed from the time the tip was received until the stakeout was in place, the search warrant could have been obtained by the time the stakeout was established. Second, the officer’s belief that more than one officer was needed at the stakeout location adds nothing to the exigency of the circumstances here. In fact, by 5:00 p.m., three officers were at the stakeout and remained there in excess of eight hours, at which time one was allowed to leave. No testimony supports the need for three officers at the stakeout; nor does anything in the record or in the majority’s analysis support the notion that all three officers were needed for the entire time between receipt of the tip and 5:00 p.m. to the extent that no one was available to obtain a warrant. Finally, the majority’s reliance on the officer’s belief that it was “more important” to set up the stakeout than to obtain a warrant, as somehow helping to create exigent circumstances here, is chilling indeed. I do not question the officer’s belief; I do submit that the relative priorities placed on such matters by law enforcement officers is based on considerations unrelated to this Court’s obligation to uphold the public’s constitutional right to be free from unreasonable searches.

The facts of this case are clear that there was sufficient time and sufficient staff available to obtain a warrant. Under these facts, the “exigent circumstances” test was not met and appellant’s Fourth Amendment rights were violated.

JUSTICE HUNT

dissenting.

I dissent. The facts of this case do not justify a warrantless search. The officers had ample time and resources to obtain a search warrant from either the two District Court Judges located in the county, or from the Justice of the Peace. The fact that the officer who remained did not request additional assistance after letting one of the officers go home, demonstrates that the officers were not in great fear for their safety. The Constitution should not be suspended merely because it might take some extra effort on the part of the authorities to obtain a warrant. The Constitution applies seven days a week, twenty-four hours a day, holidays included.

I would reverse the District Court and suppress the evidence obtained by the illegal search.


text:
    STATE OF MONTANA, Plaintiff, vs. NATHAN TENAS, Defendant.
    NO. Dc-82-79
    DECISION
    DATED this 21st day of August, 1992.
   On May 30, 1990, the Defendant was sentenced to five (5) years for revocation of Burglary; with credit for 323 days time served.

On August 21,1992, 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 represented himself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentence which was imposed by Judge C. B. McNeil. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. The defendant acknowledged that he understood this and stated that he did not wish to proceed and wanted to dismiss his petition for sentence review.

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. Ed McLean, Chairman, Hon. Thomas M. McKittrick, and Hon. G. Todd Baugh, Judges.


text:
    STATE OF MONTANA, Plaintiff, vs. RODNEY WAGONHOFFER, Defendant.
    NO. 90-017
    DECISION

      DATED this 21st day of August, 1992.
   On July 30,1990, the Defendant was sentenced to Count I, ten (10) years for Sexual Intercourse Without Consent; Count II, ten (10) years for Sexual Intercourse Without Consent; the sentences shall be served concurrently and credit is given for three (3) days time served.

On August 21,1992, 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 represented himself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentence which was imposed by Judge H. R. Obert. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. The defendant acknowledged that he understood this and stated that he did not wish to proceed and wanted to dismiss his petition for sentence review.

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. Ed McLean, Chairman, Hon. Thomas M. McKittrick, and Hon. G. Todd Baugh, Judges.


text:
    STATE OF MONTANA, Plaintiff, vs. MATTHEW SCOTT WALDEN, Defendant.
    NO. DC-90-089(b)
    DECISION
   On September 4, 1990, the Defendant was sentenced to fourteen (14) years for Criminal Sale of Dangerous Drugs; with credit given for 194 days time served.

On August 21,1992, 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 represented himself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentence which was imposed by Judge Keedy. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. 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 imposed by Judge Keedy shall be affirmed. However, Judge Baugh and Judge McLean both agree that the sentence for Criminal Sale of Dangerous Drugs shall be served concurrently with any incarceration for the Burglary and Felony Theft charges from Judge Erickson’s Court if there was in fact a revocation.

The reason for the decision to affirm Judge Keedy’s original sentence is because 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.

DATED this 21st day of August, 1992.

The reason for the running the sentences concurrently is it appears to be an excessive amount of time for this defendant to spend incarcerated when he is such a youthful offender.

Hon. Ed McLean, Chairman and Hon. G. Todd Baugh, Judges.

HON. THOMAS McKTTTRICK agrees with the sentence imposed by Judge Keedy, however, he feels that any incarceration for the Burglary and Felony Theft charges should be run consecutively to the Criminal Sale of Dangerous Drugs sentence.

The Sentence Review Board wishes to thank Mr. Walden for appearing pro se.


text:
    STATE OF MONTANA, Plaintiff, vs. LOREN ROBERT BAKER, Defendant.
    NO. ADC-89-160
    DECISION
    DATED this 21st day of August, 1992.
   On July 19, 1990, the Defendant was sentenced to Count I, twenty (25) years for Robbery; Count II, six (6) months in the Lewis and Clark County Jail for Reckless Driving; Count III, six (6) months in the Lewis and Clark County Jail for Carrying a Concealed Weapon; and the term of the sentence is enhanced by ten (10) years for the use of a deadly weapon in the commission of a crime; credit is given for time served; Dangerous Designation.

On August 21,1992, 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 represented himself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentence which was imposed by Judge McCarter. This hoard has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would he rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. 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 imposed by Judge McCarter shall remain the same as originally imposed.

The reason for 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. Ed McLean, Chairman, Hon. Thomas M. McKittrick, and Hon. G. Todd Baugh, Judges.

The Sentence Review Board wishes to thank Mr. Baker for appearing pro se.


text:
    STATE OF MONTANA, Plaintiff, vs. CARL LEO ORSBORN, Defendant.
    NO. DC-90-35
    DECISION
    DATED this 25th day of September, 1992.
   On October 25,1990, the Defendant was sentenced to forty (40) years with ten (10) years suspended for Mitigated Deliberate Homicide, plus an additional ten (10) years with five (5) years suspended for the use of a weapon. These terms shall run consecutive to each other and the defendant was designated a Dangerous Offender.

On May 8,1992, 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 Cynthia Jones, 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.

It is the 'unanimous decision of the Sentence Review Division that this case shall be remanded back to Judge Keller for listing of the reasons for the dangerous designation as well as reasons for the sentence.

On August 7,1992, the Hon. Robert Keller submitted his Response to the Sentence Review Board and listed nine (9) separate reasons for the dangerous designation as well as reasons for the sentence.

On September 25, 1992, after careful consideration of Judge Keller’s Response, it is the unanimous decision of the Sentence Review Division that Judge Keller’s decision shall he affirmed. 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. Ed McLean, Chairman, Hon. Thomas M. McKittrick, and Hon. G. Todd Baugh, Judges.

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


text:
    STATE OF MONTANA, Plaintiff, vs. DAVID A. HILL, Defendant.
    NO. DC-88-08
    DECISION

      DATED this 25th day of September, 1992.
   On March 26,1991, the Defendant was sentenced to Count I, twenty (20) years with eight (8) years suspended with conditions for Sexual Intercourse Without Consent; Count II, ten (10) years for Incest. The sentences shall be served concurrently and the defendant shall not be eligible for parole until he successfully completes the sex offender treatment program at Montana State Prison. Credit is given for 356 days time served.

On September 25,1992, 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 is here to consider the sentence which was imposed by Judge C. B. McNeil. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. The defendant acknowledged that he understood this and stated that he did not want to proceed at this time. He requested that his petition be dismissed with the right to reapply.

IT IS HEREBY ORDERED THAT the Petition for Sentence Review shall be dismissed without prejudice. Upon showing of good cause, the petitioner can reapply for Sentence Review at a later date.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, and Hon. G. Todd Baugh, Judges.


text:
    STATE OF MONTANA, Plaintiff, vs. JOSEPH EDWARD HANKINSON, Defendant.
    NO. Dc-91-73
    DECISION
   On November 5, 1991, the Defendant was sentenced to fifteen (15) years with ten (10) years suspended plus conditions for Sexual Intercourse Without Consent; plus credit for time served as stated in the November 5, 1991 Judgment.

On September 25,1992, 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 is here to consider the sentence which was imposed by Judge Thomas A. Olson. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative, to increase the sentence, the proceedings will be stayed, and an attorney would be appointed. The proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. The defendant acknowledged that he understood this and stated that he did not want to proceed, but wanted his case dismissed.

DATED this 25th day of September, 1992.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the petitioner’s request is hereby granted and the Petition for Sentence Review shall be dismissed with prejudice.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, and Hon. G. Todd Baugh, Judges.


text:
    STATE OF MONTANA, Plaintiff, vs. TERRANCE G. KLOSTERMEIER, Defendant.
    NO. 868
    DECISION
    DATED this 25th day of September, 1992.
   On September 5, 1991, the Defendant was sentenced to eight (8) years for the revocation of Burglary. Credit is given for 21 days time served, plus conditions.

On September 25,1992, 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 is here to consider the sentence which was imposed by Judge M. James Sorte. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. The defendant acknowledged that he understood this and stated that he wished to have his petition dismissed with the right to refile.

IT IS HEREBY ORDERED THAT the Petition for Sentence Review shall be dismissed without prejudice. Upon showing of good cause, the petitioner can reapply for Sentence Review at a later date.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, and Hon. G. Todd Baugh, Judges.


text:
    STATE OF MONTANA, Plaintiff, vs. EDWARD ADOLPH KADUBECK, Defendant.
    NO. 90-Dc-008
    DECISION
   On September 11, 1991, the Defendant was sentenced to five (5) years for the revocation of Felony Assault. Credit is given for 30 days time served pursuant to the original Judgment. Credit is given for time served while on probation. Plus the defendant received terms of parole as stated in the September 11,1991, Judgment.

On September 25,1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

DATED this 25th day of September, 1992.

The Defendant was present and represented himself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentence which was imposed by Judge R. D. McPhillips. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. The defendant acknowledged that he understood this and stated that he did not wish to proceed, hut wanted his case dismissed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the petitioner’s request is hereby granted and the Petition for Sentence Review shall be dismissed with prejudice.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, and Hon. G. Todd Baugh, Judges.


text:
    STATE OF MONTANA, Plaintiff, vs. DWIGHT DAVID HILL, Defendant.
    NO. DC-90-36
    DECISION
    DATED this 25th day of September, 1992.
   On April 9, 1991, the Defendant was sentenced to fifteen (15) years for Felony Sexual Assault without Consent; credit is given for sixty (60) days time served. The sentence is to be served concurrently with two (2) six (6) month sentences from Lewistown City Court.

On September 25,1992, 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 represented himself. The State was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentence which was imposed by Judge Peter Rapkoch. This hoard has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will he stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. The defendant acknowledged that he understood this and stated that he did not want to proceed, but wanted his case dismissed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the petitioner’s request is hereby granted and the Petition for Sentence Review shall he dismissed with prejudice.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, and Hon. G. Todd Baugh, Judges.


text:
    STATE OF MONTANA, Plaintiff, vs. KENNETH D. ELLIS, Defendant.
    NO. DC-90-2351
    NO. DC-90-2367
    DECISION
    DATED this 25th day of September, 1992.
   On December 21, 1990, the Defendant was sentenced to two (2) ten (10) year sentences which run consecutively to each other. The second ten (10) year sentence is hereby suspended upon terms and conditions as stated in the December 21, 1990 Judgment.

On September 25,1992, 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 represented himself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentence which was imposed hy Judge Frank M. Davis. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. The defendant acknowledged that he understood this and stated that he did not wish to proceed, but wanted his case dismissed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the petitioner’s request is granted and the petition for Sentence Review shall be dismissed with prejudice.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, and Hon. G. Todd Baugh, Judges.


text:
    STATE OF MONTANA, Plaintiff, vs. RICHARD JAMES CHRISTIAN, Defendant.
    NO. DC-90-237
    DECISION
   On July 24, 1991, the Defendant was sentenced to twenty (20) years with ten (10) years suspended for Sexual Assault. The defendant is subject to conditions as stated and is not eligible for parole until he completes the substance abuse treatment and sex offender treatment at Montana State Prison.

On September 25,1992, 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 represented himself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentence which was imposed by Judge Leif Erickson. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. The defendant acknowledged that he understood this and stated that he did not wish to proceed but wanted his case dismissed.

DATED this 25th day of September, 1992.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the petition for Sentence Review shall be dismissed with prejudice.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, and Hon. G. Todd Baugh, Judges.


text:
    STATE OF MONTANA, Plaintiff, vs. ROBERT DAVID LINN, Defendant.
    NO. CDC-90-151
    DECISION
    DATED this 25th day of September, 1992.
   On December 4, 1990, the Defendant was sentenced to twenty (20) years for the Criminal Sale of Dangerous Drugs. Credit is given for 151 days time served. The sentence shall run consecutively to the terms for prior felony sentences currently being served; Dangerous Designation.

On September 25,1992, 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 represented himself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentence which was imposed by Judge Mizner. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. The defendant acknowledged that he understood this and stated that he did not wish to proceed. He requested that his petition be dismissed at this time with the right to refile.

IT IS HEREBY ORDERED THAT the Petition for Sentence Review shall be dismissed without prejudice. Upon showing of good cause, the petitioner can reapply for Sentence Review at a later date.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, and Hon. G. Todd Baugh, Judges.


text:
    STATE OF MONTANA, Plaintiff, vs. ROBERT DAVID LINN, Defendant.
    NO. DC-91-29
    DECISION

      DATED this 25th day of September, 1992.
   On October 22, 1991, the Defendant was sentenced to five (5) years for Criminal Possession of Dangerous Drugs with Intent to Sell to be served consecutively to the term he is currently serving at Montana State Prison.

On September 25,1992, 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 represented himself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentence which was imposed by Judge Mizner. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. The defendant acknowledged that he understood this and stated that he did not wish to proceed. He requested that his petition be dismissed at this time with the right to refile.

IT IS HEREBY ORDERED THAT the Petition for Sentence Review shall be dismissed without prejudice. Upon showing of good cause, the petitioner can reapply for Sentence Review at a later date.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, and Hon. G. Todd Baugh, Judges.


text:
    STATE OF MONTANA, Plaintiff, vs. MARTY RONALD HAYWORTH, Defendant.
    NO. BDC-90-031
    DECISION
   On March 15,1991, the Defendant was sentenced to ten (10) years with five (5) years suspended for Forgery; plus restitution and conditions as stated.

On September 25,1992, 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 represented himself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentence which was imposed by Judge John McCarvel. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. 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.

DATED this 25th day of September, 1992.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, and Hon. G. Todd Baugh, Judges.

The Sentence Review Board wishes thank Marty Hayworth for appearing pro se.


text:
    STATE OF MONTANA, Plaintiff, vs. DANIEL JAMES KENMILLE, Defendant.
    NO. DC-91-39
    NO. DC-91-107
    DECISION
    DATED this 25th day of September, 1992.
   On November 20, 1991, the Defendant was sentenced to DC-91-39, ten (10) years for Criminal Possession with Intent to Sell and an additional seven (7) years for being a Persistent Offender. Credit is given for 211 days time served plus a $20. surcharge.

On December 18, 1991, the Defendant was sentenced to DC-91-107, Count I, ten (10) years for Felony Assault; Count II, ten (10) years for Escape. The sentences are to be served consecutively to each other and also consecutive to DC-91-39. The defendant shall be given credit for 53 days time served; and he shall be designated as a dangerous offender for parole eligibility.

On September 25,1992, 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 represented himself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentences which were imposed by Judge Brownlee and Judge Harkin. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. The defendant acknowledged that he understood this and stated that he did not wish to proceed. He requested that his petition be dismissed at this time with the right to refile.

IT IS HEREBY ORDERED THAT the Petition for Sentence Review shall he dismissed without prejudice. Upon showing of good cause, the petitioner can reapply for Sentence Review at a later date.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, and Hon. G. Todd Baugh, Judges.


text:
    STATE OF MONTANA, Plaintiff, vs. RICHARD DAVID POKORNEY, Defendant.
    NO. DC-85-020b
    DECISION

      DATED this 25th day of September, 1992.
   On April 10, 1991, the Defendant was sentenced to twelve (12) years with two (2) years suspended for the revocation of Deviate Sexual Conduct. The defendant shall not be eligible for parole until he completes the sex offender treatment program at the Prison. Credit is given for time served from 12/20/90 to 4/10/91 and credit is given for time served on probation from 8/12/85 through 9/26/89.

On September 25,1992, 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 represented himself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentence which was imposed by Judge Michael Keedy. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. The defendant acknowledged that he understood this and stated that he did not want to proceed. He requested that his petition be dismissed at this time with the right to refile.

IT IS HEREBY ORDERED THAT the petition for Sentence Review shall be dismissed without prejudice. Upon showing of good cause, the petitioner can reapply for Sentence Review at a later date.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, and Hon. G. Todd Baugh, Judges.


text:
    STATE OF MONTANA, Plaintiff, vs. TARROW DUANE JONES, Defendant.
    NO. 9267
    DECISION
   On October 30, 1990, the Defendant was sentenced to Count n, twenty (20) years with ten (10) years suspended for Attempted Sexual Intercourse Without Consent; Count III, six (6) months in the Missoula County Jail for Sexual Assault, a misdemeanor; Count IV, twenty (20) years with ten (10) years suspended for Sexual Intercourse Without Consent; Count V, six (6) months in the Missoula County Jail for Assault, a misdemeanor; Count VII, six (6) months in the Missoula County Jail for Sexual Assault, a misdemeanor; all sentences are to be served concurrently. The defendant shall not be eligible for parole until he completes both Phase I and Phase II of the Prison Sex Offender Program.

On September 25,1992, 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 represented himself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentence which was imposed by Judge John Henson. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. The defendant acknowledged that he understood this and stated that he did not wish to proceed but wanted his case dismissed.

DATED this 25th day of September, 1992.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the petition for Sentence Review shall be dismissed with prejudice.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, and Hon. G. Todd Baugh, Judges.