text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MICHAEL RAY NELSON, Defendant and Appellant.
    No. 95-042.
    Submitted on Briefs August 17, 1995.
    Order Modifying Opinion and Otherwise Denying Rehearing Nov. 16, 1995.
    Decided October 24, 1995.
    52 St.Rep. 1069.
    906 P.2d 663.
    274 Mont. 11.

      For Appellant: William F. Hooks, State Appellate Defender, Helena.

      For Respondent: Hon. Joseph P. Mazurek, Attorney General; Patricia Jordan, Ass’t Attorney General, Helena; George Com, Ravalli County Attorney, Hamilton.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Michael Ray Nelson (Nelson) appeals from the judgment entered by the Twenty-First Judicial District Court, Ravalli County, on his guilty plea to the offenses of felony assault, criminal mischief, and resisting arrest. We affirm.

On September 7, 1994, Nelson was charged by information with three counts of felony assault, one count of misdemeanor assault, one count of misdemeanor resisting arrest and one count of misdemeanor criminal mischief. Two weeks later, Nelson entered pleas of not guilty to all charges. At the arraignment, the county attorney presented a psychological evaluation of Nelson. Defense counsel did not object to the admission of the evaluation.

On October 4, 1994, Nelson entered into a plea agreement in which the State dismissed two counts of felony assault and one count of misdemeanor assault. Nelson then pled guilty to one count of felony assault and the two misdemeanors of resisting arrest and criminal mischief.

On October 4, 1994, Nelson signed a Plea of Guilty and Waiver of Rights. Nelson’s Plea of Guilty and Waiver of Rights stated that Nelson voluntarily plead guilty, explained the rights being waived, outlined the sufficiency of his attorney’s representation, detailed in his own words the factual basis for his guilty plea, and asserted that he was not under the influence of drugs or alcohol.

The next day, during the court’s interrogation at the change of plea hearing, the District Court confirmed Nelson’s understanding of the nature and potential penalties for each of the charges against him. The court confirmed Nelson’s understanding of the rights he waived in entering pleas of guilty and that he had no right to withdraw his guilty pleas. The court determined that Nelson had not been threatened or forced into pleading guilty and that he had not consumed any drugs or alcohol that could affect his judgment or ability to communicate. Nelson admitted that his counsel was competent and had advised him well. Nelson explained, in his own words, the facts upon which the charges and his guilty pleas were based.

At the change of plea hearing, the court inquired whether Nelson understood that the county attorney was not recommending any particular sentence, and that regardless of the actual sentence, Nelson would have no right to withdraw his pleas. Nelson responded that he understood. The court accepted the plea agreement and found Nelson guilty as charged. Defense counsel then moved the court to release Nelson on his own recognizance (hereinafter “OR”) pending sentencing. While this release was not part of the plea agreement, the State had no objection to the motion. After a brief discussion regarding Nelson’s sentencing date and bail, the court declined to release Nelson on OR and the following colloquy occurred:

THE COURT: .... Anything else?
THE DEFENDANT: Yes, Your Honor. I’m not going to do this. This wasn’t my agreement. This understanding — I’m not ready to plead yet. I’d like you to send me over to Warm Springs, sir, because I can’t take any more of it. I honest to God can’t. They told me that they’d do an OR. I thought this was part of the plea agreement. That’s not happening here, sir.
MR. STENERSON: Your Honor, for the record, I did not tell him it was part of the plea agreement. I told him if he took this plea agreement that Mr. Corn would not oppose an OR and that was still up to the Court.
THE DEFENDANT: Your Honor, in regard to the guilty pleas—
THE COURT: Mr. Nelson, that’s already a done deal. You plead guilty.
THE DEFENDANT: Your Honor, I can’t take any more of this. You have to send me to Warm Springs. This isn’t the deal that—
THE COURT: Silence, Mr. Nelson, or I will have you removed. THE DEFENDANT: Your Honor, can you do something or—
THE COURT: I can have you removed. Sheriff?

Nelson raises three issues on appeal. First, did the District Court fail to adequately advise Nelson of the consequences of pleading guilty and, as a result, were his pleas knowingly, intelligently and voluntarily entered. Second, did the District Court err in considering the mental evaluation report, prepared at the direction of the State, without counsel present and without Nelson having been advised of his rights. Finally, did the District Court fail to consider alternatives to imprisonment for a nonviolent felony offense pursuant to §§ 46-18-225, and 46-18-201(10), MCA, before sentencing Nelson to a term of imprisonment.

1. Did the District Court fail to adequately advise Nelson of the consequences of pleading guilty and, as a result, were his pleas knowingly, intelligently and voluntarily entered?

Nelson argues that he should have been allowed to withdraw his guilty pleas because the District Court did not adequately advise him of the consequences of pleading guilty, specifically the possibility that he could be designated a dangerous offender thus restricting his eligibility for parole.

The principles governing the entry and withdrawal of guilty pleas are set forth in both case law and statutes. State v. Enoch (1994), 269 Mont. 8, 11, 887 P.2d 175, 177. District courts must meet the statutory requirements found in §§ 46-12-210 and 46-16-105(1), MCA, before accepting a guilty plea. Section 46-16-105(2), MCA, regarding the withdrawal of a guilty plea, provides:

At any time before or after judgment the court may, for good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.

This Court has consistently stated that no set rule or standard exists under which a district court addresses a request to withdraw a guilty plea, and that each case must be considered in light of its unique record. Enoch, 887 P.2d at 177; State v. Radi (1991), 250 Mont. 155, 158-59, 818 P.2d 1203, 1206. The grant or denial of a motion to withdraw a guilty plea is within the discretion of the district court. Radi, 818 P.2d at 1206. Our standard in reviewing a district court’s denial of a motion to withdraw a guilty plea is whether the district court abused its discretion. Enoch, 887 P.2d at 177; State v. Reynolds (1992), 253 Mont. 386, 390-91, 833 P.2d 153, 155.

When pleading guilty to a criminal charge a defendant waives numerous constitutionally based rights and protections. Radi, 818 P.2d at 1206. In light of the significance of the rights that are waived upon a plea of guilty, it is well-settled that a guilty plea must be a voluntary, knowing, and intelligent choice among the alternative courses of action open to the defendant. North Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162; Radi, 818 P.2d at 1206.

This Court balances three factors when considering a criminal defendant’s attempt to withdraw a guilty plea: (1) the adequacy of the court’s interrogation at the time the plea was entered regarding the defendant’s understanding of the consequences of the plea; (2) the promptness with which the defendant attempts to withdraw the plea; and (3) the fact that the plea was the result of a plea bargain in which the guilty plea was given in exchange for dismissal of another charge. Enoch, 887 P.2d at 177.

In the present case, we need not engage in an analysis of the above three factors because, although Nelson sought to withdraw his pleas due to his misunderstanding as to release on recognizance, Nelson did not attack the voluntary nature of his pleas. See State v. Mason (1992), 253 Mont. 419, 424, 833 P.2d 1058, 1061. The record reveals that Nelson did not move to withdraw his guilty pleas on the grounds that the District Court failed to adequately advise him that he could be designated a dangerous offender for parole purposes. Rather, Nelson objected solely to the District Court’s decision to set bail instead of releasing him on his own recognizance prior to sentencing.

Release on his own recognizance was not included in Nelson’s plea agreement and, in response to Nelson’s objection, his attorney specifically denied that release on OR was part of the plea agreement. Thus, Nelson can not argue that his objection to bail instead of OR was related to the voluntary nature of his guilty pleas because OR was not a condition of his plea agreement. In other words, he did not plead guilty in order to gain release on OR, he pled guilty on the condition that the State drop two of the felony assault charges. In fact, Nelson’s Plea of Guilty and Waiver of Rights states: “I am not entering this plea of guilty in order to get released from jail.” Nor can he relate his objection to being denied OR to the issue he now raises that he was not adequately advised that he could be designated a dangerous offender for parole purposes.

Nelson’s objection and motion to withdraw did not raise any of the grounds on which he now appeals. This Court does not review issues which were not preserved for appeal in the court below. Sections 46-20-104 and 46-20-701, MCA. We have held that failure to raise an issue before the district court bars a defendant from raising the issue on appeal under § 46-20-104, MCA. State v. Arlington (1994), 265 Mont. 127, 151, 875 P.2d 307, 321. We hold that Nelson’s contemporaneous motion to withdraw his pleas did not raise a question as to the adequacy of the court’s interrogation. Further, although § 46-16-105(2), MCA, would have allowed a post-judgment motion attacking the voluntariness of the pleas, no so such motion was made in the District Court. Thus, Nelson is barred from raising the issue of whether he was advised of the possibility and consequences of being designated a dangerous offender on appeal.

We hold that Nelson did not, either before or after judgment, move to withdraw his guilty pleas for lack of voluntariness. The District Court did not abuse its discretion in denying Nelson’s motion to withdraw his guilty pleas based solely upon his misunderstanding as to being released on his own recognizance.

2. Did the District Court err in considering the mental evaluation report, prepared at the direction of the State without counsel present and without Nelson having been first advised of his rights?

Nelson argues that the District Court erred in considering and relying on an emergency mental health evaluation report prepared in violation of Nelson’s Fifth Amendment rights. However, Nelson failed to object to the admission of the report either when the report was incorporated into the Presentence Investigation Report or at the sentencing hearing. This Court does not review issues which were not preserved for appeal in the court below. Sections 46-20-205 and 46-20-701, MCA. We have held that failure to raise an issue before the district court bars a defendant from raising the issue on appeal under § 46-20-104, MCA. Arlington, 875 P.2d at 321. Thus, Nelson is barred from raising the issue of the mental health report on appeal.

3. Did the District Court fail to consider alternatives to imprisonment for a nonviolent felony offense pursuant to §§ 46-18-225, and 46-18-201(11), [formerly (10)] MCA, before sentencing Nelson to a term of imprisonment?

Nelson qualified as a nonviolent felony offender. He argues that Montana law, § 46-18-201(11), MCA, requires the sentencing court to consider alternatives to incarceration when sentencing nonviolent offenders.

In three recent cases in which the district courts failed to consider alternatives to incarceration for nonviolent offenders, we remanded for resentencing. State v. Pence (1995), [273 Mont. 223], 902 P.2d 41; State v. LaMere (1995), [272 Mont. 355], 900 P.2d 926; State v. Stevens (1993), 259 Mont. 114, 854 P.2d 336. However, in each of these cases the defendants raised the issue of consideration of alternatives to incarceration before the district court, or as in Stevens, the State conceded that the statute had not been followed. Stevens, 854 P.2d at 337. In Pence, “[i]mmediately following the District Court’s oral ruling, Pence’s counsel asked the judge to reconsider his sentence, pointing out that the court was required to consider alternatives to incarceration.” Pence, [273 Mont. 223], 902 P.2d at 44. In LaMere, we held that the defendant’s objections to the sentence and request for reconsideration were sufficient to preserve the issue for appeal. LaMere, 900 P.2d at 928.

However, in the instant case, the issue of consideration of alternatives to imprisonment was not raised before the District Court and the State did not concede that the statute had not been followed. The transcript of the sentencing hearing reveals that N elson did not obj ect to the court’s failure to consider sentencing alternatives nor did he request reconsideration.

Nelson did request a deferred sentence at the sentencing hearing and he argues that this request is sufficient to preserve the issue for appeal. However, a request for a deferred sentence does not serve the same role as an objection to the sentence actually imposed. Nelson did not alert the District Court to the alleged failure to consider alternatives to imprisonment. Thus, the court was not able to correct any deficiency in the sentencing process.

As we stated earlier, this Court does not review issues which were not preserved for appeal in the court below. Sections 46-20-205 and 46-20-701, MCA. We have held that failure to raise an issue before the district court bars a defendant from raising the issue on appeal under § 46-20-104, MCA. Arlington, 875 P.2d at 321.

An exception to this general rule is found in the holdings of State v. Lenihan (1979), 184 Mont. 338, 602 P.2d 997 and State v. Hatfield (1993), 256 Mont. 340, 846 P.2d 1025. In those cases we held that an appellate court may review any sentence imposed in a criminal case, if it is alleged that such sentence is illegal or exceeds statutory mandates, even if no objection is made at the time of sentencing. Lenihan, 602 P.2d at 1000; Hatfield, 846 P.2d at 1029 (emphasis added). While not disturbing the holdings of these cases, we find the instant case distinguishable.

In Lenihan, the defendant pled guilty to burglary and his three-year sentence was deferred. He appealed from the sentencing condition requiring him to pay $250 as reimbursement for his public defender’s attorney’s fees. Lenihan argued that because Montana does not have a recoupment statute, the district court’s order to reimburse the county for attorney’s fees was invalid. The State countered, inter alia, that Lenihan did not object to reimbursement in the district court. This Court held:

Traditionally, in both civil and criminal matters, this Court has not accepted for review issues which were not objected to at the trial level. ...

This Court, however, has never specifically ruled on the question presented here. That is, whether an objection at the trial level is a prerequisite to the challenging of a sentencing order on appeal. This issue has been ruled on in other jurisdictions with varying results....

It appears to be the better rule to allow an appellate court to review any sentence imposed in a criminal case, if it is alleged that such sentence is illegal or exceeds statutory mandates, even if no objection is made at the time of sentencing.

Lenihan, 602 P.2d at 1000 (emphasis added; citations omitted). Because the district court exceeded its statutory authority by requiring Lenihan to reimburse the county for attorney’s fees, this Court remanded Lenihan’s sentence with instructions to vacate the condition of repayment of attorney’s fees. Lenihan, 602 P.2d at 1001.

In State v. Hatfield, Hatfield appealed his convictions of sale of dangerous drugs and conspiracy to sell drugs. Hatfield argued that the court erred in imposing the following sentencing condition:

Defendant may be required to serve up to an additional one hundred-eighty days ... at the discretion of the supervising Probation Officer .... The Probation Officer has the right to decide the amount of time to be served for any infraction, up to the entire one hundred eighty days. ...

Hatfield, 846 P.2d at 1029. This Court noted that Hatfield did not object to the sentence at the time it was entered. However, relying on the Lenihan holding that a criminal sentence may be reviewed on appeal if it is alleged to be illegal or in excess of statutory mandates, the Court addressed the sentencing issue. The Court stated: “We have long held that a district court has no power to impose a sentence in the absence of specific statutory authority.” Hatfield, 846 P.2d at 1029. Holding that the district court had exceeded its statutory authority by delegating sentencing discretion to a probation officer and by imposing a condition that could have resulted in Hatfield spending more time in jail than the maximum sentence allowed, the Court remanded the case for resentencing.

Both Lenihan and Hatfield involved situations where the judgment was void due to lack of statutory authority. In Lenihan and Hatfield, the district court’s sentences were illegal or in excess of statutory authority because the courts lacked the specific statutory authority to impose the sentence.

Unlike Lenihan and Hatfield, Nelson’s sentence is neither illegal nor does it exceed statutory authority. Sections 46-18-201(11) and 46-18-225, MCA, do not preclude a court from sentencing a nonviolent felony offender to prison. Section 46-18-225, MCA, states: “Prior to sentencing a nonviolent felony offender to a term of imprisonment ...” the court shall take into account certain criteria. Section 46-18-201(11) states: “ If the offender is subsequently sentenced to the state prison ...” the court shall state why alternatives to imprisonment were not selected. Although these statutes require consideration of alternatives to imprisonment, such consideration would not have necessarily changed the court’s final sentence for Nelson. Nelson’s sentence of ten years is not in excess of the maximum statutorily authorized by § 45-5-202(3), MCA.

Sections 46-18-201(11) and 46-18-225, MCA, impose an affirmative duty upon the court to take certain matters into consideration in sentencing. If the court fails to abide by this requirement, the sentence is subject to challenge or objection. That does not mean, however, that in the absence of an objection, the sentence is thereby illegal. The District Court, after considering the criteria in § 46-18-225, MCA, and stating its reasons why alternatives to imprisonment were not selected as required by § 46-18-201(11), MCA, could still have legally sentenced Nelson to ten years in prison. Thus, Nelson’s sentence does not come within the exception found in Lenihan and Hatfield. Having failed to object to the sentence or to move for reconsideration, Nelson is barred from raising the issue of consideration of alternatives on appeal.

We note that although the District Court enunciated reasons for its sentence, it did not specifically reference the statutory requirement that it consider alternatives to incarcerating a nonviolent offender or the criteria set forth in § 46-18-225, MCA. Prior to sentencing a nonviolent felony offender to imprisonment, the court must examine and take into account the ten specific criteria set forth in § 46-18-225, MCA.

Section 225 requires consideration of such things as where the needs of the offender would be best served. These statutes do not provide the court with any discretion. The legislature has directed trial courts to make these considerations before any nonviolent offender is incarcerated.

LaMere, 900 P.2d at 928 (emphasis added). Explicit, rather than implicit consideration of the criteria makes for a much more meaningful appellate review. In future cases, we strongly encourage district courts, in imposing sentence upon nonviolent offenders, to specifically recognize and address the criteria set forth in § 46-18-225, MCA.

Affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    FROM: The District Court of the 6th Judicial District. County of Park.
    STATE OF MONTANA, Plaintiff, vs. Bruce Anthony Flack, Defendant.
    NO. 92-6 DECISION
    DATED this 19th day of April, 1995.
   On December 5, 1994, the suspended sentence of five (5) years heretofore entered by this court on April 23, 1992 was revoked, and defendant was ordered to serve five (5) years of said sentence at Montana State Prison, save and except for 34 days heretofore served in this case upon his conviction for robbery, a felony. Defendant is not given credit for any street time since the sentence was imposed for reasons stated in said findings, and the five years revoked is separate from the three years not originally suspended. That defendant is designated as a non-dangerous offender, and his parole eligibility shall be determined accordingly. The court further directs that as a condition of parole, defendant be required to pay at least $100.00 a month on the restitution of $1,000.00 and the fine of $1,000.00 he owes herein, beginning within 30 days after his parole. That the court directs defendant be permitted to participate in any chemical dependency or alcohol education and counseling program at said prison, however, provided he complies with all the lawful rules and regulations therefor.

On March 17, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

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

It is hereby ordered that the petition is dismissed.

Done in open Court this 17th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.


text:
    FROM: The District Court of the 13th Judicial District. County of Yellowstone.
    STATE OF MONTANA, Plaintiff, vs. Frank Fuhrman, Defendant.
    NO. DC 93-218 DECISION
    DATED this 19th day of April, 1995.
   On December 15, 1994, the defendant was sentenced to the Montana State Prison for the offense of Sexual Assault, a Felony for the term of ten (10) years to run consecutively with the sentence received in criminal cause number DC 93-322. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility for 1 day. It is further ordered that the said defendant shall register as a sex offender. The defendant is further notified that the law imposes upon him the duty to pay a supervisory fee of one hundred twenty dollars ($120.00) a year prorated at ten dollars ($10.00) a month for the number of months that he is hereunder supervision. This fee is payable to the Clerk of Court. It is further ordered that the defendant shall pay to the Clerk of District Court the sum of twenty dollars ($20.00) for this conviction. The Clerk of District Court is hereby ordered to deliver the said sum of twenty dollars ($20.00) to the Treasurer of this county.

On March 17, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was represented by John Kennedy, County Attorney from Billings.

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. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall remain the same as originally imposed.

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 find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

Done in open Court this 17th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.

The Sentence Review Board wishes to thank Frank Fuhrman for representing himself in this matter and also John Kennedy, County Attorney from Billings for representing the State.


text:
    FROM: The District Court of the 8th Judicial District. County of Cascade.

      STATE OF MONTANA, Plaintiff, vs. Jay Brian Johnson, Defendant.
    NO. CDC 92-175a DECISION
    DATED this 19th day of April, 1995
   On June 21,1993, the defendant was sentenced to Montana State Prison for a period of twenty (20) years for the crime of Count I: Aggravated Kidnapping, a Felony. It is further ordered that the defendant be sentenced to Montana State Prison for a period of twenty (20) years for the crime of Count II: Sexual Intercourse Without Consent, a Felony. Said sentences are to be served consecutively. The defendant is given credit for time already served in the Cascade County Detention Center, a total of 352 days. For the purposes of parole eligibility the defendant is hereby declared a dangerous offender.

On March 17, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence will 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 find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

Done in open Court this 17th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.

The Sentence Review Board wishes to thank Jay Johnson for representing himself in this matter.


text:
    FROM: The District Court of the 13th Judicial District. County of Yellowstone.
    STATE OF MONTANA, Plaintiff, vs. Danny Ray Kelly, Defendant.
    NO. DC 92-326 DECISION
   On August 17, 1994, the defendant was sentenced to Montana State Prison for one hundred (100) years on Count I: Aggravated Kidnapping, a Felony; Forty (40) years on Count II: Sexual Intercourse Without Consent, a Felony, to run concurrently with the sentence received in Count I. On Count V: Sexual Intercourse Without Consent, a Felony, the defendant is sentenced to the term of forty (40) years to run consecutively with the sentence received in Count II and to run concurrently with the sentence received in Count I. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility at Billings, Montana, from July 29,1992 through March 17, 1993; and for time served in the Montana State Prison from March 18, 1993 through August 17, 1994, for a total of 749 days. It is further ordered that the defendant will be designated as a persistent felony offender for sentencing. It is further ordered that the defendant will be designated as a dangerous felony offender for sentencing. It is the recommendation of this court that the defendant not be eligible for parole until said defendant has completed Phase II of the Sex Offender Treatment Program. It is further ordered that the defendant shall pay to the Clerk of District Court the sum of Twenty Dollars ($20.00) for this conviction pursuant to statute 46-18-236, M.C.A. The Clerk of District Court is hereby ordered to deliver the said sum of Twenty Dollars ($20.00) to the Treasurer of this County.

DATED this 19th day of April, 1995.

On March 17, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was represented by John Kennedy, County Attorney from Billings.

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. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence 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 find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

Done in open Court this 17th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.

The Sentence Review Board wishes to thank Danny Kelly for representing himself in this matter and also John Kennedy, County Attorney from Billings for representing the State.


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. Patrick Lewis Kelly, Defendant.
    NO. 10737 DECISION
   On September 26,1994, the defendant was sentenced to a term of ten (10) years on Count I: Theft, a Felony, in the Montana State Prison and to a term of six (6) months on Count II: Assault, a Misdemeanor, in the Missoula County Jail in Missoula, Montana. Said sentences shall run concurrently with each other. Defendant shall be designated a dangerous offender for the purposes of parole. Defendant shall receive credit for time served at Missoula County Jail from June 28, 1993, through June 29, 1993, in the amount of two (2) days.

On March 17, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

DATED this 19th day of April, 1995.

The Defendant was present and was represented by Bill D’Alton, legal intern of 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. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence 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 find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

Done in open Court this 17th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.

The Sentence Review Board wishes to thank Bill D’Alton, legal intern from the Montana Defender Project for representing Patrick Kelly in this matter.


text:
    FROM: The District Court of the 20th Judicial District. County of Lake.
    STATE OF MONTANA, Plaintiff, vs. Daniel James Kenmille, Defendant.
    NO. DC 91-39 DECISION
   On November 20, 1991, in regards to Cause # DC 91-39, the Court ordered that the defendant be punished by confinement in the Montana State Prison, for a term of ten (10) years with none suspended, with a consecutive term of seven (7) years in the Montana State Prison as a persistent felony offender, with none suspended for a total of seventeen (17) years in the Montana State Prison, with none suspended. The Court finds the defendant a non-dangerous offender for purposes of parole. The Court further orders that the defendant shall receive credit for time served in the Lake County Jail from March 26, 1991 to October 23, 1991, of 211 days. The Court further orders that Count II, Criminal Possession of Drug Paraphernalia, a Misdemeanor, as specified in MCA 45-10-103 in DC 91-39 is hereby dismissed and that in DC 91-61 all counts: Criminal Sale of Dangerous Drugs, a Felony, Count I, as specified in MCA 45-9-101(1) and Criminal Possession With Intent to Sell, a Felony, Count II, as specified in MCA 45-9-103(1) are hereby dismissed. The Court further orders that the defendant shall pay the Twenty Dollars ($20.00) surcharge, as required by law, which shall be paid to the Clerk ofthe District Court. On December 18, 1991, in regards to Cause # DC 91-107, the Court ordered that the defendant be punished by confinement in the Montana State Prison for a term of ten (10) years on Count I, Felony Assault, a Felony with none suspended, and for a term of ten (10) years in the Montana State Prison on Count II, Escape, a Felony, with none suspended. The sentence imposed on Count II shall run consecutively to the sentence imposed on Count I. The defendant shall receive credit for time served in the Lake County Jail, since his arrest on October 26, 1991, which as of the date of this Judgment totals fifty-three (53) days. The sentences imposed above shall run consecutively to the sentence imposed on Lake County Cause DC 91-39. The Court further orders that the defendant shall be designated a dangerous offender for purposes of his parole under MCA 46-18-404.

DATED this 19th day of April, 1995.

On March 17, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence will 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 find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

The Sentence Review Board presumes Judge Harkin’s judgment is correct and that the assault charges should run consecutive with the escape charges. The panel disagrees with the defendant’s contention that there was no violence involved or that it was not a dangerous situation.

Done in open Court this 17th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.

The Sentence Review Board wishes to thank Daniel Kenmille for representing himself in this matter.


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. John Edwin Lee, Jr., Defendant.
    NO. 9821 DECISION
   On December 16, 1994, the Court found the defendant in violation of the conditions of his suspended sentence for the offense of Sexual Assault, a Felony and it is the judgment of the Court that defendant’s prior suspended sentence is hereby revoked and the defendant be and he is hereby sentenced to a term of ten (10) years in the Montana State Prison. It is the recommendation of the Court that prior to becoming eligible for parole that the defendant shall successfully complete all phases of the sex offender treatment program at the Montana State Prison. Due to defendant’s failure to comply with the terms and conditions of his suspended sentence while under the supervision of the Department of Probation and Parole, the Court finds that he is not entitled to receive, and shall not receive, credit for any elapsed time between the date of his conviction and the date of this order, except that he shall receive credit from July 20, 1991, through July 22, 1991; and from April 15, 1992, through May 21, 1992; from April 17, 1994, through April 19, 1994; and from June 2, 1994, through date of sentencing, December 16, 1994; for two hundred forty-one (241) days jail time which he has previously served.

DATED this 19th day of April, 1995.

On March 16, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence 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 find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

Done in open Court this 16th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.

The Sentence Review Board wishes to thank John Edwin Lee for representing himself in this matter.


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. Cary T. Leugers, Defendant.
    NO. 11324 DECISION
   On November 18, 1994, the defendant was committed to the Department of Corrections for the offense of Forgery, a Felony for a term often (10) years for suitable placement, which may include an appropriate community based program, facility, or a State correctional institution. Defendant shall receive credit for time served at Missoula County Jail from September 2, 1994, through date of sentencing, November 21, 1994, in the amount of eighty-one (81) days. It is the recommendation of the Court that as a condition of any parole or early release the defendant shall pay restitution in the amount of One Thousand Eighty-Four and 22/100 Dollars ($1,084.22); cost of Court appointed attorney in the amount of Thirty-Five Dollars ($35.00); a fine to go to the community service program in the amount of Eighty-Five Dollars ($85.00); a fee in the amount of Twenty Dollars ($20.00) to go to the County Attorney Surcharge Fund as provided in Section 46-18-236, M.C.A.; and the cost of prosecution in the amount of One Hundred Dollars ($100.00); and the probationary supervision fee in the amount of Ten Dollars ($10.00) per month or one Hundred Twenty Dollars ($120.00) per year, pursuant to Section 46-23-1011, M.C.A. Said costs shall be paid through the Clerk of the District Court. As the restitution is paid, it shall be disbursed as follows: Missoula Federal Credit Union, 2001 Brooks, Missoula, MT 59801 (Forgeries on Reichert and Goesselin account) $650.00. (Forgeries on Bolka account) Bob Wards, 2300 Brooks, Missoula, MT 59801 - $92.99; Albertsons, Holiday Village, Missoula, MT 59801 - $17.27; High Country, Southgate Mall, Missoula, MT 59801 - $ 101.99; Universal Athletics, Southgate Mall, Missoula, MT 59801 - $ 99,99; KG Men’s Store, Southgate Mall, Missoula, MT 59801 - $ 121.98.

DATED this 19th day of April, 1995.

On March 16, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence will 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 find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

Done in open Court this 16th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.

The Sentence Review Board wishes to thank Cary Leugers for representing himself in this matter.


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. Patrick Lewis Lozeau, Defendant.
    NO. 8357 DECISION
   On June 27, 1994, the court found the defendant in violation of the conditions of his suspended sentence and it is the judgment of the court that defendant’s prior suspended sentence is hereby revoked and that the defendant be and he is hereby committed to the Department of Corrections for a term of ten (10) years for the offense of Theft, a Felony, for suitable placement, which may include an appropriate community based program, facility, or a state correctional institution. Due to the defendant’s failure to comply with the terms and conditions of his suspended sentence while under the supervision of the Department of Probation and Parole, the Court finds that he is not entitled to receive, and shall not receive, credit for any elapsed time between the date of his conviction and the date of this Order, except that he shall receive credit from May 7, 1988, through May 9, 1988; from January 6, 1989, through February 17, 1989; from November 21, 1990, through November 26, 1990; from August 2, 1991, through August 21, 1991; from May 27, 1994, through June 8, 1994; for eighty-five (85) days jail time which he has previously served.

On March 16, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

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

DATED this 19th day of April, 1995.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence 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 find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

Done in open Court this 16th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.

The Sentence Review Board wishes to thank Patrick Lozeau for representing himself in this matter.


author: THE HONORABLE JOHN WARNER

text:
    FROM: The District Court of the 19th Judicial District. County of Lincoln.
    STATE OF MONTANA, Plaintiff, vs. Wesley Ray Mack, Defendant.
    NO. DC 93-22N DECISION
   On September 13, 1994, the court found that the defendant had violated the terms of his deferred sentence and so the court ordered, adjudged and decreed as to the offense of Sexual Assault, a felony, the defendant shall be imprisoned in the Montana State Prison for a period of fifteen (15) years, but suspends five (5) years of such sentence. The defendant shall not be eligible for consideration for parole until he successfully completes all phases of the sex offender treatment program. Terms and conditions for parole shall remain the same as listed in the September 13, 1994 Judgment and Sentence. The defendant shall receive credit for fifty-one (51) days time served by reason of prior incarceration.

On March 16, 1995, 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 Jeffrey Murray, attorney from Kalispell. 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. 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 is a split decision of the Sentence Review Division. Judge Ted O. Lympus and Judge Frank Davis vote to affirm the decision 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 find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

DATED this 19th day of April, 1995.

Done in open court this 16th day of March, 1995.

Hon. Ted Lympus, Member, Hon. Frank Davis, Member.

DISSENT;

THE HONORABLE JOHN WARNER

dissents, and would amend the sentence to require that before release the defendant shall complete Phase I of the Sexual Offender Treatment Program.

The Sentence Review Board wishes to thank Jeffrey Murray, attorney from Kalispell for representing Wesley Mack in this matter.


text:
    FROM: The District Court of the 13th Judicial District. County of Yellowstone.
    STATE OF MONTANA Plaintiff, vs. Clayton James Mascarena, Defendant.
    NO. DC 93-325 DECISION
   On June 23, 1994, the previous judgment dated the 30th day of September, 1993, was duly revoked and the defendant was sentenced for the crime of Criminal Mischief, a Felony. Wherefore, it is ordered that the said defendant be committed to the Director of the Department of Corrections and Human Services to be placed in an appropriate community based program, facility or a State Correctional Institution, for custody, care and treatment for the term of four (4) years. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility at Billings, MT. for a total of 121 days. It is recommended that defendant be considered for acceptance into the Swan River Correctional Training Center (boot camp). It is further ordered that the defendant shall not be eligible for pre-release/parole until defendant successfully completes a chemical dependency treatment program as recommended by the Montana State Prison treatment staff prior to being considered for pre-release/parole. It is further ordered in all other respects, the previous orders, conditions and reasons of this court stated on the 30th day of September, 1993, shall remain unchanged and are reimposed and shall continue as if set forth herein, all under the authority of this Court and defendant’s Supervising Officer. The defendant is further notified that the law imposes upon him the duty to pay a supervisory fee of One Hundred Twenty Dollars ($120.00) a year prorated at Ten Dollars ($10.00) a month for the number of months that he is hereunder Supervision. This fee is payable to the Clerk of Court.

On March 17, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence will 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 find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

DATED this 19th day of April, 1995.

Done in open Court this 17th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.

The Sentence Review Board wishes to thank Clayton Mascarena for representing himself in this matter.


author: JUSTICE GRAY JUSTICE TRIEWEILER

text:
    GAYLEN MARSH, Petitioner and Appellant, v. MIKE OVERLAND, Respondent and Respondent.
    No. 95-117.
    Submitted on Briefs June 1, 1995.
    Decided November 2, 1995.
    52 St.Rep. 1099.
    905 P.2d 1088.
    274 Mont. 21.

      For Appellant: Matthew W. Knierim, Laura Christoffersen; Christoffersen & Knierim, Glasgow.
    For Respondent: Jefifrey M. Hindoien; Swift & Hindoien, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

Gaylen Marsh (Marsh) appeals the decision of the Fifteenth Judicial District Court, Sheridan County, affirming the Sheridan County Recount Board’s (Recount Board) Certificate of Recount which declared Mike Overland the winner of the 1994 Sheridan County Sheriff’s election. We affirm.

Marsh raises the following issues on appeal:

1. Did the District Court err in concluding that the surname “Marsh” alone on a write-in ballot was insufficient to determine the intent of the voter as required by § 13-15-202(3), MCA?

2. Did the District Court err in concluding that the Recount Board had jurisdiction to disallow votes cast with only the surname “Marsh”?

3. Did the election judges’ failure to properly identify rejected ballots compromise the validity of the entire election?

4. Did the District Court abuse its discretion in awarding attorney’s fees to Mike Overland?

Three candidates sought the office of Sheridan County Sheriff in the election held on November 8, 1994. Mike Overland (Overland) and Paul George (George) ran as the Republican and Democrat candidates, respectively. Marsh, who had lost to George in the Democrat primary, initiated a vigorous write-in campaign. He filed a timely declaration of intent to rim as a write-in candidate and publicized his candidacy through the local media, as well as with private posters and mailings. The majority of Marsh’s advertising used his full name, “Gaylen Marsh.” He also sent potential voters “Gaylen Marsh” stickers which could be placed in the write-in portion of Sheridan County’s paper ballots.

Following the election, Sheridan County election officials announced that Marsh had won the election. The initial election results indicated that Marsh received 909 votes, Overland received 902 votes and George received 664 votes. Overland petitioned for a recount pursuant to § 13-16-201(1), MCA.

The Sheridan County Recount Board recounted the votes in the sheriff’s election under instruction from the Sheridan County Election Administrator to disallow any ballots which did not specify “Gaylen” or “G.” Marsh. Pursuant to this instruction, the Recount Board did not count the following votes:

12 ballots “Marsh”
1 ballot “Mr. Marsh”
1 ballot “David Marsh”
1 ballot “Dave Marsh”
1 ballot “Gilbert Marsh”
1 ballot “Lloyd Marsh”
1 ballot Misspelled or illegible
22 ballots No “X” marked in the box preceding the name “Gaylen Marsh”

With the above-listed votes disallowed, the recount showed 903 votes for Overland, 897 votes for Marsh and 664 votes for George. As a result, election officials declared Overland the winner of the election for Sheridan County Sheriff.

Marsh filed this four-count action against Overland and the Recount Board captioned “PETITION for WRIT of PROHIBITION, WRIT of MANDAMUS, for JUDICIAL REVIEW and CONTESTING ELECTION.” District Court Judge M. James Sorte issued alternative writs of prohibition and mandamus, but later quashed the alternative writs and dismissed the Recount Board as a party. Marsh subsequently moved to substitute Judge Sorte and District Court Judge John C. McKeon assumed jurisdiction.

Following dismissal of an additional count of Marsh’s complaint on motion of both parties, the only claim before the court was a § 13-36-101, MCA, election contest. Marsh petitioned the court to set aside Overland’s election pursuant to § 13-36-102(2), MCA, and to issue a certificate of election in his favor pursuant to § 13-16-418, MCA. He argued that the votes for “Marsh” sufficiently demonstrated the voters’ intent to vote for him and, therefore, that the twelve “Marsh” votes must be added to his total.

After a hearing held pursuant to §§ 13-36-206 and 13-36-207, MCA, the District Court issued its findings of fact, conclusions of law, and order affirming the Recount Board’s decision. The court concluded that the Recount Board properly excluded the “Marsh” votes from Marsh’s total and directed that a certificate of election be issued declaring Overland elected as Sheridan County Sheriff. The court also determined that Overland was entitled to costs and attorney’s fees under § 13-36-205, MCA. Marsh appeals.

Issue 1

Did the District Court err in concluding that the surname “Marsh” alone on a write-in ballot was insufficient to determine the intent of the voter as required by § 13-15-202, MCA?

We review a district court’s conclusions of law to determine if they are correct. Boreen v. Christensen (1994), 267 Mont. 405, 408, 884 P.2d 761, 762.

While the specific issue now before us regarding voters’ intent in marking write-in ballots is one of first impression in Montana, both statute and case law on the subject of determining voters’ intent require that ballots be disallowed unless the electors’ intent can be established with reasonable certainty. Section 13-15-202(3), MCA, states:

A ballot or part of a ballot is void and shall not be counted if the elector’s choice cannot be determined. If part of a ballot is sufficiently plain to determine the elector’s intention, the election judges shall count that part.

This Court has consistently disallowed ballots when the voters’ intent does not plainly appear. See Rennie v. Nistler (1987), 226 Mont. 412, 735 P.2d 1124; Peterson v. Billings (1939), 109 Mont. 390, 96 P.2d 922. We recently summarized the rationale underlying our consistent rejection of ballots where the voters’intent is not clear:

“[T]he paramount and ultimate object of all election laws under our system of government is to obtain an honest and fair expression from the voters upon all questions submitted to them.” When such expression cannot be gleaned without speculation, however, the vote is to be voided, to insure a standard of objectivity in our election process. [Citation omitted.]

Spaeth v. Kendall (1990), 245 Mont. 352, 354-55, 801 P.2d 591, 593.

On the facts presently before us, the “Marsh” votes cannot be credited to Marsh without speculating about the voters’ intent. There are twenty-eight registered voters in Sheridan County with the surname “Marsh.” Four of these individuals — David, Gilbert, Lloyd and appellant Gaylen Marsh — each received at least one write-in vote in the sheriff’s election. Moreover, at least four voters clearly cast ballots for a Marsh other than Gaylen: Gilbert and Lloyd Marsh each received one vote and David Marsh received two. While Gaylen Marsh received almost 900 votes, it cannot be determined without speculation that the “Marsh” votes were intended for Gaylen and not for Gilbert, Lloyd or David or, indeed, for one of the approximately two dozen other registered voters in Sheridan County surnamed Marsh.

Marsh argues that, because he was the only write-in candidate who filed a declaration of intent as required by § 13-10-211, MCA, and campaigned for the office, he was the only eligible write-in candidate; thus, he contends that the “Marsh” votes must have been intended for him. While it is true that Marsh was the only official write-in candidate for sheriff under § 13-10-211, MCA, nothing in that statute mandates that “Marsh” votes be counted for him. The effect of write-in votes for persons who have not filed a declaration of intent is controlled by § 13-15-202(l)(b), MCA, which provides that “judges may not count or record write-in votes for candidates who have not filed a declaration of intent as provided in 13-10-211....”

In addition, Marsh’s argument ignores the undisputed fact that voters wrote in the names of Marshes other than Gaylen. Under the facts before us, it is entirely conceivable that some of the “Marsh” ballots were intended for Gilbert, Lloyd or David Marsh.

Moreover, the fact that Marsh was the only write-in candidate eligible to be elected does not defeat the voting public’s right to vote for whomever they wish. U.S. Const. amend. XV, § 1; Awareness Group v. School District No. 4 (1990), 243 Mont. 469, 474, 795 P.2d 447, 450 (citing Wesberry v. Sanders (1964), 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481). Gilbert, Lloyd and David Marsh were not eligible to be elected sheriff because they failed to file a declaration of intent with election officials. However, their ineligibility for office does not restrict the voting public’s right to vote for the person of their choice.

Marsh urges this Court to adopt the so-called “substantial compliance” test utilized by several jurisdictions in interpreting a voter’s intent. In Meyer v. Lamm (Colo. 1993), 846 P.2d 862, for example, the Colorado Supreme Court allowed votes for “Lamm,” “Miss Lamm,” “Ms. Lamm” and “Mrs. Lamm” to be counted in favor of write-in candidate Peggy Lamm, while rejecting ballots containing an incorrect first name or initial. Lamm, 846 P.2d at 877-78. The Colorado court reasoned:

The evidence adduced at the hearing indicated that Peggy Lamm was the only person in District 13 that had campaigned as a write-in candidate for representative. She was the only person who had filed the requisite affidavit of intent to run and was thus the only person other than Drew Clark eligible to be elected to the office. There was evidence that Lamm’s campaign was extensive and vigorous and that she had obtained the editorial endorsement of a number of newspapers in the metropolitan area. Given these facts, as well as the absence of any official instructions to voters that a valid write-in vote must contain more than a last name, we find that the intention of these voters to vote for Peggy Lamm can be ascertained with the requisite certainty.

Lamm, 846 P.2d at 877.

While Lamm is factually similar to the present case, we disagree with the result reached by the Colorado court. We fail to see how votes for “Lamm” can reflect the “requisite certainty” of intent in light of votes cast in the same election for “Nancy Lamm,” as an example, which the court correctly rejected as insufficiently demonstrating the voters’ intent to vote for Peggy Lamm. In our view, the voters’ intent under such a factual scenario cannot be determined without the speculation prohibited by Spaeth. See Spaeth, 801 P.2d at 593.

Marsh also relies on Devine v. Wonderlich (Iowa 1978), 268 N.W.2d 620, in which the Iowa Supreme Court concluded that ballots containing only the candidate’s surname sufficiently conveyed the voters’ intent. The court stated:

In view of Devine’s active candidacy, the publicity and advertising which accompanied it, and the unlikelihood of his being confused with the few other persons having the same surname, none of whom were shown to be politically active, the use of his surname alone was sufficient to indicate a vote for him.

Devine, 268 N.W.2d at 627 (emphasis added). While the Devine court found it unlikely that votes cast for “Devine” were intended for any of the other ten Devines residing in the county, we cannot properly make such an assumption under the facts of this case. Here, while the record does not reflect that Gilbert, David and Lloyd Marsh were politically active and it is clear that none of them filed a declaration of intent, they each received write-in votes. Under such circumstances, we cannot state without speculation or conjecture that the “Marsh” ballots were intended for Gaylen Marsh and not Gilbert, David or Lloyd.

We hold that the District Court did not err in concluding that the surname “Marsh” alone on a write-in ballot was insufficient to determine the intent of the voters under § 13-15-202, MCA.

Issue 2

Did the District Court err in concluding that the Recount Board had jurisdiction to disallow votes cast with only the surname “Marsh”?

Marsh argues that election judges are vested with sole responsibility for rejecting invalid or irregular ballots and that a recount board is limited to simply “recounting” those ballots that the election judges have determined to be valid. On this basis, Marsh insists that the Recount Board exceeded its jurisdiction by redetermining which ballots to count and which ballots to void and that the District Court erred in concluding otherwise. Overland contends that Marsh’s approach fails to consider other relevant statutes and fails to look at the statutes as a whole.

Statutes do not exist in a vacuum. They must be read in relationship to one another to effectuate the intent of the statutes as a whole. See Swan Corp. v. Mont. Dep’t of Revenue (1988), 232 Mont. 210, 214, 755 P.2d 1388, 1390; (citing State v. Meader (1979), 184 Mont. 32, 36-37, 601 P.2d 386, 388-89). In Howell v. State (1994), 263 Mont. 275, 868 P.2d 568, we stated that “it is our duty to interpret individual sections of an act in such a manner as to ensure coordination with the other sections of the act.” Howell, 868 P.2d at 574 (citation omitted).

Section 13-15-202, MCA, generally provides that the election judges shall count the votes cast for each candidate. As discussed above, § 13-15-202(3), MCA, allows the election judges to count only those ballots which clearly convey the voters’ intent. Implicit in the term “count” is that only those ballots which satisfy the statutory intent requirement may be counted.

Sections 13-16-101 through 13-16-507, MCA, set forth the procedures for the appointment of a recount board and for recounts of various types. Section 13-16-412, MCA, authorizes a recount board to count votes cast for the candidates involved in the recount, while § 13-16-415, MCA, requires a recount board to verify the results:

After a recount is completed, tally sheets shall be compared and the correctness of all reports of votes cast ascertained. The totals for each candidate or on each issue shall be compiled and checked for accuracy. [Emphasis added.]

When Overland petitioned for a recount, the Recount Board was required by § 13-16-412, MCA, to count the votes cast for the candidates for sheriff. It was further required, under § 13-16-415, MCA, to ascertain the correctness of all reports of votes cast. Reading these statutes together, we conclude that the Recount Board could fulfill its statutory duties only by determining whether or not certain votes could be counted pursuant to the strictures contained in § 13-15-202, MCA.

We hold that the District Court did not err in concluding that the Recount Board had jurisdiction to disallow votes cast with only the surname “Marsh.”

Issue 3

Did the election judges’ failure to properly identify rejected ballots compromise the validity of the entire election?

Marsh argues that the election judges failed to mark the ballots they rejected as required by § 13-15-203, MCA. He claims that this failure to properly mark the rejected ballots compromised the validity of the entire election process.

Marsh did not name the election judges as party defendants in this action; nor did he raise this issue in bis complaint. He also did not present this argument during the hearing and did not move to amend his pleadings to conform to any evidence presented, as authorized by Rule 15(b), M.R.Civ.P. Marsh raised this issue for the first time in his post-hearing memorandum, and the District Court did not address the issue in its findings and conclusions.

We will not address issues which were not properly raised before the district court. Lane v. Smith (1992), 255 Mont. 218, 221, 841 P.2d 1143, 1145. We conclude that Marsh failed to timely raise the issue of the election judges’ failure to mark rejected ballots as required by § 13-15-203, MCA, before the District Court and, therefore, we decline to address it.

Issue 4

Did the District Court abuse its discretion in awarding attorney’s fees to Overland?

In Montana, litigants generally are not entitled to an award of attorney’s fees absent a specific contractual or statutory provision. Howell, 868 P.2d at 574. Section 13-36-205, MCA, authorizes an award of attorney’s fees to the prevailing party in a contested election proceeding:

In any contest, the prevailing party may recover his costs, disbursements, and reasonable attorney’s fees. Costs, disbursements, and attorney’s fees in all such cases shall be in the discretion of the court.

Because a fee award under § 13-36-205, MCA, is discretionary, we review the District Court’s award of attorney’s fees to Overland for abuse of discretion. Gandy v. Eschler (1993), 261 Mont. 355, 361, 862 P.2d 1116, 1120.

Marsh asserts that either he or Overland probably would have initiated the election contest proceeding after the recount, regardless of the results of the recount. He further contends that the inevitable legal action would have resulted from the acts of the election judges or Recount Board rather than from any fault of either himself or Overland. Under these circumstances, he argues that the District Court abused its discretion in awarding attorney’s fees to Overland rather than leaving each party responsible for the attorney’s fees he incurred.

Overland is the prevailing party in an election contest proceeding. Section 13-36-205, MCA, authorizes an award of attorney’s fees in such a situation and the District Court acted pursuant to the statute in making the award. The court, in its discretion, could have accepted Marsh’s arguments; it did not choose to do so. We conclude that the District Court did not abuse its discretion in awarding attorney’s fees to Overland.

Overland points out that he has incurred additional costs and attorney’s fees in defending against Marsh’s appeal and requests that we award him fees and costs on appeal. Overland’s attorney’s fees on appeal were incurred during his ongoing defense against Marsh’s election contest. Under the facts and circumstances of this case, awarding attorney’s fees on appeal furthers the purpose of § 13-36-205, MCA, and is consistent with the discretionary award by the District Court. See Bozeman Daily Chronicle v. City of Bozeman (1993), 260 Mont. 218, 232, 859 P.2d 435, 444. Therefore, we conclude that Overland is entitled to an award of costs and reasonable attorney’s fees for this appeal.

Affirmed and remanded for determination of the amount of attorney’s fees and costs to be awarded.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON and HUNT concur.

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority opinion.

Gaylen Marsh waged a write-in campaign for sheriff of Sheridan County and won. Mike Overland lost. Election judges in Sheridan County who were responsible for determining the voters’ intent, and who were in the best position to do so, agreed that Gaylen Marsh won. Now this Court, far removed from the politics of Sheridan County and totally unfamiliar with the persons involved, has set aside Gaylen Marsh’s election, disenfranchised hundreds of Sheridan County voters who chose him as their sheriff, struck a blow against democracy, and once again has elevated form over substance.

Any analysis of the issues raised by this appeal should have started out with the following consideration:

Because an election contest involves the right of qualified voters to have their ballots counted for the candidate of their choice, the right of franchise is at stake. The right to vote is a fundamental political right. It is essential to representative government. Wesberry v. Sanders, 376 U.S. 1, 17-18, 84 S.Ct. 526, 535, 11 L.Ed.2d 481, 492 (1964) (“No right is more precious in a free country than that of having a voice in the election of those who make laws under which, as good citizens, we must live.”). Any alleged infringement of the right to vote must be carefully and meticulously scrutinized. Reynolds v. Sims, 377 U.S. 533, 561-562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506, 527 (1964).

Devine v. Wonderlich (Iowa 1978), 268 N.W.2d 620, 623.

The Montana statute which controls the outcome in this case recognizes the danger of infringing on the precious right to vote when it provides in part that: “If part of a ballot is sufficiently plain to determine the elector’s intention, the election judges shall count that part.” Section 13-15-202(3), MCA.

In an early application and analysis of nearly identical statutory language, this Court held that that language requires liberal application toward the end of counting votes, rather than rejecting them. In Peterson v. Billings (1939), 109 Mont. 390, 96 P.2d 922, we held that:

“It is a general rule that election laws must be liberally construed. This court, in Stackpole v. Hallahan, 16 Mont. 40, 40 Pac. 80 [28 L. R. A. 502], on page 57, 16 Mont., and page 85, 40 Pac. announces that ‘in the construction of election laws the whole tendency of American authority is towards liberality, to the end of sustaining the honest choice of the electors.’ The reason for this rule is that the paramount and ultimate object of all election laws under our system of government is to obtain an honest and fair expression from the voters upon all questions submitted to them.” (Dickerman v. Gelsthorpe [1897], 19 Mont. 249, 47 Pac. 999, 1001.)
“But if, from the marking of the ballot and substantial compliance with the law, the intent and choice of the voter clearly appear, then his ballot should be counted, unless the statute expressly or by clear inference forbids it; otherwise the true spirit of the election law might be violated by subordinating the essence to a mere element of detail, and substance might be sacrificed to form. The elective franchise is not conferred upon the citizen by the legislature, or by virtue of legislative enactments. The right to vote is a constitutional right, and is one of the bulwarks of our form of government and system of civil liberty.” (Id., 20 C. J. 154, 18 Am. Jur. 302, and many cases therein cited.) This is particularly true where there is a statutory provision similar to our section 777. [Now § 13-15-202(3), MCA.]

Peterson, 96 P.2d at 924-25.

We have never varied in our decisions from the guidance set forth in Peterson. The quoted language has been cited with approval as recently as 1987 in Rennie v. Nistler (1987), 226 Mont. 412, 414-15, 735 P.2d 1124, 1126.

With the rule in mind that ballots must be counted if the voter’s intent can be determined, our statutes establish qualifications for election judges which should assist them in making those determinations. Election judges must be registered voters of the county and the precinct in which they serve, but may not be a candidate or related to a candidate. Section 13-4-107, MCA. The Secretary of State prepares instructional materials for election judges and holds workshops every two years to instruct administrators and their staffs on the use of the materials. Before each election, all election judges who do not possess a current certificate of instruction must be instructed by the election administrator. Only after completing a training session, are judges certified. Section 13-4-203, MCA.

The requirement that election judges be residents of the precinct in which they serve furthers the objective that they be familiar with local candidates and their campaigns, the names and identities of persons in their community, and the political issues with which the elections they judge are concerned. All of these sources of information make them better able to perform the duty with which they are charged by § 13-15-202(3), MCA, which is to determine the “elector’s intention” when a question is raised.

With this statutory and decisional background, it is helpful to examine the relevant facts in this case. Gaylen Marsh resided in Plentywood, in Sheridan County. Prior to the 1994 election, he had worked in the Sheridan County Sheriff’s Office as a deputy, and in the City of Westby as a police officer. He was an unsuccessful candidate for sheriff of Sheridan County in 1986 and 1990. In 1994, he was an unsuccessful candidate for the democratic nomination for sheriff. Following his unsuccessful primary campaign, he made a decision to run as a write-in candidate.

So that write-in votes for him could be counted, Marsh filed a declaration of intent to run as a write-in candidate. He was the only person who did so. He also nominated a treasurer for his campaign. He advertised in newspapers and on the radio; he displayed sign boards and posters; he mailed campaign literature to the voters of Sheridan County; and he traveled throughout the County to meet and campaign among its voters, occasionally going door-to-door. He had two types of posters, but the larger and more frequently used posters simply said “Marsh for Sheriff.”

There are other Marshes in Sheridan County. All of them are related to Gaylen. However, none of them campaigned for the office of sheriff in the 1994 election. In fact none of them have ever sought political office, been politically active, or been involved in law enforcement in any capacity.

The election judges in Sheridan County were presumably familiar, in a general sense, with this background when they evaluated ballots in the 1994 sheriff’s election.

It was not necessary for this Court to break new ground in order to affirm the will of the voters in Sheridan County. Other state courts have considered challenges to ballots for write-in candidates under nearly identical circumstances. In Devine, the plaintiff was a write-in candidate for county board supervisor who lost the election by 50 votes after the district court rejected ballots which included only his surname or his surname and the first initial of his given name. On appeal to the Iowa Supreme Court, that court first noted that its rule by which the validity of ballots are judged, is similar to our statutory rule. Ballots in that state are valid when they include sufficient information to indicate the person for whom the voter intended to cast his or her ballot. That court held that the following circumstances are to be considered in arriving at that determination:

As these cases hold, the issue is to be decided in light of all facts of a general public nature surrounding the election which the voter may be presumed to know and in view of which he may be presumed to have exercised his franchise. Among the circumstances bearing on the determination of voter intent are whether the write-in candidacy was well publicized and whether other candidates and other residents of the locality involved had the same or similar surname.

In this case, Devine’s candidacy was well publicized and advertised. Because of this and because of his prior candidacy for the same office, his name was familiar to many voters in this rural, lightly-populated county. Ten other residents of the county bore the same surname, but all were relatives of Devine and none was a candidate for this or any other office. ...

... In view of Devine’s active candidacy, the publicity and advertising which accompanied it, and the unlikelihood of his being confused with the few other persons having the same surname, none of whom were shown to be politically active, the use of his surname alone was sufficient to indicate a vote for him.

Devine, 268 N.W.2d at 627.

All of the factors considered significant by the Iowa Supreme Court are present in this case. Marsh’s candidacy was an active one attended by substantial publicity. Although there were other residents in Sheridan County with the same surname, all were relatives, none was a candidate, and none was politically active. Under these circumstances, it is difficult to conclude at a distance of several hundred miles that the election judges who were intimately familiar with the local election were not in a better position to determine the intention of those voters who wrote in the name “Marsh” as their choice for Sheridan County Sheriff.

The Iowa Court also listed decisions from California, Illinois, Kentucky, Michigan, Missouri, New Jersey, New York, and Rhode Island which support the same conclusion. Devine, 268 N.W.2d at 627.

Even more similar and more recent is Meyer v. Lamm (Colo. 1993), 846 P.2d 862, which is so casually rejected by the majority. In Meyer, as in this case, the Boulder County Clerk and Recorder instructed the recount judges, based on advice from the Secretary of State, that write-in ballots which contained only Lamm’s surname should not be counted. The district court held that those ballots should be counted, and the Supreme Court of Colorado affirmed. Although statutory law in Colorado required that a write-in candidate’s full name be used on the ballot, that court held that strict compliance with that requirement would unduly infringe upon the suffrage rights of Colorado voters. Meyer, 846 P.2d at 875. It also held that to give the fullest effect to votes cast, it was proper to consider extrinsic evidence to determine the voters’intent. After doing so, it arrived at the following conclusion for the following reasons:

Under the test of substantial compliance, and considering the circumstances surrounding the election of District 13, we agree that write-in votes for “Lamm,” “Ms. Lamm,” “Miss Lamm,” or “Mrs. Lamm” should be counted for Peggy Lamm. The evidence adduced at the hearing indicated that Peggy Lamm was the only person in District 13 that had campaigned as a write-in candidate for representative. She was the only person who had filed the requisite affidavit of intent to run and was thus the only person other than Drew Clark eligible to be elected to the office. There was evidence that Lamm’s campaign was extensive and vigorous and that she had obtained the editorial endorsement of a number of newspapers in the metropolitan area. Given these facts, as well as the absence of any official instructions to voters that a valid write-in vote must contain more than a last name, we find that the intention of these voters to vote for Peggy Lamm can be ascertained with the requisite certainty.

Our holding is consistent with the case law in other jurisdictions.

Meyer, 846 P.2d at 877.

Other than editorial endorsements, all of the factors considered significant by the Colorado Supreme Court are present in this case. Gaylen Marsh was the only person who had campaigned as a write-in candidate in Sheridan County. He was the only person who had filed a declaration of intent to run as a write-in candidate for sheriff. His campaign was extensive and vigorous. And last but not least significant, there was a total absence of any instructions, either verbal or written, to voters in Sheridan County which indicated that a write-in vote for Marsh must include his first name or initial to be counted.

In the face of numerous precedent to the contrary from other jurisdictions under eerily similar circumstances, the majority has forged ahead with its commitment to second-guess Sheridan County’s election judges without so much as citing one authority in support of its conclusion. None of the Montana precedent cited in the majority opinion addresses facts even remotely similar to the facts in this case, and of those Montana precedents, only the Peterson decision cites to the appropriate and controlling statute. To the extent that the Peterson case established a rule which can be applied to this case, it requires reversal of the District Court.

The majority concludes that because twenty-eight other registered voters in Sheridan County have the surname “Marsh,” it is speculative who voters in that county intended to elect when they placed that name on a ballot for county sheriff. However, only one of those twenty-eight people named Marsh was a candidate for county sheriff.

The majority finds it significant that several voters cast a ballot for a Marsh with a different first name. Obviously, based on the facts in this case, those voters were mistaken about their candidate’s first name. However, the simple solution to those mistakes is to disregard those ballots. Marsh does not Contend on appeal that they should be considered.

Finally, the majority concludes that “it cannot be determined without speculation that the ‘Marsh’ votes were intended for Gaylen ....” However, common sense suggests otherwise, and so did the election judges who were in the best position to know.

Because I would reverse the District Court’s judgment that the surname “Marsh” was insufficient to indicate the intent of voters pursuant to the requirements of § 13-15-202, MCA, it would not normally be necessary to discuss the second issue addressed in the majority opinion. However, the majority’s rationale for deciding that issue is so far off-base, that it requires some comment.

The majority has resolved Issue 2 by concluding that the recount board has authority to evaluate the adequacy of ballots, rather than simply count them. There is, of course, no statutory basis for this conclusion, and therefore, the majority rationalizes that authority which is not provided by any single statute can somehow be created out of whole cloth by combining several statutes which individually provide no authority.

The fallacy of the majority’s conclusion is best illustrated by simply setting forth the statute upon which it principally relies. Section 13-16-412, MCA, provides as follows:

The county recount board in recounting the ballots shall count, at the same time, the votes cast in the precincts in which a recount is ordered for the several candidates in whose behalf a recount is ordered in the following manner:

(1) The election administrator shall produce, unopened, each sealed package or envelope received from the election judges of the precinct or precincts in which a recount is ordered, containing all ballots voted in the precinct or precincts.

(2) A member of the county recount board shall open each sealed package or envelope and remove the ballots.

(3) One of the members of the board shall read each ballot aloud. As the ballots are read, two clerks shall write the votes cast for each individual in each precinct, at full length, on previously prepared tally sheets. The tally sheets shall show the names of the respective candidates, the office or offices for which a recount is made, and the number of each election precinct.

Section 13-16-415, MCA, provides that:

After a recount is completed, tally sheets shall be compared and the correctness of all reports of votes cast ascertained. The totals for each candidate or on each issue shall be compiled and checked for accuracy.

Section 13-16-412, MCA, sets forth only a procedure for counting ballots. It bestows no authority to evaluate the adequacy of ballots or reject any ballot included in the sealed envelope produced by the election administrator.

Section 13-16-415, MCA, authorizes the recount board to evaluate the correctness of “all reports of votes” and verify the “totals” for each candidate to determine that those “totals” are accurate. It makes no mention of any authority to analyze the validity of any ballot or to reject any ballot.

Furthermore, the recount board is simply composed of three members of the local governing body, in this case, the county commissioners. Section 13-16-101, MCA. Unlike election judges, members of the recount board are not required to live in any particular part of the county and there are no educational requirements for recount board members. These qualifications are unnecessary for a group of people whose only obligation is to count ballots.

Only election judges are given statutory authority to accept or reject ballots. Section 13-15-202(3), MCA, provides in part that:

A ballot or part of a ballot is void and may not be counted if the elector’s choice cannot be determined. If part of a ballot is sufficiently plain to determine the elector’s intention, the election judges shall count that part.

Section 13-15-203, MCA, instructs election judges on the procedure to follow for rejected ballots. It requires:

A ballot rejected for illegality shall be marked by the election judges by writing across the face, “rejected on the ground of ...”, filling the blank with a brief statement of the reasons for the rejection. The statement shall be dated and signed by a majority of the judges.

No similar procedure for documenting their reasons for rejection of a ballot is provided in the chapter pertaining to election recounts.

It is obvious from this clear statutory scheme that only election judges, with their superior familiarity and qualifications, are authorized by statute to reject and accept ballots. The majority’s conclusion to the contrary is a transparent attempt to affirm an unauthorized result without any support in the law.

By their decision in this case, the majority thumb their collective noses at the voters in Sheridan County, strike a blow against democracy, and demonstrate once again that technicalities are more important than substance in the rarified atmosphere of the Supreme Court. For these reasons, I dissent from the majority opinion. I would reverse the judgment of the District Court and return to Gaylen Marsh the election that he won at the ballot box but lost in court.


text:
    FROM: The District Court of the 8th Judicial District. County of Cascade.
    STATE OF MONTANA, Plaintiff, vs. Antonio Shay McCann, Defendant.
    NO. CDC 91-012 DECISION
    DATED this 19th day of April, 1995.
   On July 8, 1994, the defendant’s three (3) year suspended sentence for the offense of Domestic Abuse was revoked and the defendant was ordered to serve three (3) years in Montana State Prison. The three (3) year sentences ordered in Case CDC 90-277 and CDC 91-012 are to run consecutively. The Court notes that the defendant served 110 days in jail in connection with Case CDC 90-277 and Case CDC 91-012 and was given credit for the 110 days he had been incarcerated. In the Court’s discretion, no street time will be allowed on these sentences in Case CDC 90-277 and CDC 91-012. It is ordered that the sentences in Case CDC 90-116, Case CDC 90-277 and Case CDC 91-012, are to run consecutively, which means that the defendant is sentenced to serve 11 years in the Montana State prison on the revocation of these three (3) suspended sentences.

On March 17, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

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

It is hereby ordered that the petition is dismissed.

Done in open Court this 17th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.


text:
    FROM: The District Court of the 8th Judicial District. County of Cascade.

      STATE OF MONTANA, Plaintiff, vs. Antonio Shay McCann, Defendant.
    NO. CDC 90-277 DECISION
    DATED this 19th day of April, 1995.
   On July 8, 1994, the defendant’s three (3) year suspended sentence for the offense of Domestic Abuse was revoked and the defendant was ordered to serve three (3) years in Montana State Prison. The three (3) year sentences ordered in Case CDC 90-277 and CDC 91-012 and CDC 90-116 are to run consecutively, which means that the defendant is sentenced to serve 11 years in Montana State Prison on the revocation of these three (3) suspended sentences.

On March 17, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

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

It is hereby ordered that the petition is dismissed.

Done in open Court this 17th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.


text:
    FROM: The District Court of the 8th Judicial District. County of Cascade.
    STATE OF MONTANA, Plaintiff, vs. Antonio Shay McCann, Defendant.
    NO. CDC 90-116 DECISION
   On July 8, 1994, the defendant’s five (5) year suspended sentence for the offense of Domestic Abuse, a Felony was revoked and the defendant was sentenced to serve five (5) years in Montana State Prison. In the original sentencing in said case, the defendant was given credit for the 109 days he had been incarcerated. In the exercise of the Court’s decision, no street time credit will be allowed to the defendant. It is ordered that the sentences in Case CDC 90-116, Case CDC 90-277 and Case CDC 91-012, are to run consecutively, which means that the defendant is sentenced to serve 11 years in the Montana State Prison on the revocation of these three (3) suspended sentences.

On March 17, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

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

It is hereby ordered that the petition is dismissed.

DATED this 19th day of April, 1995.

Done in open Court this 17th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. Jack Joseph McCarty, Defendant.
    NO. 11155 DECISION
    DATED this 19th day of April, 1995.
   On August 30, 1994, the defendant was sentenced to a term of one (1) year in the Missoula County Jail in Missoula, MT. for the offense of Count I: Domestic Abuse, a Misdemeanor; ten (10) years in the Montana State Prison with five (5) years suspended for Count II: Criminal Endangerment, a Felony; ten (10) days in the Missoula County Jail on each count for Count III, IV, and V: Operating a Motor Vehicle by a person with an alcohol concentration of .10% or more, a misdemeanor; Failure to have proof of insurance in vehicle, a misdemeanor and operating a motor vehicle without a valid driver’s license, a misdemeanor. Said sentences shall run concurrently with each other. Defendant shall be designated a non-dangerous offender for the purposes of parole. Defendant shall receive credit for time served at Missoula County Jail from May 13, 1994, through date of sentencing, August 30, 1994, in the amount of one hundred ten (110) days. Terms and conditions of probation shall remain the same as listed in the August 30, 1994 Judgment.

On March 16, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence will 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 find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

Done in open Court this 16th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.

The Sentence Review Board wishes to thank Jack McCarty for representing himself in this matter.


text:
    FROM: The District Court of the 11th Judicial District. County of Flathead.
    STATE OF MONTANA, Plaintiff, vs. John Alan Morrison, Defendant.
    NO. DC 94-102B DECISION
    DATED this 19th day of April, 1995.
   On December 2, 1994, the court found the defendant guilty of two counts of Criminal Possession of Dangerous drugs with intent to sell, a felony; and for Count I, the defendant shall be sentenced to eight (8) years at the Montana State Prison. For Count II, the defendant shall be sentenced to twenty (20) years at the Montana State Prison with twelve (12) years suspended. Said sentences shall run concurrently. During the suspended portion of his sentence, the defendant shall abide by the terms and conditions as listed in the December 2, 1994 decision. The defendant shall be given credit for 3 days served in the detention center in pre-sentence incarceration as of November 30, 1994. The court further recommends that the defendant be required to complete chemical dependency treatment prior to his release on parole.

On March 17, 1995, 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 Matt Clifford, legal intern of the Montana Defender Project. The state was not represented.

The Honorable Ted O. Lympus abstained from hearing this case. The defendant and counsel agreed to have a hearing with a two-judge panel.

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. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence is hereby amended to read as follows:

1.The defendant shall be committed on Count I of the Information to the Department of Corrections and Institutions for a period of 12 years. Upon any probation or parole or release from Montana State Prison the defendant shall be subject to those conditions as stated on pages 2 and 3 of the Order of Judge Keedy dated the 6th of December, 1994.

2.The defendant shall be committed on Count II of the Amended Information to the Department of Corrections and Institutions for a period of 12 years. Upon any probation or parole or release from Montana State Prison the defendant shall be subject to those conditions as stated on pages 2 and 3 of the Order of Judge Keedy dated the 6th of December, 1994.

3.The sentences for Counts I and II shall be served concurrently.

Reasons for the sentence are: (1) It now conforms more closely to sentences of like crimes or persons with like records in the State of Montana. (2) It presents adequate punishment to the defendant considering his record, and also offers a chance for rehabilitation. (3) Considering the non-violent nature of the crime and the present situation at Montana State Prison, the Department of Corrections should, in this particular case, have the discretion to decide whether the security of Montana State Prison is required.

Done in open Court this 17th day of March, 1995.

Hon. John Warner, Chairman, Hon. Frank Davis, Member.

The Sentence Review Board wishes to Matt Clifford, legal intern of the Montana Defender Project for representing John Morrison in this matter.