text:
    LIBERTY NORTHWEST INSURANCE CORP., Petitioner and Appellant, STIMSON LUMBER COMPANY, Employer and Appellant, v. CHAMPION INTERNATIONAL CORP., Respondent and Respondent.
    No. 96-368.
    Submitted on Briefs February 13, 1997.
    Decided October 10, 1997.
    54 St.Rep. 1051.
    945 P.2d 433.
    285 Mont. 76.

      For Appellants: Larry W. Jones, Senior Attorney; Liberty Northwest Insurance Corp.; Missoula.
    For Respondent: Bradley J. Luck; Garlington, Lohn & Robinson; Missoula.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The petitioner, Liberty Northwest Insurance Corporation, which insures the Stimson Lumber Company against workers’ compensation claims, filed a petition in the Workers’ Compensation Court of the State of Montana in which it sought a decision from that court that the disability of Stimson’s employee, Ronald Deschamps, was the result of an injury he sustained while employed by Champion International Corporation and, therefore, that Liberty was entitled to indemnification for benefits it paid to Deschamps. The Workers’ Compensation Court held that Deschamps’ disability was related to activities he performed while employed by Stimson and, therefore, that Liberty is not entitled to indemnification. Liberty appeals from that decision. We affirm the judgment of the Workers’ Compensation Court.

The dispositive issue on appeal is whether the Workers’ Compensation Court’s finding that Deschamps’ disability was caused by work-related activities performed during the course of his employment with Stimson Lumber Company is supported by substantial evidence.

FACTUAL BACKGROUND

The parties agree that Ronald Deschamps injured his lower back on March 30, 1992, while working for Champion International in Missoula. His treating physician, Michael A. Sousa, M.D., diagnosed degenerative disc disease with a slight bulge in the disc between his fifth lumbar vertebra and his first sacral vertebra. Champion accepted liability for Deschamps’ injury and paid his medical and disability benefits.

By June 25,1992, Dr. Sousa’s records indicate that Deschamps had regained full range of motion and that most of his pain was gone. On July 6, 1992, he released Deschamps to return to work at Champion as a millwright with no restrictions.

By November 17,1992, Dr. Sousa described Deschamps’problems as “minimal.” On January 28, 1993, Dr. Sousa verified, in a letter to Champion, that Deschamps had reached maximum medical improvement and that his condition was stable. At that time, he had pain at the extreme extensions of his range of motion, but otherwise appeared to be doing well.

Although Deschamps was employed by Champion as a millwright, which was classified as a heavy duty job and involved machinery repair, he had been limited to lighter duty carpentry work since undergoing an angioplasty in 1990. When he returned to work following his back injury in July 1992, it was as a light duty carpenter.

During early November 1993, Champion’s Missoula mill was purchased by Stimson Lumber Company. Shortly before that purchase, or shortly thereafter, Deschamps was given a pre-employment medical examination to assure that he was physically capable of performing a millwright’s duties. As a result of that examination, he was found to be qualified to work as a millwright without restrictions.

Deschamps continued working at the mill following Stimson’s takeover. For the first several months, he continued to work as a light duty carpenter; however, eventually he was assigned to heavier duty millwright work. Following the change in his work activities, his back became progressively worse. On June 8, 1995, Deschamps was told by Dr. Sousa that he could no longer continue working as a millwright due to his low back pain. He has not returned to work since that time.

During 1994, Deschamps sought additional benefits from Champion due to the physical problems he was experiencing; however, Champion denied liability. In 1995, Liberty accepted liability for Deschamps’ claim as an occupational disease. However, on July 20, 1995, Liberty requested that Champion accept liability for Deschamps’ disability. Champion declined to do so.

After a hearing at which Deschamps and Dana M. Hedapohl, M.D., testified, and after consideration of the testimony of Dr. Sousa by deposition, the Workers’ Compensation Court found that Deschamps’ work for Stimson accelerated and significantly aggravated his preexisting degenerative disc disease, and that his disability was not a mere result of the natural progression of his underlying condition and, therefore, concluded that Stimson was not entitled to indemnification from Champion.

DISCUSSION

Was there substantial evidence to support the Workers’ Compensation Court’s finding that Deschamps’ work for Stimson Lumber Company accelerated and significantly aggravated his preexisting degenerative disc disease, and that his disability is not the result of a natural progression of his underlying condition?

We review the Workers’ Compensation Court’s findings of fact for substantial credible evidence. See Buckentin v. State Comp. Ins. Fund (1994), 265 Mont. 518, 520, 878 P.2d 262, 263. If there is conflicting evidence, we consider whether substantial evidence supports the court’s findings, not whether other evidence supports contrary findings. See Buckentin, 265 Mont. at 520, 878 P.2d at 263. Where medical testimony is offered by deposition, this Court is in as good a position as the trial court to determine the weight of the medical testimony. However, deposition testimony must be reviewed in the context of testimony from other witnesses who gave testimony that the trial court did, in fact, have an opportunity to observe. See McIntyre v. Glen Lake Irrigation Dist. (1991), 249 Mont. 63, 67, 813 P.2d 451, 454.

In Caekaert v. State Compensation Mutual Insurance Fund (1994), 268 Mont. 105, 111, 885 P.2d 495, 499, we noted that:

Montana statutorily recognizes a version of the last injurious exposure rule in occupational disease cases. Section 39-72-303(1), MCA, provides that “[w]here compensation is payable for an occupational disease, the only employer liable is the employer in whose employment the employee was last injuriously exposed to the hazard of the disease.”

In Caekaert, we quoted, with approval, from § 95.27 of Larson’s Workmen’s Compensation Law, which provides that:

[Wlhen disability has once resulted from occupational disease, a second disability occurring under a different carrier will be chargeable to the first carrier if it is a recurrence of the first disability. The persistence of symptoms in the meantime, and the failure to demonstrate an incident that can independently explain the second onset, are strong grounds for finding a mere recurrence ....
However, if the later exposure should increase the degree of disability caused by the initial exposure, the second carrier might become responsible; but in such a case it would be necessary to distinguish carefully between the increased disability from natural progress of the disease and that resulting from the added exposure.

Caekaert, 268 Mont. at 111, 885 P.2d at 499 (quoting Larson § 95.27).

Based on these rules, we concluded in Caekaert that “for the last injurious exposure rule to apply, there must be evidence of a second injury or injurious exposure that materially or substantially contributed to Caekaert’s symptoms from carpal tunnel syndrome.” Caekaert, 268 Mont. at 112, 885 P.2d at 499.

On appeal, Stimson first contends that the Workers’ Compensation Court erred by misapplying the Caekaert rule. It argues that the court did not distinguish between a worsened anatomical condition for which the second employer would be liable, and worsening symptoms for which the second employer is not liable. However, we conclude that that is not a correct interpretation of the Workers’ Compensation Court’s decision. That court specifically found, at Finding of Fact No. 59, that:

Based on all of the medical testimony, and claimant’s description of his increased symptoms after being transferred back to a millwright position, I find that claimant’s work at Stimson accelerated and significantly aggravated his pre-existing degenerative back condition. While other factors, including other medical conditions, may have contributed to his overall perception of his pain, his work at Stimson was a significant factor in his increasing pain and, ultimately, his inability to work.

(Emphasis added.)

It was based on this finding, and its application of the Caekaert decision to this finding, that the Workers’ Compensation Court concluded that Stimson was liable for Deschamps’ disability. We conclude, therefore, that the Workers’ Compensation Court did not misapply the Caekaert decision.

Stimson’s second and principal contention on appeal is that Finding No. 59 is not supported by substantial evidence. However, after our review of the record, we conclude that there was, in fact, substantial evidence to support the Workers’ Compensation Court’s finding that Deschamps’ current disability is related to his work activities on behalf of Stimson.

Deschamps testified that by March 1993 his physical problems from his 1992 injury had stabilized and were minimal. However, when he saw Dr. Sousa again in April 1994 after he had been working for Stimson for nearly six months, he had different problems than before and was not doing as well as he had been. He was experiencing pain in his hip, left leg, and right groin. He testified that his back-related physical limitations changed dramatically from November 1, 1993, to June 1995 when he was taken off work. He could do the work he was released to do in November 1993. He could not do the work in June 1995.

Deschamps testified that when he started working for Stimson following the pre-employment physical examination done on behalf of Stimson, he was able to and was authorized to work without restriction. However, by the time he left his job he could no longer perform his responsibilities. Finally, he expressed the opinion that the work he did while employed by Stimson did make his condition worse.

Finally, during his deposition, Deschamps gave the following testimony:

Q. And since you happened to be working for Stimson for those two years, apparently the work activity at Stimson made it [his back] worse?
A. Work made it worse while I was working at Stimson.
Q. ... It is your feeling that during those two years, the work at Stimson did make your back condition worse?
A. Yes.
Q. How about your arm conditions? Did they get worse during those two years?
A. Yes.
Q. Do you think your work at Stimson helped make those conditions worse?
A. Yes.

Stimson is correct that it was Dr. Hedapohl’s opinion that Deschamps’ back injury was not permanently aggravated or worsened during his employment with Stimson, but that only his symptoms were temporarily aggravated, and that if his permanent disability is worse now than before, it is the result of a natural deterioration of the condition with which he began employment for Stimson. Stimson is also correct that Dr. Sousa had originally expressed the opinion that Deschamps’ disability for which he was taken off work in June 1995 was the result of a natural progression of the disease caused by his injury sustained while working for Champion. However, after considering the history of Deschamps’ complaints and physical limitations before and after his Stimson employment, Dr. Sousa agreed that a logical conclusion from that history was that by the time Deschamps terminated his employment, his back condition and his capabilities had changed dramatically since November 1993. He testified that, in his opinion, Deschamps was injured at Champion, but that his condition had stabilized. He then went to work for Stimson for eighteen months and aggravated the underlying condition in his lower back. Dr. Sousa gave the following testimony in response to the following questions:

Q. So with that weakened event, it’s more probable than not that 18 months as a millwright [for Stimson] caused a permanent aggravation of the underlying condition?
A. You know, his condition and complaints would be consistent with a permanent aggravation. ...
Q. And it’s more probable than not that he would attribute that change in condition, change in ability to work, to the 18 months of millwright work at Stimson?
A. Something definitely happened in the interim, so, you know, there’s a probable relationship there.

Dr. Sousa expressed the opinion that if Deschamps was credible regarding his history of complaints and the extent of his disability, then there was a causal relationship between his work activities at Stimson and a deterioration of his physical condition.

The Workers’ Compensation Court found, based on its observation of Deschamps’ testimony, that he had been truthful.

Based on this evidence, we conclude that the Workers’ Compensation Court’s finding that the condition of Ronald Deschamps’ back disease was significantly aggravated by his employment at Stimson Lumber Company is supported by substantial evidence and that, based on that finding, the Workers’ Compensation Court correctly assigned liability for Deschamps’ disability and medical benefits to the employer for whom he was working at the time of his ‘last injurious exposure.”

The judgment of the Workers’ Compensation Court is affirmed.

JUSTICES NELSON, LEAPHART, GRAY and HUNT concur.


source: Caselaw Access Project

author: JUSTICE LEAPHART

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MICHELLE RENE NEWILL, Defendant and Appellant.
    No. 97-043.
    Submitted on Briefs September 11, 1997.
    Decided October 10, 1997.
    54 St.Rep. 1055.
    946 P.2d 134.
    285 Mont. 84.

      For Appellant: Morgan M. Modine; Modine & Thompson, Missoula.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Jennifer Anders, Assistant Attorney General, Helena; Robert L. “Dusty” Deschamps, III, Missoula County Attorney, Betty Wing, Deputy Missoula County Attorney, Missoula.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Michelle Newill (Newill), appeals from the decision of the Fourth Judicial District Court, Missoula County, denying Newill’s motion to suppress evidence. Newill asserts that hospital records regarding her blood alcohol content (BAC) should have been suppressed by the District Court because the blood samples used to determine her BAC were not taken in accordance with § 61-8-402, MCA, (implied consent statute). The District Court held that the blood test conducted by the hospital falls within the “other competent evidence” inclusion of § 61-8-404(3), MCA, and denied the motion to suppress. We affirm.

Issue Presented

Did the District Court err in denying Newill’s motion to suppress evidence by holding that the results of a medical blood test used to determine Newill’s BAC fall within “other competent evidence” under § 61-8-404(3), MCA?

Background

Newill suffered severe injuries in a motor vehicle accident on January 24, 1996. At the scene of the accident, emergency response unit personnel found an empty beer can in Newill’s lap and smelled alcohol on her breath. After extracting Newill from her vehicle, emergency personnel transported her to St. Patrick Hospital for treatment. At the hospital, laboratory technician, Martin Guthrie (Guthrie), was directed by the attending physician to take a blood sample for medical diagnostic and treatment purposes. In addition, the hospital tested Newill’s BAC, as is normal hospital procedure when physicians believe alcohol is involved. The hospital records, showing the BAC results of Newill’s blood sample, indicated that her BAC was 0.2050, well over the 0.10 statutory threshold for an inference of intoxication.

During questioning at the hospital, Newill admitted to the interviewing officer that she had been drinking. She also gave the officer permission to the have a blood sample taken for determining her BAC. However, after four attempts, the nurse directed by the officer to take the blood was not able to obtain a sample, so the officer decided to cease any further attempts.

The officer investigating the accident cited Newill for violation of § 61-8-401, MCA, driving under the influence of alcohol. Newill appeared in Missoula County Justice Court and entered a plea of not guilty. The State of Montana obtained an investigative subpoena ordering St. Patrick Hospital to produce Newill’s emergency room records, including the analysis of all blood samples. (We note that this Court recently determined that medical records are protected under the right of privacy guarantee of Article II, Section 10 of the Montana Constitution and therefore are only discoverable through an investigative subpoena upon a showing of a compelling state interest. State v. Nelson (1997), [283 Mont. 231], 941 P.2d 441, 448-49. The right of privacy issue, however, has not been raised in the context of this appeal.) Newill filed a motion to suppress the hospital records containing the BAC results asserting that the records did not comport with the foundational requirements of the implied consent statute. The Justice of the Peace granted the motion to suppress, and the State of Montana appealed to the District Court for a trial de novo. Again, Newill moved to suppress the hospital records. As a result, the parties briefed the evidentiary issue, and the District Court held a suppression hearing.

At the hearing, Guthrie testified that he used standard hospital procedure when he drew Newill’s blood and that the sample was analyzed by state-of-the-art equipment which is tested for quality control every 24 hours. He also testified that the computer printout containing the results of the blood test is a record that the hospital keeps in the normal course of business. The District Court denied Newill’s motion to suppress the hospital record of her BAC. Newill then entered into a plea agreement with the State of Montana whereby Newill agreed to enter an “Alford” plea to a violation of § 61-8-406, MCA, driving with a blood alcohol level of 0.10 or more. Newill reserved her right to appeal the District Court’s denial of her motion to suppress and the District Court stayed execution of Newill’s sentence pending the outcome of this appeal.

Standard of Review

The standard of review of a district court’s denial of a motion to suppress is whether the court’s findings were clearly erroneous and whether the findings were correctly applied as a matter of law. State v. Siegal (1997), [281 Mont. 250], 934 P.2d 176, 180.

Discussion

Newill contends that the District Court erred in denying her motion to suppress because the blood test results admitted into evidence were not obtained in compliance with Montana law. Specifically, the implied consent statute requires that testing of a person’s blood be administered at the direction of a peace officer who has reasonable grounds to believe the person has been driving under the influence of alcohol. Section 61-8-402, MCA. In addition, § 61-8-404(l)(b)(ii), MCA, allows a report of the results of any test of a person’s blood into evidence if the test is conducted by a person competent to withdraw the blood. Finally, § 61-8-405, MCA (1995), states the competency requirements: “[o]nly a physician or registered nurse or other qualified person under the supervision and direction of a physician or registered nurse acting at the request of a peace officer may withdraw blood for the purpose of determining any measured amount or detected presence of alcohol in the person.” Relying on these statutory provisions, Newill contends that the blood samples taken by the hospital for medical purposes, and not at the behest of a peace officer, should not be admitted as evidence of her BAC. The State of Montana asserts that since the blood samples were taken for medical treatment and diagnostic purposes, the tests do not need to be conducted in accordance with the criteria of the implied consent statute.

This Court has not had an opportunity to determine the applicability of the implied consent statute criteria to blood samples drawn for medical reasons rather than at the request of a peace officer. The West Virginia Supreme Court of Appeals (West Virginia court) decided a similar issue under almost identical facts in State ex rel. Allen v. Bedell (W.Va. 1994), 454 S.E.2d 77. In Bedell, the state offered results of a medical diagnostic blood test as evidence of Petitioner’s, BAC. Like Newill, the Petitioner in Bedell claimed that the blood sample, taken for treatment and diagnostic purposes, should be suppressed because it was not taken in accordance with West Virginia statutory law. Bedell, 454 S.E.2d at 78. West Virginia, like Montana, has an implied consent statute that provides a method for taking blood samples for purposes of determining BAC. However, the West Virginia court determined that the requirements of the implied consent statute had no application to the diagnostic blood test and did not serve as a prohibition to its admissibility. Bedell, 454 S.E.2d at 80. The West Virginia court reasoned that the legislature’s specific inclusion of authorization for law enforcement to direct blood tests to be taken “does not intimate a legislative intent to disallow ... evidence of alcohol content obtained by medical personnel in the course of treatment.” Bedell, 454 S.E.2d at 79. We agree with the reasoning of the West Virginia court in Bedell. The fact that the Montana legislature has imposed specific requirements for the taking of blood samples at the request of law enforcement, does not mean blood samples drawn for medical reasons must comply with the same criteria or be excluded as evidence.

Moreover, the Montana legislature, in addition to specifically providing methods by which law enforcement can obtain evidence of the BAC of an individual suspected of driving while under the influence of alcohol, also provided broad evidentiary provisions for other evidence. For example § 61-8-404, MCA (1995), which controls the admissibility of evidence in a prosecution for driving under the influence provides at (l)(a), “evidence of any measured amount or detected presence of alcohol or drugs in the person at the time of the act alleged, as shown by an analysis of the person’s blood, breath, or urine, is admissible.” Furthermore, subsection (3) states that “[t]he provisions of this part do not limit the introduction of any other competent evidence bearing on the question of whether the person was under the influence of alcohol ....” Section 46-8-404(3), MCA (1995). We determine that the criteria for admissibility under subsection (l)(b), relating to blood tests administered under the implied consent statute, do not apply to diagnostic blood tests taken by a hospital or treating physician. Rather, subsections (l)(a) and (3) allow the admission of such medical evidence.

Having determined that the foundational requirements of the implied consent statute did not apply, the only issue remaining for the District Court was whether the medical blood test taken at the hospital was “competent” evidence for purposes of admissibility under § 61-4-404(3), MCA. Guthrie demonstrated his competency to withdraw the blood sample. He testified that he is a registered medical laboratory technologist and his skill at taking blood samples surpasses that of an average emergency room nurse. In addition, Guthrie testified that the testing equipment at St. Patrick Hospital is state-of-the-art and a quality control check is performed on the equipment every 24 hours. Furthermore, St. Patrick Hospital’s lab testing standards regarding variation exceed the standards imposed by the State Department of Health.

The only discrepancy in the hospital records regarded the time of the collection of Newill’s blood. The hospital records noted the time of collection as 1:00 a.m. However, it is uncontroverted that Newill was still in transit to the hospital at that time. Guthrie explained that he was called to the emergency room at 1:05 a.m. and arrived at 1:10 a.m. He testified that all blood drawing procedures were accomplished at one time, and did not exceed a fifteen minute period. Guthrie explained that the 1:00 a.m. designation was likely a typographical error. The District Court found that the discrepancy was adequately explained by Guthrie and concluded that the typographical error did not effect the competency of the hospital record. We conclude that the blood test taken at the direction of the treating physician was admissible as other competent evidence bearing on whether Newill was under the influence of alcohol. Therefore, the District Court did not err in denying Newill’s motion to suppress. Affirmed.

JUSTICES GRAY, REGNIER, NELSON and HUNT, concur.


author: JUSTICE REGNIER

text:
    EASTERN LIVESTOCK COMPANY, INC., Plaintiff and Respondent, v. JOHN O’NEAL, Defendant and Appellant. JOHN O’NEAL, Third-Party Plaintiff and Appellant, v. WESLEY HENDRY; MARK CURRY, SR.; and MARK CURRY, JR., d/b/a CURRY LIVESTOCK, Third-Party Defendants and Respondents.
    No. 97-150.
    Submitted on Briefs July 23, 1997.
    Decided October 10, 1997.
    54 St.Rep. 1058.
    945 P.2d 931.
    285 Mont. 90.

      For Appellant: Timothy J. Whalen, Whalen & Whalen, Billings.
    For Respondent: Doug James; Moulton, Bellingham, Longo & Mather; Billings (for Respondent Eastern Livestock Company).
   JUSTICE REGNIER

delivered the Opinion of the Court.

In October 1995, plaintiff and respondent Eastern Livestock Company, Inc., filed an action in the District Court for the Thirteenth Judicial District in Big Horn Comity against John O’Neal to recover amounts allegedly owing in connection with a cattle purchase by O’Neal. Eastern Livestock brought suit against O’Neal, alleging breach of contract and conversion. On January 9, 1997, the District Court entered judgment in favor of Eastern Livestock and against O’Neal in the amount of $18,000. It is from entry of this judgment, as well as from an order requiring separate trials in this matter, that O’Neal now appeals. For the reasons discussed below, we affirm.

We find the following issues dispositive on appeal:

1. Did the District Court abuse its discretion in bifurcating Eastern Livestock’s action against O’Neal from O’Neal’s third-party claims?

2. Did the District Court err in imposing sanctions, in the form of a judgment entered in Eastern Livestock’s favor, against O’Neal?

FACTUAL AND PROCEDURAL BACKGROUND

In the spring of 1995, O’Neal, a Montana rancher, sold 84 bulls, priced at $1,500 each, to Wesley Hendry, an individual engaged in the business of buying and selling cattle in the state of Mississippi. Hendry subsequently paid O’Neal only a portion of the purchase price, leaving an outstanding balance of $34,000.

In early July 1995, O’Neal contacted Hendry and asked if he could arrange for O’Neal to purchase a number of steer calves. Hendry did so, and on July 13, 1995, O’Neal purchased 142 steer calves for $42,365.28. Eastern Livestock asserts it owned the calves at the time of purchase, but notes the animals were actually located at the Curry Livestock sorting facility in Centreville, Mississippi. Hendry, who arranged for the purchase and sale of the calves, was an independent commission agent who at times sold cattle on behalf of Curry Livestock. Curry Livestock, in turn, bought and sold cattle as a broker for Eastern Livestock and, in fact, received a commission from Eastern Livestock for the sale of the calves to O’Neal.

At O’Neal’s request, the calves were transported to a preconditioning yard in Sublette, Kansas. Hendry instructed O’Neal to direct payment for the calves to Eastern Livestock. Accordingly, O’Neal sent Eastern Livestock a check in the amount of $8,365.28, which amount represented the $42,365.28 purchase price less the $34,000 Hendry allegedly owed O’Neal pursuant to their prior transaction. O’Neal contends that Hendry held himself out as owner of the calves in question, and failed to disclose that he was acting as an agent or broker for either Curry Livestock or Eastern Livestock. O’Neal therefore maintains that, because Hendry was purportedly acting on his own behalf, and because Hendry owed him roughly $34,000 from a prior sales transaction, O’Neal was entitled to offset that amount from the $42,365.28 purchase price for the calves.

Acting on Eastern’s behalf, Curry Livestock and Hendry subsequently attempted to collect the unpaid balance. O’Neal failed to tender any additional payment, continuing to claim entitlement to an offset in the amount of the $34,000 debt allegedly owed him by Hendry. After attempting collection and making written demand upon O’Neal for payment, Eastern Livestock filed the present suit on October 20,1995. By way of its complaint, Eastern Livestock alleged claims for breach of contract and conversion, and sought to recover the $34,000 which remained due, plus interest.

O’Neal was served with a copy of the summons and complaint on November 8,1995, but failed to answer or otherwise respond. Accordingly, on December 15, 1995, the clerk of the district court entered O’Neal’s default pursuant to Rule 55(a), M.R.Civ.R On December 18, 1995, Eastern Livestock moved for entry of default judgment pursuant to Rule 55(b)(2), M.R.Civ.R On the following day, however, O’Neal filed a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), M.R.Civ.R, and Eastern Livestock subsequently withdrew its motion for entry of default judgment.

Eastern Livestock initiated discovery, and on May 7, 1996, it again filed a motion for entry of default judgment or, in the alternative, for summary judgment pursuant to Rule 56, M.R.Civ.R Two days later, O’Neal filed a motion to set aside the default entered against him on December 15, 1995. In an order dated June 5, 1996, the court granted O’Neal’s motion, and granted him permission to file his answer. Accordingly, on June 7, 1996, O’Neal filed his answer and a third-party complaint against Hendry and Mark Curry, Sr., and Mark Curry, Jr., d/b/a Curry Livestock. O’Neal brought claims against Hendry for fraud and negligence, and sought to recover against the Curry defendants for conversion. O’Neal additionally alleged liability on the part of the Curry defendants for Hendry’s allegedly negligent and fraudulent activities.

On June 28, 1996, the District Court denied Eastern Livestock’s motion for summary judgment, citing as a basis the presence of a number of genuine issues of material fact.

By way of a June 5, 1996, scheduling order, the District Court established an October 7, 1996, trial date and mandated that the parties engage in mediation prior to the September 13, 1996, final pretrial conference. O’Neal did not cooperate with Eastern Livestock’s attempts to initiate court-ordered mediation. Accordingly, on August 26, 1996, Eastern Livestock filed a motion for an order compelling O’Neal to participate in mediation. Soon thereafter, O’Neal filed a motion to vacate the trial date. In a September 16,1996, order, the court granted Eastern Livestock’s motion to compel mediation and denied O’Neal’s motion to vacate the October 7,1996, trial date.

On September 13,1996, Eastern Livestock filed a motion pursuant to Rule 42(b), M.R.Civ.R, seeking separate trials to address its claims against O’Neal, and O’Neal’s claims against the third-party defendants in this case. On the same day, in light of O’Neal’s continuing failure to participate in court-ordered mediation, Eastern Livestock additionally filed a motion for sanctions pursuant to Rule 16(f), M.R.Civ.R, asking that the court enter a default judgment in the amount of $18,000 against O’Neal.

The court granted Eastern Livestock’s motion for separate trials in an order dated October 1, 1996, and granted its motion for sanctions by way of a November 29,1996, order. On January 9,1997, the District Court entered judgment in Eastern Livestock’s favor and against O’Neal in the amount of $18,000. It is from this judgment, and from the District Court’s order granting Eastern Livestock’s motion for separate trials, that O’Neal presently appeals.

ISSUE 1

Did the District Court abuse its discretion in bifurcating Eastern Livestock’s action against O’Neal from O’Neal’s third-party claims?

As noted above, on September 13, 1996, Eastern Livestock filed a motion for separate trials pursuant to Rule 42(b), M.R.Civ.R, asking that the District Court address its claims against O’Neal in a trial separate from that of O’Neal’s third-party claims.

With respect to separate trials, Rule 42(b), M.R.Civ.R provides that:

The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues.

Rule 42(b), M.R.Civ.P., provides broad discretion to the district court in the handling of trial procedures. Tindall v. Konitz Contracting, Inc. (1989), 240 Mont. 345, 352, 783 P.2d 1376, 1380. Accordingly, we review a ruling under Rule 42(b), M.R.Civ.P., for an abuse of discretion. Monaco v. Cecconi (1979), 180 Mont. 111, 118, 589 P.2d 156, 160. See also May v. First Nat’l Pawn Brokers, Ltd. (1995), 270 Mont. 132, 134, 890 P.2d 386, 388 (recognizing that standard of review of discretionary trial court rulings is an abuse of discretion standard).

We have previously recognized that “[t]he District Court has discretion under Rule 42(b), Mont.R.Civ.P., to order a separate trial of any issue or issues in the cause before it, in furtherance of convenience or to avoid prejudice.” Monaco, 180 Mont. at 118, 589 P.2d at 160. This Court will not set aside a district court order establishing separate trials pursuant to Rule 42(b) absent a clear abuse of discretion. Monaco, 180 Mont. at 118, 589 P.2d at 160.

In an order signed October 1, 1996, the District Court granted Eastern Livestock’s motion for separate trials on the primary basis that Eastern Livestock would suffer prejudice were its motion not granted. In addition, recognizing that O’Neal had engaged in dilatory tactics to prevent litigation but that Eastern Livestock had diligently pursued its claim, the court found it necessary to order separate trials in furtherance of Eastern Livestock’s convenience.

O’Neal argues the District Court abused its discretion by ordering separate trials in this case, contending in part that Eastern Livestock failed to demonstrate it would be prejudiced without the bifurcation. O’Neal additionally argues the issues involved in Eastern Livestock’s action against him were inextricably intertwined with the issues involved in his claims against the third-party defendants.

In response, Eastern Livestock maintains the District Court properly bifurcated Eastern Livestock’s action from O’Neal’s third-party claims to prevent unnecessary delay, expense, and prejudice to Eastern Livestock, and to promote judicial economy. Eastern Livestock additionally contends the District Court properly bifurcated O’Neal’s case because the court lacked personal jurisdiction over the third-party defendants, and because O’Neal’s third-party claims arose out of a separate transaction in which Eastern Livestock had no involvement.

Following review of the record and consideration of the parties’ respective arguments, we hold the District Court did not abuse its discretion in ordering separate trials in this case. Although O’Neal argues otherwise, the record clearly supports the District Court’s determination that to deny Eastern Livestock’s motion for separate trials would have been to cause it undue prejudice and inconvenience. For example, the record indicates that O’Neal delayed in appearing in this case, delayed in moving to set aside the default entered against him, delayed in filing his answer and third-party complaint, and delayed in serving that third-party complaint upon the third-party defendants. Due to these various delays, neither O’Neal nor the third-party defendants were prepared to proceed with the trial scheduled for October 7,1996.

Thus, in addressing Eastern Livestock’s motion for separate trials, the District Court recognized it could either permit Eastern Livestock to proceed against O’Neal as scheduled on October 7, 1996, while allowing O’Neal to proceed in a subsequent trial against the third-party defendants, or it could continue the entire case. Based on O’Neal’s dilatory behavior, and to avoid further prejudicing or inconveniencing Eastern Livestock, the District Court granted Eastern Livestock’s motion for separate trials. The court’s decision to do so was not an abuse of discretion.

We have previously recognized that the primary consideration in determining the propriety of separate trials is “which procedure is most likely to result in a just final disposition of the litigation.” Preste v. Mountain View Ranches, Inc. (1979), 180 Mont. 369, 375, 590 P.2d 1132, 1135 (quoting State ex rel. Stenberg v. Nelson (1971), 157 Mont. 310, 318, 486 P.2d 870, 875). In Preste, we additionally noted that delay may constitute grounds for moving for a separate trial of a third-party claim under Rule 42(b). Preste, 180 Mont. at 375, 590 P.2d at 1135. As noted above, the record in the instant case is replete with evidence of continuing dilatory tactics on O’Neal’s part. We additionally note O’Neal’s repeated refusal to engage in court-ordered mediation, and his unwillingness to cooperate with Eastern Livestock’s attempts to initiate that mediation.

Thus, having considered the record before it, for the District Court to conclude that separate trials would best achieve a just disposition in this case was not an abuse of discretion. Although certain issues may have arisen in Eastern Livestock’s action, as well as in O’Neal’s third-party claims, the District Court did not err in determining that separate trials would permit O’Neal to litigate his third-party claims without causing Eastern Livestock further inconvenience or prejudice.

We note Eastern Livestock also contends the District Court properly bifurcated O’Neal’s case because the court lacked personal jurisdiction over the third-party defendants. In light of our holding that the District Court did not abuse its discretion in ordering separate trials to avoid prejudice and in the furtherance of convenience, however, we need not reach Eastern Livestock’s final argument.

Based on the foregoing, we hold the District Court did not abuse its discretion by deciding to bifurcate Eastern Livestock’s action from O’Neal’s third-party claims to prevent additional delay in the adjudication of Eastern Livestock’s claims against O’Neal and to prevent Eastern Livestock from incurring unnecessary expense and suffering additional prejudice.

ISSUE 2

Did the District Court err in imposing sanctions, in the form of a judgment entered in Eastern Livestock’s favor, against O’Neal?

In light of O’Neal’s repeated failure to participate in court-ordered mediation, on September 13, 1996, Eastern Livestock filed a motion for sanctions pursuant to Rule 16(f), M.R.Civ.R, asking that the court enter a default judgment against O’Neal in the amount of $18,000. The District Court granted Eastern Livestock’s motion on November 29, 1996, and on January 9, 1997, entered judgment against O’Neal.

We review the District Court’s imposition of sanctions in the form of a default judgment against O’Neal for an abuse of discretion. Eisenmenger by Eisenmenger v. Ethicon, Inc. (1994), 264 Mont. 393, 402, 871 P.2d 1313, 1319, cert. denied (1994), 513 U.S. 919, 115 S. Ct. 298, 130 L. Ed. 2d 211 (addressing propriety of sanctions for discovery abuses imposed pursuant to Rule 37(d), M.R.Civ.P). See also First Bank (N.A.)-Billings v. Heidema (1986), 219 Mont. 373, 375, 711 P.2d 1384, 1386 (standard of review of sanctions imposed for discovery abuses is whether the district court abused its discretion).

Rule 16(f), M.R.Civ.P, pursuant to which the court awarded sanctions, provides as follows:

If a party or party’s attorney fails to obey a scheduling or pretrial order, or if appearance is made on behalf of a party at a scheduling or pretrial conference, or if a party or party’s attorney is substantially unprepared to participate in the conference, or if a party or party’s attorney fails to participate in good faith, the judge, upon motion or the judge’s own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B), (C), (D). In lieu of or in addition to any other sanction, the judge shall require the party or the attorney representing the party or both to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorney’s fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust.

On appeal, O’Neal argues the District Court erred in awarding sanctions against him on the basis of his failure to participate in mediation and his repeated delays in this case. Although the court found otherwise, O’Neal first contends he did not attempt to delay the litigation of Eastern Livestock’s claim against him. For example, although O’Neal did not file an answer until June 7,1996, he argues he was prevented from doing so by the clerk’s entry of default against him and by Eastern Livestock’s subsequent motion for default judgment. Although the clerk of the district court entered O’Neal’s default on December 15, 1995, O’Neal did not file a motion to set aside that default until Eastern Livestock filed a motion for default judgment nearly five months later. Having reviewed the record, we hold the District Court did not err in finding that O’Neal had repeatedly delayed the procedural progression of Eastern Livestock’s claims against him, and did not err in relying upon O’Neal’s uncooperative behavior and history of delay as partial justification for the imposition of sanctions.

O’Neal additionally argues the District Court erred in awarding sanctions against him on the basis of his failure to participate in court-ordered mediation with Eastern Livestock. In granting Eastern Livestock’s motion for sanctions, the District Court noted that O’Neal had failed to comply with three separate court orders requiring that O’Neal and Eastern Livestock mediate their dispute. The court first ordered mediation in a May 13, 1996, scheduling order, and did so again by way of a subsequent, amended scheduling order and, finally, in an order compelling mediation. O’Neal either failed to respond to or cooperate with repeated efforts by Eastern Livestock to initiate mediation.

By way of explanation, O’Neal contends he never refused to mediate, but simply stated he would only enter mediation if all of the third-party defendants were additionally present. The fact that O’Neal would have preferred to enter mediation with the third-party defendants did not entitle him to repeatedly disregard three separate court orders that he enter mediation with Eastern Livestock. Neither is this Court persuaded by O’Neal’s argument that he was unable to participate in court-ordered mediation due to the obligations of his cattle business. Thus, we conclude ample evidence of record exists which supports the District Court’s determination that O’Neal engaged in dilatory tactics to prevent litigation of Eastern Livestock’s claims and additionally violated court orders requiring mediation in this case.

Among the sanctions authorized by Rule 16(f), M.R.Civ.P., is the entry of a default judgment against a disobedient party. See Rule 37(b)(2)(C), M.R.Civ.P. Mentioned in the text of Rule 16(f), pursuant to which the court imposed sanctions in this case, Rule 37(b)(2)(C), M.R.Civ.P. specifically authorizes sanctions in the form of “[a]n order ... dismissing the action or any part thereof, or rending a judgment by default against the disobedient party.” We have recognized that “[t]he trial judge is in the best position to know which parties callously disregard the rights of their opponents and other litigants seeking their day in court,” and that “[t]he trial judge is also in the best position to determine which sanction is the most appropriate.” Eisenmenger, 264 Mont. at 402-03, 871 P.2d at 1319 (citing Dassori v. Roy Stanley Chevrolet Co. (1986), 224 Mont. 178, 179-80, 728 P.2d 430, 431). Accordingly, the District Court was in the best position to determine which sanctions, if any, were appropriate in this case.

Based on the foregoing, we hold the District Court did not abuse its discretion in imposing sanctions against O’Neal in the form of an $18,000 default judgment on the basis of his continual delay and repeated failure to participate in court-ordered mediation.

In conclusion, we affirm the order of the District Court granting Eastern Livestock’s motion for separate trials, and affirm the District Court’s imposition of sanctions, in the form of a judgment entered in Eastern Livestock’s favor, against O’Neal.

JUSTICES HUNT, GRAY, LEAPHART and TRIEWEILER concur.


author: CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. CHARLES SCOTT WHITMER, Defendant and Appellant.
    No. 97-158.
    Submitted on Briefs August 28, 1997.
    Decided October 10, 1997.
    54 St.Rep. 1063.
    946 P.2d 137.
    285 Mont. 100.
    For Appellant: Mark McLaverty, Public Defender’s Office, Missoula.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Chris D. Tweeten, Assistant Attorney General, Helena; Robert L. Deschamps, III, County Attorney, Missoula.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The Fourth Judicial District Court, Missoula County, found Charles Scott Whitmer guilty of failing to register as a violent offender. Whitmer appeals. We reverse and remand.

We restate the issue raised on appeal as follows:

Did the Montana Legislature intend the 1995 amendments to § 46-23-504, MCA (1989), which extended the registration requirement to violent offenders, to apply retroactively to those individuals convicted of violent offenses before October 1, 1995?

BACKGROUND

Prior to July 1993, Whitmer received a suspended sentence for felony assault. Whitmer violated conditions of the suspended sentence, and following a revocation hearing held on July 13, 1993, he was remanded to the custody of the Montana Department of Corrections. When Whitmer completed his sentence on January 29, 1996, prison officials notified him, pursuant to § 46-23-503, MCA (1995), of his obligation to register as a violent offender according to § 46-23-504, MCA (1995). Whitmer did not register.

On May 10, 1996, the State of Montana filed an information charging Whitmer with failure to register as a violent offender in violation of § 46-23-507, MCA (1995). Whitmer pleaded not guilty. He moved to dismiss the charge, claiming the registration requirement was retroactive and the State had failed to notify him of his duty to report, a condition precedent of § 46-23-507, MCA(1995). The District Court denied Whitmer’s motion to dismiss.

Whitmer withdrew his not guilty plea and entered a plea of guilty to the State’s charge while also reserving the right to appeal from the court’s denial of his motion to dismiss. Whitmer was convicted of failure to register as a violent offender and received a five-year suspended sentence subject to certain conditions. This appeal followed.

DISCUSSION

Did the Montana Legislature intend the 1995 amendments to § 46-23-504, MCA (1989), which extended the registration requirement to violent offenders, to apply retroactively to those individuals convicted of violent offenses before October 1, 1995?

The District Court denied Wbitmer’s motion to dismiss, concluding that the “statutory provisions at § 46-23-501 et seq requiring the Defendant to register as a violent offender upon release from prison is not ex post facto in nature, but rather is a reasonable regulatory measure.” For the reasons discussed below, we conclude it was unnecessary for the court to reach this conclusion because the Legislature did not intend the 1995 amendments to § 46-23-504, MCA (1989), to apply retroactively.

Section 46-23-504, MCA (1995), requires a person convicted of a violent offense as defined at § 46-23-502(4), MCA (1995), upon release from prison, to register with local law enforcement officials and to provide them with information regarding the person’s planned residence. This requirement arose from amendments adopted as part of 1995 Mont. Laws, ch. 407, which became effective on October 1, 1995.

Prior to the effective date of Chapter 407, sexual offenders were required to register with local law enforcement. See § 46-23-504, MCA (1989). Whitmer was convicted of felony assault, which is a violent offense under § 46-23-502(4), MCA (1995), but not a sexual offense according to § 46-23-502(3), MCA (1989). Therefore, Whitmer had no obligation to register as a violent offender under the statutes in effect at the time he was convicted of felony assault. That obligation, if it existed, arose from the 1995 amendments to Chapter 407.

Section 1-2-109, MCA, provides: “No law contained in any of the statutes of Montana is retroactive unless expressly so declared.” In 1989, the Legislature enacted statutes which require sex offenders, upon release from custody, to register with local law enforcement. As discussed above, these provisions did not apply to Whitmer because his offense, felony assault, was not included within the class of sex offenses which triggered the registration requirement.

In 1995, the Legislature enacted Chapter 407, which added individuals convicted of a “violent offense” to those required to register. Chapter 407 was proposed as House Bill 214, which included an applicability clause providing:

Section 15. Retroactive applicability. [This act] applies retroactively, within the meaning of 1-2-109, to persons convicted of a sexual or violent offense before [the effective date of this act], as well as to persons convicted of a sexual or violent offense after [the effective date of this act], regardless of the date of the crime.

During the hearing before the House Committee on the Judiciary, a representative of the American Civil Liberties Union testified against HB 214 because he believed the retroactivity clause violated the ban against ex post facto legislation. The sponsor of HB 214 proposed an amendment deleting the retroactivity clause. The amendment passed the Committee.

A law is presumed to have prospective application and can be applied retroactively only if the intent to do so is expressly stated. Section 1-2-109, MCA. For purposes of § 1-2-109, MCA, a law is retroactive if it “takes away or impairs vested rights, acquired under existing laws, or creates a new obligation, imposes a new duty or attaches a new disability, in respect to transactions already past[.]” Butte & Superior Mining Co. v. McIntyre (1924), 71 Mont. 254, 263, 229 P. 730, 733.

We conclude that the Legislature did not intend to apply Chapter 407, which extended the registration requirement to violent offenders, to those individuals convicted of violent offenses before October 1, 1995. Therefore, Whitmer had no obligation to register with Missoula law enforcement officials after he was released from prison. The District Court erred when it denied Whitmer’s motion to dismiss.

Whitmer contends that the application of the violent offender registration requirement to him based on statutory amendments adopted after he was sentenced violates the constitutional prohibition against ex post facto legislation. We need not address this issue because, as the legislative history of Chapter 407 demonstrates, the Legislature did not intend to apply Chapter 407 to those individuals convicted of violent offenses before the law became effective on October 1, 1995.

The State of Montana as respondent in this case agrees that the registration requirement of § 46-23-504, MCA (1995), does not apply to persons who committed violent offenses prior to October 1, 1995.

This Court takes judicial notice that as part of 1997 Mont. Laws, ch. 375, the Legislature amended §§ 46-23-501 through -508, MCA (1995). The 1997 amendments contain a retroactive applicability clause similar to the one deleted from HB 214. The 1997 amendments become effective on October 1, 1997, and are not in this case before the Court.

Reversed and remanded with instructions consistent with this Opinion.

JUSTICES HUNT, TRIEWEILER, LEAPHART and REGNIER concur.


text:
    ELDON HUFFINE, Petitioner, v. MONTANA SIXTH JUDICIAL DISTRICT COURT, PARK COUNTY, Respondent.
    No. 97-474.
    Submitted August 26, 1997.
    Decided October 10, 1997.
    54 St.Rep. 1065.
    945 P.2d 927.
    285 Mont. 104.

      For Petitioner: Eldon Huffine, Pro Se, Livingston.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Helena; Hon. Frank M. Davis, District Court Judge, Dillon; Thomas G. Bowe, Assistant Attorney General, Helena; Tara DePuy, Park County Attorney, Livingston.
    For Amicus: W. D. Hutchison, Agency Legal Services Bureau, Department of Justice, Helena.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

On August 14,1997, petitioner Eldon Huffine (Huffine) filed herein a pro se petition for writ of habeas corpus, together with a writ of error, arguing that his sentence for contempt violates Montana and constitutional law. On August 26,1997, this Court granted Huffine’s petition for writ of habeas corpus and ordered his immediate release from confinement in the Park County jail. We issue this opinion to address whether the District Court erred in sentencing Huffine to a term of thirty days in jail for practicing law without a license.

Factual and Procedural Background

Huffine’s contempt charge arises out of events surrounding State of Montana ex rel. Department of Health and Environmental Sciences (DHES) v. Eugene Brue, an action filed in the Montana Sixth Judicial District Court, Park County. On January 5, 1995, the State filed a complaint and application for an injunction in the District Court alleging that Mr. Brue was operating an unlicensed and unshielded motor vehicle wrecking facility in Park County in violation of Montana law and DHES regulations. Mr. Brue filed a counterclaim against approximately thirty individuals, including several Justices of this Court, seeking not less than $1.5 million in damages for violations of his civil rights. Mr. Brue also named the Honorable Wm. Neis Swandal, the District Court judge who was presiding over the action, as a counterclaim defendant. Judge Swandal recused himself, and the Honorable Frank M. Davis assumed jurisdiction.

On March 14, 1995, Huffine filed in the District Court a notice of appearance as counsel for Mr. Brue and brief in support of the pleadings. Huffine advised the court that it should direct all further correspondence in the matter to him, “a private citizen having been designated to act as counsel by and for the Defendant Eugene Brue.” The State filed a motion to strike the notice of appearance, arguing that Mr. Brue “is now represented by a person who is not a licensed attorney, yet who holds himself out as counsel for Defendant.”

In its omnibus findings, opinion, and order issued April 26, 1995, the District Court found that Huffine is not a licensed attorney and that by filing a notice of appearance as counsel for Brue, he was practicing law without a license. The court then held that Huffine was guilty of contempt under § 37-61-210, MCA (providing that practicing law without a license is contempt of court) and ordered him to appear before the court to show cause why sanctions should not be imposed. Huffine failed to appear, and in an order filed May 23,1995, the District Court sentenced Huffine to a term of thirty days in the Park County Jail, to be suspended upon his paying a $500 fine within ten days. The District Court also issued a bench warrant for Huffine’s arrest.

On August 10, 1997, Huffine was arrested and confined to the Park County Jail. On August 14, 1997, Huffine filed petitions for a writ of habeas corpus and a writ of error in this Court, asserting that 1) Judge Frank M. Davis of the Montana Sixth Judicial District Court, Park County, had been disqualified from proceeding over the matter; 2) Huffine was denied a trial by jury in violation of his constitutional rights; and 3) the court had no jurisdiction to sentence Huffine to thirty days in jail. In its response to this Court, the District Court states that under §§ 3-1-519 and -520, MCA, it had authority to sentence Huffine to imprisonment to compel his performance of its order that he cease practicing law without a license.

Discussion

Determining whether a particular contempt proceeding is criminal or civil can be difficult, as contempts are “neither wholly civil nor altogether criminal.” Gompers v. Buck’s Stove & Range Co. (1911), 221 U.S. 418, 441, 31 S.Ct. 492, 498, 55 L.Ed. 797, 806. Still, the classification of contempt is crucial, particularly where the contemnor is sentenced to confinement, because the classification determines the procedures that the district court must follow. See Crozer-Chester Medical Center v. Moran (Penn. 1989), 560 A.2d 133, 136 (citing Dobbs, HANDBOOK ON THE LAW OF REMEDIES § 2.9 (1973)). Therefore, to determine whether the District Court properly sanctioned Huffine for his contempt, this Court must first determine whether the contempt was criminal or civil.

There is “nothing inherent in a contemptuous act or refusal to act which classifies that act as civil or criminal.” Crozer-Chester, 560 A.2d at 136 (citing In re Martorano (1975), 346 A.2d 22, 27). Rather, it is the character and purpose of the punishment which the court chooses to impose that serves to distinguish between civil and criminal contempt. Hicks ex rel. Feiock v. Feiock (1988), 485 U.S. 624, 108 S.Ct. 1423, 99 L.Ed.2d 721; Gompers, 221 U.S. at 441, 31 S.Ct. at 498. If the sanction is “singularly designed and intended to force the violator’s compliance with the court’s order,” the contempt is properly classified as civil. Harber v. Shaffer (Okla. 1988), 755 P.2d 640, 641; Gompers, 221 U.S. at 441, 31 S.Ct. at 498. However, if the court’s purpose is to punish the contemnor for a specific act done and to vindicate the authority of the corut, the contempt is criminal. Gompers, 221 U.S. at 441, 31 S.Ct. at 498.

Because a court’s intent in imposing a particular sanction may be unclear, it is necessary to look to the form of the sanction to determine the purpose for which it was imposed. Gompers, 221 U.S. at 441, 31 S.Ct. at 498. A sentence of confinement for a definite period is traditionally thought of as criminal; however, it is civil if the contemnor may secure his or her release by complying with conditions that are specified by the court. Hicks, 485 U.S. at 632, 108 S.Ct. at 1429-30. It is this ability to end the imprisonment that is the distinguishing factor and why it is often said that in a civil contempt, one carries the keys to the jailhouse in his own pocket. Gompers, 221 U.S. at 442, 31 S.Ct. at 498; Crozer-Chester, 560 A.2d at 137. On the other hand, when “a jail sentence is imposed and the contemnor is given no opportunity in the sentencing order for immediate release by [performing] an act which is within his power to accomplish,” the contempt is criminal. Hendershot v. Hendershot (W.Va. 1980), 263 S.E.2d 90, 93.

In this case, the District Court found Huffine in contempt for purporting to act on behalf of and as counsel for Mr. Brue. We agree that Huffine’s practicing law without a license is contempt under § 37-61-210, MCA. See also § 3-l-501(f), MCA (stating that “assuming to be an officer, attorney, or counsel of a court and acting as such without authority” is contempt). Upon being adjudged guilty of contempt, a person may be fined “not exceeding $500 or he many be imprisoned not exceeding 5 days, or both.” Section 3-1-519, MCA (“Punishment”). Alternatively, under § 3-1-520, MCA, the contemnor may be sentenced to imprisonment to compel performance of an act which is within his power to perform.

The District Court states that it imposed this sentence “pursuant to §§ 3-1-519 and -520, MCA, with emphasis on the ‘imprisonment to compel performance provision.”’ We determine, however, that the two statutes provide exclusive sanctions for contempt and may not be imposed together. If, as the District Court purports, it was seeking to compel Huffine’s performance of an act, it must proceed under § 3-1-520, MCA (“Imprisonment to compel performance”). Thus, we only address the legality of and proper procedure for imposing a sentence under § 3-1-520, MCA. Because the District Court did not purport to impose a sentence of confinement for a definite period not exceeding five days under § 3-1-519, MCA, we need not address that statute.

The District Court sentenced Huffine to thirty days in jail or a fine of $500 to be paid within ten days of sentencing. The form of this sanction, confinement for a definite period or payment of a set fine, conflicts with the purpose the District Court sought to accomplish, compliance with its order. Section 3-1-520, MCA, states: “When the contempt consists in the omission to perform an act which is yet in the power of the person to perform, he may be imprisoned until he shall have performed it. In that case, the act must be specified in the warrant of commitment.” This statute envisions a sentence of imprisonment “singularly designed and intended to force the violator’s compliance with the court’s order.” Harber, 755 P.2d at 641. Under § 3-1-520, MCA, performance of the act specified by the district court in the warrant of commitment is the contemnor’s key to the jailhouse.

While the sentencing order appears to provide Huffine with a key, payment of a $500 fine, this is not the type of key envisioned by the Supreme Court. See Hicks, 485 U.S. at 632, 108 S.Ct. at 1429-30. Payment of a fine is not the act which the court seeks to compel the contemnor to perform. Rather, it is an alternative sanction, one which could also be classified as criminal if the contemnor is given no opportunity to perform an act to avoid paying the fine. Hicks, 485 U.S. at 632, 108 S.Ct. at 1429-30. In this case, neither the order nor the bench warrant mention any affirmative act that Huffine could perform to cure the contempt and secure his release from jail or excuse him from paying the $500 fine. The U.S. Supreme Court has held:

If the sentence is limited to imprisonment for a definite period, the defendant is furnished no key, and he cannot shorten the term by promising not to repeat the offense. Such imprisonment operates, not as a remedy coercive in its nature, but solely as punishment for the completed act of disobedience.

Gompers, 441 U.S. at 442-43, 31 S.Ct. at 498. See also Hicks, 485 U.S. at 632, 108 S.Ct. at 1429-30 (holding that any sentence of confinement that is for a determinate period of time is criminal); Ex Parte (Ala. 1955), 83 So.2d 241 (holding that when a sentence is for a definite period of time, the decree is a punishment for what has been done). Thus, while the District Court purports to have imposed this sentence to compel performance of an act, we determine that, in reality, the sentence of thirty days of confinement was to punish for past acts and, therefore, that Huffine’s contempt proceeding is properly characterized as criminal.

In Montana, criminal contempt of court is proscribed at § 45-7-309, MCA. Prosecution for criminal contempt must be carried out pursuant to the procedures set forth in Title 46, MCA, to ensure that criminal penalties are not imposed on someone who has not been afforded the proper protections. In this case, the District Court erred by imposing a punitive, criminal sentence on Huffine where no charges had been brought under § 45-7-309, MCA, and where Huffine was not afforded the due process that he is guaranteed by the state and federal constitutions.

The power to sentence a contemnor to confinement, thus depriving him of his liberty, is one that must be exercised with the utmost of caution. First, in order to properly characterize the contempt proceeding as criminal or civil, the district court must determine the purpose (to compel performance or to punish) it seeks to further by imposition of the sanction. Then, if the court’s design is to impose a coercive sentence of confinement, it may proceed under the civil provision of § 3-1-520, MCA, by clearly stating in the sentencing order, an act (1) within the power of the contemnor to perform and (2) performance of which will secure his release. Only where criminal contempt charges are brought under § 45-7-309, MCA, and appropriate procedures followed, may a contemnor be sentenced to confinement for a definite period. Parenthetically, we recognize that the plain language of § 3-1-519, MCA, purports to allow a civil penalty of confinement for a definite term of up to five days. However, since the sentence in this case was imposed pursuant to § 3-1-520, MCA, and not § 3-1-519, MCA, we do not address the validity of § 3-1-519 at this time.

The contempt that is the subject of this opinion is based solely on Huffine’s filing of a notice of appearance as counsel for Mr. Brue on March 14, 1995. Because Huffine has served seventeen days in the Park County Jail, we hold that the contempt charge for his filing of this particular document has been purged. However, Huffine has continued to file petitions in this Court on behalf of Mr. Brue in the matter of State of Montana ex rel. DHES v. Brue. In an Order issued September 30, 1997, we denied Huffine’s petition for extraordinary relief, holding that he is not a real party in interest to the action. Order of the Montana Supreme Court, No. 97-540 (September 30, 1997). We also noted that by filing documents on behalf of Brue, Huffine again engaged in the unlawful practice of law. Although we did not hold him in contempt, we ordered that if he attempts to file any more documents or motions with this Court on behalf of Brue, he will be held in contempt.

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


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. BILL GENE THOMAS, Defendant and Appellant.
    No. 96-470.
    Submitted on Briefs July 23, 1997.
    Decided October 16, 1997.
    54 St.Rep. 1068.
    946 P.2d 140.
    285 Mont. 112.

      For Appellant: Vernon E. Woodward, Hendrickson, Everson, Noenning and Woodward, Billings.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Elizabeth Griffing, Assistant Attorney General, Helena; Robert Eddleman, County Attorney, Columbus.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Bill Gene Thomas pled guilty to deliberate homicide. He appeals the denial of his petition for postconviction relief by the Thirteenth Judicial District Court, Stillwater County. We affirm.

The issues are whether Thomas was denied effective assistance of counsel and whether his plea of guilty was knowingly and voluntarily made.

On January 23, 1993, the body of Donald Verly was found lying face down in a pile of dirt and snow on his ranch north of Rapelje, Montana. Verly had been shot twice, once in the chest and once under his left eye.

Verly’s Dodge pickup truck was missing from his ranch. Within days, investigating officers located the vehicle in a motel parking lot in Billings, Montana. The motel manager told the officers that a Bill Thomas had been registered in Room 7 at the motel for about a week. In December 1992, the Stillwater County Sheriff had removed ranch hand Bill Thomas from Verly’s ranch after Verly complained that Thomas had threatened to kill him.

Billings police also received a Crimestopper’s report that Thomas had tried to sell the informant two rifles and a .357 magnum pistol, stating that the owner would not be needing them because “he had a major coronary.” At the Verly ranch, authorities recovered empty boxes for a Remington rifle and a .357 magnum pistol.

Thomas was arrested. In his possession, Billings police found a bank cash card belonging to Verly. In the Dodge pickup, they found ammunition, a loaded Remington rifle, and a bag labeled with Thomas’s name containing burglary tools. They also recovered, from the home of Thomas’s acquaintance, another rifle and a .357 magnum pistol which the acquaintance said Thomas had left there. Weapons records from the federal Bureau of Alcohol, Tobacco, and Firearms confirmed that Verly had purchased the .357 magnum pistol and one of the rifles in December 1992.

Carol Lynne Bear Cub, a friend of Thomas, gave Stillwater County authorities a detailed statement. She reported that she and Keith Fuller had given Thomas a ride out of Billings on the evening of January 19, 1993, so that the two men could burglarize a ranch. According to Bear Cub, Thomas had a gun with him. After they completed the burglary at about 2 a.m., Bear Cub and Fuller left the ranch to drive back to Billings. Thomas left on foot to, as Bear Cub understood, walk five or six miles in the cold snowy night to another ranch for the purpose of having a “little talk” with his “friend.”

Bear Cub further related that Thomas showed up at her apartment in Billings the next day in an ugly, dented Dodge truck. She said he told her that he had committed a homicide because he had to “pay the guy back for being a bastard” and “take him out of his own misery.” Thomas had previously complained to Bear Cub about a former ranch employer who owed him money, and Bear Cub understood that the rancher was the victim of the homicide. According to Bear Cub, Thomas told her that he waited for the rancher to come out the door of his house in the morning and, when he did, shot him “through the heart.” Then he walked up to the rancher as he lay on the ground and shot him in the eye. Thomas told Bear Cub that he put the body where it would not be found for awhile.

On February 1, 1993, the District Court appointed John Mohr to represent Thomas. Mohr read the police reports and the autopsy report. Thomas admitted to Mohr that he had killed Verly, shooting him first in the chest, and then, as Verly lay on the ground, shooting him again in the eye. Thomas gave Mohr essentially the same facts of the crime as Bear Cub had relayed, which were also consistent with the police reports. Thomas told Mohr that he first disposed of Verly’s body in a shed but that he later returned to the ranch and used a tractor to move the body to the spot where it was eventually discovered. Thomas also told Mohr that after he killed Verly and again on his return trip to the ranch, he stole items belonging to Verly to cover a $300 debt Verly owed him.

The State advised Mohr that it would seek imposition of the death penalty based on the aggravating factor of lying in wait for the victim, under § 46-18-303(4), MCA. Alternatively, the State advised Mohr that it would seek a term of life imprisonment without parole.

On March 10,1993, on Mohr’s advice, Thomas pled guilty to deliberate homicide. The State recommended that Thomas be sentenced to 100 years in the Montana State Prison with ten additional years for use of a dangerous weapon. At sentencing, the District Court added a special restriction making Thomas ineligible for parole for thirty years.

Five months later, Thomas filed with the District Court a pro se petition for postconviction relief and moved for appointment of new defense counsel. The new attorney appointed to represent him filed an amended petition for postconviction relief alleging that Thomas’s plea was involuntary because he had not been advised of the possibility of a parole restriction and because Mohr rendered him ineffective assistance of counsel. The amended petition claimed that Mohr did not independently or adequately investigate the facts of the case or imposition of the death penalty and did not properly advise Thomas regardingthe death penalty, parole restrictions, or mitigatingfactors.

Mohr and Thomas both testified at the hearing on the amended petition for postconviction relief. Sandy Selvey, a Yellowstone County public defender, testified as an expert on behalf of Thomas. Gary Wilcox, another Yellowstone County public defender, testified as an expert on behalf of the State. Following the hearing, the court entered detailed findings and conclusions and a judgment denying Thomas postconviction relief.

Issue 1

Was Thomas denied effective assistance of counsel?

This Court’s general standard of review of a district court’s denial of postconviction relief is whether substantial evidence supports the district court’s findings and whether the court’s conclusions of law are correct. Brown v. State (1996), 277 Mont. 430, 434, 922 P.2d 1146, 1148.

Both the Sixth Amendment to the United States Constitution and Article II, Section 24, of the Montana Constitution guarantee a criminal defendant the right to assistance of counsel for the person’s defense. As in other cases involving issues of ineffective assistance of counsel, we use a two-pronged standard of review in cases which have resulted in guilty pleas: whether counsel’s performance fell within the range of competence reasonably demanded in light of the Sixth Amendment, and, if not, whether counsel’s constitutionally ineffective performance affected the outcome of the plea process. See State v. Mahoney (1994), 264 Mont. 89, 101, 870 P.2d 65, 72-73.

On appeal, Thomas argues that he was denied effective assistance of counsel in several respects. Mohr met with him only four times before the guilty plea. Thomas maintains that Mohr did not investigate the case adequately in that he did not conduct an independent investigation (did not hire an investigator; did not travel to the crime scene; did not speak to Bear Cub, but only read the statement she gave to the police). Thomas also contends that Mohr should have investigated whether his mental condition represented a mitigating circumstance as to the death penalty.

Although Thomas points out that this was the first deliberate homicide case Mohr had ever defended, Mohr had been licensed to practice law in Montana for over fifteen years when he was appointed to represent Thomas. He had handled the majority of the criminal defense work for the City of Laurel, the City of Columbus, and Stillwater County for almost ten years. Mohr estimated that he defended approximately fifty criminal cases each year, with about half of those being felonies.

The standard for determining a criminal defense counsel’s duty to investigate was described in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674:

The reasonableness of counsels actions may be determined or substantially influenced by the defendant’s own statements or actions. Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsels failure to pursue those investigations may not later be challenged as unreasonable.

Strickland, 466 U.S. at 691, 104 S.Ct. at 2066.

In this case, the chief evidence supportive of a self-defense theory was Thomas’s own statement that Verly carried a gun when he came out of his house on the morning he was killed. Thomas had not related this to Bear Cub. Nor was any corroboration available for this statement, because Thomas had moved the body and no gun had been found with it. Moreover, Mohr noticed that each time Thomas described the events, “you would see this anger and sort of aggression about Mr. Verly.” Mohr testified that he was concerned that Thomas would appear aggressive if he testified, and that he felt Thomas’s own testimony would be detrimental to a self-defense case.

The evidence contradicting a self-defense theory, on the other hand, was formidable. According to Thomas’s own statement, when he shot Verly the second time Verly was lying on the ground immobilized from the first shot. Thomas did not attempt to contact authorities after the shooting, as would be consistent with a shooting in self-defense. Instead, by his own admission, he smoked a cigarette, burglarized Verly’s home, and then stole Verly’s truck and left the ranch. Thomas admitted that he and his friend Fuller later returned to the ranch and burglarized the house a second time, when Thomas also moved and tried to conceal Verly’s body.

Mohr testified that he recognized that Verly’s character would be important if it could have been considered a contributing factor to the homicide. Some witness statements he reviewed indicated that Verly was eccentric and had mood swings. However, in light of Thomas’s own admission that he went onto Verly’s property during the night and waited outside Verly’s house with a gun until Verly came out in the morning, Mohr did not believe that Verly’s character could be considered a direct cause of the homicide.

Mohr testified that he had reviewed the statutes relating to mitigated deliberate homicide and was aware of the defendant’s burden, in establishing mitigation, to show that he was under the influence of extreme mental or emotional distress. Mohr knew that Thomas was angry with Verly for failing to pay him $300 in wages. He did not believe, however, that a jury would agree with a mental or emotional distress defense based on that factor, especially when Thomas went to Verly’s house and waited for him to come out.

Mohr testified that prior to bringing the plea proposal to Thomas’s attention, he felt there were “[n]o holes to be filled with any investigation.” Thomas’s statements to Mohr concerning the crime had been consistent with the discovery material and witness statements. Mohr interviewed several witnesses, such as a person who had helped Thomas out of the ditch as he drove Verly’s truck away from the crime scene. The court had allowed Bear Cub’s deposition to be taken, which could have been used at trial if Bear Cub was not present, or to rebut her testimony at trial if it was different from her initial statements. Mohr believed he had all the facts pertinent to handle the case. Thomas did not ask Mohr to investigate any other issues or to hire an investigator.

Defense counsel’s duty is “to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. A decision not to investigate must be assessed for reasonableness in light of all of the circumstances of the case, “applying a heavy measure of deference to counsel’s judgments.” Strickland, 466 U.S. at 691, 104 S.Ct. at 2066.

Thomas suggests that Mohr was drastically ineffective in not personally interviewing Bear Cub. However, Thomas himself confirmed that the substance of Bear Cub’s statement was essentially correct. His main quarrel with Bear Cub’s statement was that he had told Fuller, not Bear Cub, about the homicide; he claimed he had not personally discussed the homicide with Bear Cub. Thomas nonetheless admitted that the substance of what he told Fuller was the same as the story related by Bear Cub.

“A claim of failure to interview a witness may sound impressive in the abstract, but it cannot establish ineffective assistance when the person’s account is otherwise fairly known to defense counsel.” United States v. Decoster (D.C. Cir. 1976), 624 F.2d 196, 209. Here, Mohr had reviewed the written statements of Fuller, Bear Cub, and all other potential witnesses. Thomas himself had confirmed the accuracy of these reports. There is no indication that there were any witnesses who could have provided exculpatory information. There is no indication that a personal interview of Bear Cub was necessary to effective representation of Thomas.

Mohr testified that he did not request a psychological evaluation of Thomas because of Thomas’s vehement objections to the idea and his own observations of Thomas, which led him to believe that Thomas was not suffering from a mental disease or defect. Nothing of record in Thomas’s history or demeanor indicates that he suffered from a mental disease or defect at the time of the crime. Based on his answers to Mohr’s inquiries, Thomas was not interested in pursuing such a defense. Mohr’s decision not to request a mental examination of Thomas is supported by the absence of evidence in the record to support a theory of mental disease or defect. See State v. Long (1986), 223 Mont. 502, 726 P.2d 1364.

Thomas further contended that he would not have signed the plea agreement had Mohr not “badgered” him into doing so. The court found that Thomas’s testimony that Mohr pressured him into signing the plea agreement was not credible. Thomas admitted that he never asked for a change of counsel. He acknowledged satisfaction with Mohr’s services twice in writing, and orally in response to the court’s inquiry at the change of plea hearing.

Determinations of credibility of witnesses are within the province of the finder of fact. State v. Ahmed (1996), 278 Mont. 200, 212, 924 P.2d 679, 686, cert. denied, 117 S.Ct. 748, 136 L.Ed.2d 686 (1997). The District Court found Mohr’s testimony at the hearing on the postconviction relief petition credible and Thomas’s testimony incredible. Thomas contradicted himself in several respects. For example, he testified that he had believed the plea agreement was completely binding on not only himself, but also on the court. This testimony contradicted the signed provisions of the plea agreement. It was also contrary to Thomas’s oral statements on this subject at the plea hearing, when he told the court that he understood that the court could still impose whatever sentence it felt was appropriate.

Mohr certified that he left the ultimate decision on whether to go to trial up to Thomas. He testified that Thomas agreed to the plea agreement, telling Mohr that he had committed the crime and just wanted to start serving his time. Mohr further testified that Thomas explained he did not think he would live another seventeen years (the minimum time to be served under the plea agreement), because heart problems ran in his family.

The State’s expert, Wilcox, testified that under the circumstances it was reasonable for Mohr to conclude that no psychological evaluation of Thomas was warranted, that Thomas was able to assist in his own defense, and that he was capable of forming the requisite mental state for the offense charged. Wilcox also opined that Mohr’s representation of Thomas was adequate.

After reviewing the extensive evidence presented to the District Court, we conclude that the court did not err in determining that counsel’s performance fell within the range of competence reasonably demanded under the Sixth Amendment. The court’s comprehensive findings of fact are supported by substantial credible evidence, and its conclusions of law are correct. Because Mohr’s representation of Thomas was effective, we do not address whether Thomas suffered prejudice from ineffective representation.

Issue 2

Was Thomas’s guilty plea knowingly and voluntarily made?

Thomas maintains that his guilty plea was unknowingly and involuntarily entered because Mohr did not advise him of the possibility that the court might restrict his parole eligibility. Thomas argues that this failure to advise him violated § 46-12-210(1), MCA, which requires that before a plea of guilty is accepted, the court must determine that the criminal defendant understands “the maximum penalty provided by law, including the effect of any penalty enhancement provision or special parole restriction.”

The District Court restricted Thomas’s parole pursuant to its authority under § 46-18-202(2), MCA:

Whenever the district court imposes a sentence of imprisonment in the state prison for a term exceeding 1 year, the court may also impose the restriction that the defendant is ineligible for parole and participation in the supervised release program while serving that term. If the restriction is to be imposed, the court shall state the reasons for it in writing. If the court finds that the restriction is necessary for the protection of society, it shall impose the restriction as part of the sentence and the judgment must contain a statement of the reasons for the restriction.

In its sentencing order, the court set forth as reasons for the parole restriction Thomas’s criminal history of felony convictions for burglary, armed robbery, escape and assault, his history of “no demonstrable positive response to community supervision,” and that he had spent the larger part of the past seventeen years in prison. The court stated, “It is clear ... the defendant cannot conform to the norms of society and his release into the community could well lead to recurrent violence which makes the defendant a significant danger to other members of society.”

This issue requires an interpretation of the meaning of “special parole restriction” as that phrase is used in § 46-12-210(1), MCA. In construing a statute, the statute must be read as a whole and its terms must not be isolated from the context in which the legislature has used them. McClanathan v. Smith (1980), 186 Mont. 56, 61, 606 P.2d 507, 510. When the phrase “special parole restriction” is read in the context of § 46-12-210(1), MCA, as a whole, “the maximum penalty provided by law, including the effect of any penalty enhancement provision or special parole restriction,” the phrasing of the statute indicates that the parole restriction must be one that is provided by law, and does not refer to discretionary parole restrictions which the court might impose upon reviewing the presentence investigation. Such a construction is reasonable because, prior to sentencing, and when a district court is not bound by the terms of a parole agreement, it is impossible to know what restrictions the court might impose, other than those specifically defined by statute.

The legislative history of § 46-12-210, MCA, buttresses this interpretation. The statute was significantly revised in 1991. The Commission Comments concerning that revision state:

This statute is essentially a restatement of Rule 11(c) of the Federal Rules of Criminal Procedure. When appropriate, some changes have been made to accommodate Montana statutory and case law decisions. The statute presents a more concise and coherent approach to the plea colloquy.

Contrary to Thomas’s assertions, there is no indication that the Legislature intended to overrule this Court’s opinion in State v. Buckman (1989), 236 Mont. 37, 43, 768 P.2d 1361, 1365, that the statutes “do not require the District Court to advise the defendant of any possibility of limitations of his parole eligibility.”

Further, the Commission Comment that § 46-12-210, MCA, is a restatement of Rule 11(c), Fed.R.Crim.P., confirms that the court and attorney are obligated only to inform a defendant of statutorily-defined “special parole restrictions.” The phrase “special parole term” in Rule 11(c), Fed.R.Crim.P., has been uniformly construed to mean a term as defined by law, not “all conceivable consequences such as when [a person] may be considered for parole.” United States v. Sanclemente-Bejarano (9th Cir. 1988), 861 F.2d 206, 209.

In Hill v. Lockhart (1985), 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203, the United States Supreme Court verified that Rule 11(c), Fed.R.Crim.R, does not require advice on parole eligibility. The Court stated:

We have never held that the United States Constitution requires the State to furnish a defendant with information about parole eligibility in order for the defendant’s plea of guilty to be voluntary, and indeed such a constitutional requirement would be inconsistent with the current rules of procedure governing entry of guilty pleas in the federal courts.

Hill, 474 U.S. at 56, 106 S.Ct. at 369.

Thomas suggests that the Hill decision on remand indicates that defense counsel bears a duty to inform a criminal defendant of a possible parole restriction in order to have a voluntary and knowing guilty plea. However, the facts found on remand in Hill are significantly different from the facts in this case. In Hill, the court found that Hill had explicitly asked his defense counsel about the parole system in Arkansas and had made it clear to his counsel that timing of his parole eligibility was the dispositive issue for him in accepting or rejecting the plea bargain. Hill v. Lockhart (8th Cir. 1990), 894 F.2d 1009, 1010. Hill told his attorney he would not accept the plea bargain unless he would be eligible for parole in less than seven years. The court found that Hill’s attorney actually gave Hill incorrect advice which directly affected his decision to plead guilty, by telling him that he would be eligible for parole after serving one-third of his sentence, when Arkansas statutes provided that he must serve one-half of his sentence. Hill, 894 F.2d at 1010.

In contrast, there is nothing to indicate that Thomas was either misadvised or given incorrect information regarding Montana’s statutory parole requirements. He was made aware that under the proposed plea agreement he would be eligible for parole in seventeen and a half years. The record establishes that Thomas also knew that the District Court was not bound by the terms of the plea agreement. Most importantly, there is nothing of record to indicate that parole eligibility was a concern for Thomas when he agreed to the plea bargain. As Mohr testified, Thomas told him he wanted to plead guilty and begin serving his time. In this situation, Thomas cannot credibly claim that the additional parole restriction would have affected his decision to plead guilty.

Affirmed.

JUSTICES LEAPHART, HUNT, REGNIER and TRIEWEILER concur.