author: JUSTICE LEAPHART JUSTICE TRIEWEILER JUSTICE GRAY,

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. BRADLEY J. BELL, Defendant and Respondent.
    No. 96-001.
    Submitted on Briefs May 30, 1996.
    Decided August 22, 1996.
    53 St.Rep. 792.
    277 Mont. 482.
    923 P.2d 524.

      For Appellant: Hon. Joseph P. Mazurek, Attorney General, John Paulson, Ass’t Attorney General, Helena; Christine A. Cooke, Big Horn County Attorney, Curtis L. Bevolden, Deputy County Attorney, Hardin.
    For Respondent: James L. Vogel, Attorney at Law, Hardin.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Pursuant to § 46-20-103(2)(b), MCA, the State appeals from the Big Horn County, Thirteenth Judicial District Court’s Order modifying the jury verdict of defendant Bradley J. Bell (Bell). In response to Bell’s motion for judgment notwithstanding the verdict or new trial, the District Court changed the verdict of guilty of criminal endangerment to a verdict of guilty of reckless driving. We reverse.

The issue on appeal is:

Whether the District Court erred in concluding that identification of a particular victim is an element of the offense of criminal endangerment.

BACKGROUND

In the mid-morning hours of September 21,1994, Big Horn County Deputy Sheriff Gary Seder went to Bell’s place of business, an auto shop, in Hardin, Montana, to investigate a stolen vehicle report. Bell denied Deputy Seder permission to search his place of business. Deputy Seder then went to Bell’s residence in Hardin to further investigate. Bell, and his passenger Carl Venne, followed Deputy Seder to the house in Bell’s yellow pickup truck. After an altercation with Deputy Seder outside the house, Bell returned to the truck where Venne was still sitting in the passenger seat. Deputy Seder approached the truck and opened the driver’s door. Deputy Seder had one hand on Bell’s arm and the other on the truck’s door when Bell accelerated and sped away. Deputy Seder was thrown back by the accelerating truck but was not hurt. Deputy Seder then pursued Bell in his patrol car, flashing the emergency lights and using the siren. Bell proceeded down Custer Avenue in Hardin at speeds between 50 and 80 mph. Bell did not stop at a stop sign and did not slow for a yield sign. Custer Avenue is a narrow city street. Bell’s route took him past homes, churches, a library, and a grocery store. Bell turned off Custer Avenue onto Fourth Street, made a wrong way entry into a parking lot and stopped in front of the sheriff’s office at the Big Horn County Courthouse.

Bell was charged by information with two counts of criminal endangerment in violation of § 45-5-207, MCA, and one count of criminal possession of dangerous drugs in violation of § 45-9-102(2), MCA. The first count of criminal endangerment involved Bell’s speeding away from Deputy Seder while Seder was holding on to Bell and the pickup door. The second count of criminal endangerment involved Bell’s high speed drive through Hardin. Bell pled not guilty to the three charges.

At trial, Deputy Seder testified that he saw two or three people standing on the curb in front of the grocery store as he pursued Bell but that he did not see anyone on the roadway. Deputy Seder also testified that he saw a vehicle stopped at the intersection with the yield sign at Custer Avenue and Fourth Street. After the two-day trial, the jury found Bell not guilty on the first count of criminal endangerment, guilty on the second count of criminal endangerment, and guilty on the count of criminal possession of dangerous drugs.

Subsequently, Bell moved the court for judgment notwithstanding the verdict or new trial. In response, the court ordered that the jury’s guilty verdict on count two of felony criminal endangerment be set aside and replaced with a guilty verdict for the offense of misdemeanor reckless driving. The court changed the verdict because it determined that the State had not proven an element of criminal endangerment. The court stated “[n]o evidence was presented by the prosecution indicating that an identified person had been placed in substantial risk of death or serious bodily injury by the defendant’s actions.” The State, pursuant to § 46-20-103(2)(b), MCA, appeals the District Court’s modification of the jury verdict.

STANDARD OF REVIEW

As we stated in State v. Mummey (1994), 264 Mont. 272, 276, 871 P.2d 868, 870, the statutes governing criminal procedure do not provide for judgment notwithstanding the verdict. However, we also noted that:

[Section] 46-16-702, MCA, permits a defendant to move for a new trial following a verdict of guilty, and under this statute, the district court may modify or change the verdict by finding the defendant guilty of a lesser included offense or finding the defendant not guilty.

Mummey, 871 P.2d at 870. As in Mummey, Bell’s motion for judgment notwithstanding the verdict will be deemed a motion for a new trial made under § 46-16-702, MCA. Our standard of review of a district court’s ruling on a motion for new trial is whether the district court abused its discretion. Mummey, 871 P.2d at 870.

The State, however, argues that this case presents a question of statutory interpretation which should be reviewed as a question of law. State v. Christensen (1994), 265 Mont. 374, 375, 877 P.2d 468, 468-69. We agree. The District Court changed Bell’s verdict based on its interpretation of the phrase “substantial risk of death or serious bodily injury to another” found in the criminal endangerment statute, § 45-5-207, MCA. The court based its interpretation of the phrase on the statute’s legislative history, our decision in State v. Brown (1995), 270 Mont. 454, 893 P.2d 320, and an Arizona decision pertaining to a similar statute, State v. Morgan (Ariz. 1981), 625 P.2d 951. Thus, we determine whether the District Court’s interpretation of law is correct. Christensen, 877 P.2d at 469.

DISCUSSION

Whether the District Court erred in concluding that identification of a particular victim is an element of the offense of criminal endangerment.

The District Court concluded that because “[n]o evidence was presented by the prosecution indicating that an identified person had been placed in substantial risk of death or serious bodily injury by the defendant’s actions,” criminal endangerment had not been proven. Section 45-5-207, MCA, provides:

(1) A person who knowingly engages in conduct that creates a substantial risk of death or serious bodily injury to another commits the offense of criminal endangerment. This conduct includes but is not limited to knowingly placing in a tree, log, or any other wood any steel, iron, ceramic, or other substance for the purpose of damaging a saw or other wood harvesting, processing, or manufacturing equipment.

The second sentence of § 45-5-207, MCA, sets out an example of criminal endangerment in which there is no identified victim. Someone who knowingly places a “spike” in a tree creates a risk to an unknown, unidentified logger or mill worker. Much like driving 80 mph down a city street, “spiking” has the potential of endangering a person who happens to come into contact with the dangerous object. In a prosecution for spiking trees, it is sufficient that the State prove that the spike was “placed” for the purpose of damaging a saw. It is not necessary that the State prove that the tree was actually sawed or that an identifiable person was endangered or injured by the spike. Additionally, the criminal endangerment statute does not require proof that the defendant intended to injure another. Rather, it requires that the State prove that the defendant “knowingly” engaged in conduct and that the conduct created a substantial risk of death or serious bodily injury to another.

Recently, in State v. Smaage (1996), [276 Mont. 94], 915 P.2d 192, we held that Smaage had been correctly charged under the criminal endangerment statute rather than under the DUI statutes. Smaage was arrested for driving recklessly in downtown Helena, weaving into the oncoming lane of traffic, and swerving down the street in the early morning hours. At the county jail, Smaage’s blood alcohol content tested at .250, far over the legal limit of. 10. On appeal, Smaage raised the issue of whether he should have been charged under the more specific DUI statutes rather than the more general criminal endangerment statute. Although Smaage raised a different issue, much of the discussion in Smaage is relevant to the instant case. In Smaage, we determined that:

[t]he presence of other people on the streets down which Smaage weaved the Buick — a potential lethal missile in the hands of a driver with a .250 blood alcohol content — supports a finding that Smaage engaged in conduct creating a substantial risk of death or serious bodily injury to another. We conclude that the facts support a charge of criminal endangerment.

915 P.2d at 195.

Additionally, in Smaage, we looked at the legislative history of § 45-5-207, MCA, and quoted the Senate Judiciary Committee minutes as follows:

Senator Yellowtail asked if a person drinks a case of beer and gets into a car, is that person guilty of criminal endangerment or is it negligence [sic] endangerment. Senator Halligan said an [sic] prosecuting attorney would charge him with the highest possible charge that they can, which is criminal endangerment.

915 P.2d at 194. The legislative history reveals that the legislature envisioned including drivers of cars within the purview of the criminal endangerment statute. Thus, Smaage establishes that a person who knowingly drives a car in such a manner that he creates a substantial risk of death or serious bodily injury to another, even if the “other” be an unidentified person on the street, can be guilty of criminal endangerment.

Our decision in State v. Brown specifically addresses the question of whether a potential victim must be identified in order for a defendant to be found guilty of criminal endangerment. Brown, 893 P.2d 320. In the instant case, the District Court based its change of verdict, in part, on Brown. In Brown, the defendant fired several gunshots from his vehicle while traveling northbound from Missoula, Montana, on Highway 93. Janet Hatt was driving in front of Brown and saw him fire the shots. Although Brown was not aiming at her, Hatt was frightened for herself and her daughters who were also in her car. Shortly after the shots were fired, Hatt reported the incident and the police arrested Brown. Brown was charged with criminal endangerment. The jury acquitted him of this charge and instead found him guilty of negligent endangerment. Brown, 893 P.2d at 321.

Section 45-5-208(1), MCA, defines negligent endangerment:

A person who negligently engages in conduct that creates a substantial risk of death or serious bodily injury to another commits the offense of negligent endangerment. [Emphasis added.]

The italicized portion of the negligent endangerment statute is the same as the phrase at issue in the present case from the criminal endangerment statute. In Brown, we recognized the similarity of the statutes and we looked to the legislature’s intent in passing § 45-5-207, MCA, the criminal endangerment statute: “The intent was to ‘plug a hole in the criminal law’ and address conduct such as placing poison into aspirin in a store.” Brown, 893 P.2d at 322 (citing Minutes of the Montana House Judiciary Committee, February 5, 1987). As with spiking trees, if, before anyone was actually poisoned by that aspirin, a defendant was prosecuted for placing poisoned aspirin in a store, it would be impossible to identify a specific person put at risk by the defendant’s conduct.

Brown moved for a directed verdict arguing that negligent endangerment requires proof of a substantial risk of death or serious bodily injury to an identified individual. Brown, 893 P.2d at 322. Brown contended that the State was required to prove that specific identified persons were put at risk by his conduct. We rejected his “identified individual” argument which would require proof that identified individuals were put at risk of death or serious bodily injury. Rather, we held that the State had presented sufficient evidence of a substantial risk of death or serious injury to another by proving that there were several homes along the highway and that there were unidentified passengers in a car pulled over on the side of the road. Additionally, we concluded that a trier of fact could have found that the shots fired by Brown placed Hatt and her daughters at risk. Brown, 893 P.2d at 322.

In interpreting Brown, the District Court concluded that since Hatt was an identifiable potential victim, the Brown decision does not stand for the proposition that the State need not prove that there was an identifiable victim in order to convict a defendant of criminal endangerment. We take this opportunity to clarify our holding in Brown. Although Brown involved both unidentified and identified potential victims, we now hold that no specific victim need be identified to find a defendant guilty of criminal endangerment. Given the clear language of the statute which specifically includes conduct (tree spiking) involving unidentified victims, the legislative history which provides examples of drunk drivers and poisoned aspirin, neither of which necessarily require identified victims, and our holdings in Smaage and Brown, we hold that the District Court erred in concluding that the identification of a particular victim is an element of the offense of criminal endangerment.

Justice Trieweiler’s dissent, relying on Bell’s self-serving, after-the-fact assertions that his car was in good mechanical condition, that he was completely in control and that no one was in danger, expresses abhorrence at the proposition that a person can be guilty of a felony “for nothing more than driving too fast.” Not surprisingly, our system of justice requires that the jury, not the accused, determines whether he violated the law; that is, whether his conduct created a substantial risk of death or serious bodily injury. Bell’s contention that no one was in danger because he was “in control” is about as compelling as having someone shoot a rifle into a moving passenger train and downplay the significance of his conduct by arguing that his rifle is in good condition, that he is a good shot, he did nothing more than shoot at the baggage car and the police could not identify who, if anyone, was in the train or the baggage car at the time.

Although Bell may have had no intent to injure anyone, he knowingly drove down a city street at up to 80 mph. The fortuitous circumstance that he did not actually harm anyone or have any near misses is irrelevant. His driving down a city street at excessive speed created a risk of death or serious bodily injury to unnamed, unidentifiable people.

We note that not all speeding violations necessarily rise to the level of criminal endangerment. However, in situations such as the instant case, we hold that where a person drives a car at speeds up to 80 mph through occupied city streets, ignoring traffic signs, in the middle of the morning, that person creates a substantial risk of death or serious bodily injury to another, thus committing the offense of criminal endangerment.

Reversed and remanded for reinstatement of the verdict of guilty of criminal endangerment and resentencing in accordance with that verdict.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON and ERDMANN concur.

JUSTICE TRIEWEILER

dissenting

I dissent from the majority opinion which transforms anything but the most minor of traffic offenses to a felony punishable by a fine of up to $50,000 and imprisonment for a period of up to ten years. Surely as a result of this decision criminal endangerment has become Montana’s “one size fits all” crime of choice for zealous prosecutors.

The circumstances which led to Bradley Bell’s conviction of a serious felony are quite remarkable. He drove his vehicle which was in good mechanical condition directly from his house to the sheriff’s office on a street where he had a clear field of vision with no obstructions to his line of sight. There were no other people or cars on the road. There were two or three people on the sidewalk approximately one-half block from where Bell turned into the sheriff’s parking lot and there was a car at the final intersection before the sheriff’s parking lot. However, the people on the sidewalk were not approaching the street and the pursuing officer acknowledged that Bell’s brake lights went on prior to the last intersection.

Bell testified that there was no one in danger as a result of his operation of his vehicle and that he was completely in control at all times. When the pursuing officer was asked: “Can you name one person that Brad Bell caused substantial risk of injury to?” he answered, “I don’t know of anybody, no.”

The majority opinion characterizes Bell’s testimony regarding the condition of his vehicle and the degree of his control over that vehicle as self-serving. The implication is that for some reason we should assume, without proof by the State, that Bell was out of control and that someone must have been in danger. However, the last I knew, it was the State’s burden to prove the factual basis for every crime charged. It is not the defendant’s burden to prove that he did not endanger anyone. In this case, the State simply failed to prove that anyone was endangered.

The majority contends that it is up to the jury, not this Court, to determine whether the defendant violated the law. That is an interesting and novel approach for an appellate court. For five and one-half years I have been operating under the assumption that one of this Court’s responsibilities was to assume the truth of the facts proven by the State and then determine as a matter of law whether those facts support the crime for which a defendant was convicted. Until now neither Justice Leaphart nor the other signators of the majority opinion had done anything to dispel that notion.

The majority opinion compares Bell’s conduct to shooting a rifle into a moving passenger train. Suffice it to say that driving a vehicle down a street during daylight hours with a full and clear view of all that is in front of or on either side of the vehicle seems to me to bear little resemblance to blindly firing a bullet into a moving passenger train. Beyond that, analysis of why the majority would choose to compare a speeding vehicle to an armed assault is beyond my field of expertise.

The inference from the majority opinion is that without the sanction from the criminal endangerment statute, conduct like Bell’s would go unpunished. However, that is not correct. There are numerous statutes which were specifically intended to punish conduct exactly like Bell’s.

Section 61-8-301, MCA, prohibits operating a vehicle in willful or wanton disregard for the safety of persons or property. Section 61-8-302, MCA, prohibits careless driving, and § 61-8-303, MCA, requires that a vehicle be operated in a careful and prudent manner and at a speed of no more than 25 miles per hour in an urban district. It is significant that that maximum penalty that the Legislature deemed appropriate for even the most serious of these offenses (operating a vehicle in willful and wanton disregard for the safety of others while fleeing a peace officer) is imprisonment for not more than six months and a fine of not more than $500. Section 61-8-715, MCA.

If the Legislature intended the penalty for the exact conduct engaged in by the defendant to be no more than six months in prison and a fine of $500, how could the Legislature have at the same time authorized a penalty of up to ten years in prison and a fine of up to $50,000 based solely on the discretion of the charging authorities? The majority’s conclusion to that effect makes no sense and opens the door to widespread abuse in thé application of § 45-5-207, MCA.

I conclude that based on the facts presented in this case there was no evidence that Bradley Bell “knowingly engage [d] in conduct that create [d] a substantial risk of death or serious bodily injury to another.” Section 45-5-207(1), MCA (emphasis added).

The majority’s suggestion that Bell can be convicted of criminal endangerment without endangering anyone simply because under other circumstances he might have endangered someone had they been on the street and encountered his speeding vehicle is a strange theory indeed. The fact that someone might have been endangered under other circumstances is completely irrelevant to whether the State proved the elements of the criminal endangerment statute based on the facts in this case. Based on the majority’s conclusion the possibilities for prosecution under the criminal endangerment statute are limited only by the fertile imagination of the State’s prosecutors; this is exactly the kind of ambiguity and opportunity for overcharging that our criminal jurisprudence has traditionally sought to avoid.

At a time when most Montanans correctly assume that there is no daytime speed limit in Montana, this Court has now held that law enforcement authorities can, at their discretion, charge the people of this state with a felony punishable by ten year's in prison and a $50,000 fine for nothing more than driving too fast. This state may now have the most severe penalty in the country for a victimless crime.

Add one more bizarre twist to a year of strange developments in Montana.

For these reasons I dissent from the majority opinion. I would affirm the judgment of the District Court.

JUSTICE HUNT joins in the foregoing dissenting opinion.

JUSTICE GRAY,

dissenting.

I dissent and write separately to add an additional perspective to that advanced by Justice Trieweiler.

It is a fundamental precept of the law that statutes defining criminal offenses must “give a person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he or she may act in accordance therewith.” State v. Huebner (1992), 252 Mont. 184, 187, 827 P.2d 1260, 1262. As Justice Trieweiler points out, various statutory offenses relating to operating a vehicle — including statutes addressing reckless driving, careless driving and the “basic speed rule” for urban areas — provide notice to the driver of a vehicle that driving at excessive speeds in a populated area is sanctionable conduct. Bell properly could have been charged with any or several of those offenses. Section 45-5-207, MCA, the felony criminal endangerment statute, on the other hand, provides no such notice. I submit that no person of ordinary intelligence would ever dream that speeding, regardless of how egregious the rate of travel but without a resulting injury to anyone, constitutes a felony offense carrying a penalty of imprisonment for up to ten years and a fine of up to $50,000.

Moreover, it is important to look to the legislative history of § 45-5-207, MCA. The criminal endangerment offense defined therein was introduced as H.B. 301 in the 1987 legislative session, in the words of the bill’s sponsor, to “plug a hole in the criminal law.” What hole? As the sponsor explained it, the offense “would apply primarily to cases in which someone would introduce poison into aspirin tablets or something of that nature.” (Emphasis added.) No supporter of the bill testified or even suggested that the offense was intended to encompass any conduct relating to operating a vehicle, much less a speeding offense. One supporter offered, as an example of conduct which would come under the statute, the situation where a nurse who was a drug addict took a patient’s medication for his or her personal use and gave the patient a different medication. This example corresponds in concept and nature to the “aspirin tampering” example provided by the sponsor.

Nor did any of the statutes from other states, upon which H.B. 301 purportedly was patterned and which were provided to the Judiciary Committees, address any conduct relating to operating a vehicle. Indeed, those statutes addressed only “reckless” endangerment and, except for one statute which made the offense a felony when the endangerment involved a substantial risk of imminent death, all of the other states’ endangerment offenses were misdemeanors. The two court decisions supporters also provided — one from Washington and one from Arizona — involved charges arising from gun incidents.

The only amendment to § 45-5-207, MCA, came during the 1989 legislative session. That amendment specifically added conduct commonly referred to as “tree spiking” to the definition of criminal endangerment. Such conduct is of the same nature as the “aspirin tampering” conduct for which the offense of criminal endangerment originally was enacted.

Nothing in the legislative history of § 45-5-207, MCA, supports charging Bell’s operation of a vehicle at excessive speeds as criminal endangerment. Nor does the language of the statute apprise a person of ordinary intelligence that speeding, with nothing more, constitutes a felony offense. I dissent.


source: Caselaw Access Project

author: JUSTICE HUNT

license: Public Domain

text:
    DANIEL J. ELLIS, Respondent and Appellant, v. MILDRED A. ELLIS, Petitioner and Respondent.
    No. 96-097.
    Submitted on Briefs May 3, 1996.
    Decided August 22, 1996.
    53 St.Rep. 801.
    277 Mont. 494.
    922 P.2d 1176.

      For Appellant: Gerald J. Neely, Billings.
    For Respondent: Joanne M. Briese, Billings.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant, Daniel J. Ellis (Daniel), appeals from the Findings of Fact and Conclusions of Law entered on September 21, 1995, by the Thirteenth Judicial District Court of Yellowstone County, awarding his former wife, Mildred A. Ellis, permanent maintenance.

We affirm.

The sole issue raised by Daniel is whether the District Court’s decision to award permanent maintenance was based on substantial evidence.

FACTS

Daniel and Mildred were married in 1977. There are no minor children of the marriage. At the time of trial, Mildred was 47 years old and in good health except for a chronic back problem which precludes her from standing for long periods. For the past 8 years, Mildred has worked for Herberger’s Department Store. In 1994 Mildred earned $13,761.98. Daniel has been a federal meat inspector for the past 23 years for the United States Department of Agriculture. He earned $39,194.21 in 1994. In addition, Daniel traditionally receives a pay raise after the first of the year and also receives overtime pay.

Mildred testified that her monthly living expenses total $1,463.50. This amount includes payment on debts incurred as of 1995 totalling $7,846.06. Mildred testified that her estimated monthly expenses exceed her net monthly income by $581.90. Mildred testified that she would be unable to find additional work to supplement her current income because her employer does not allow its employees to work for its competitors. Outside of a retail position, Mildred testified that it would be difficult for her to coordinate the hours of an additional job.

In an affidavit supplied prior to trial, Daniel listed his gross pay as $2,697.60 per month. In addition to state and federal taxes, Daniel listed several other itemized deductions to his paycheck. Daniel stated that his personal expenses were $2,111.42 per month.

Although Daniel was not present at the Jeme 1995 hearing, he offered testimony through deposition and was represented by counsel during the proceedings. After the hearing, the District Court dissolved the marriage and distributed the marital assets. The court determined Mildred was eligible for maintenance and awarded her $500.00 per month from the date of entry of the decree until she dies or remarries.

Daniel appeals.

STANDARD OF REVIEW

This Court will not reverse the district court’s award of maintenance unless the court’s findings are clearly erroneous. In re Marriage of Davies (1994), 266 Mont. 466, 478, 880 P.2d 1368, 1376; In re Marriage of Smith (1995), 270 Mont. 263, 269, 891 P.2d 522, 526.

When determining whether a district court’s findings are clearly erroneous, this Court has adopted a three-part test. In re Marriage of Eschenbacher (1992), 253 Mont. 139, 142, 831 P.2d 1353, 1355. Eschenbacher, 831 P.2d at 1355 (citing Interstate Prod. Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287).

First, the Court will review the record to see if the findings are supported by substantial evidence. Second, if the findings are supported by substantial evidence, we will determine if the trial court has misapprehended the effect of the evidence. Third, if substantial evidence exists and the effect of the evidence has not been misapprehended the Court may still find that a finding is clearly erroneous when, although the evidence is there to support it, a review of the record leaves the court with the definite and firm conviction that a mistake has been committed, (citations omitted).

DISCUSSION

On appeal, Daniel argues there was not substantial evidence to support the District Court’s decision to award Mildred maintenance. First, he contends that Mildred is not entitled to maintenance. Second, he contends that he is financially unable to pay the amount ordered by the District Court.

When determining whether to award maintenance, the court must initially determine if the spouse requesting maintenance is eligible. In making this determination, the district court must consider the statutory provisions of § 40-4-203, MCA, which read in part as follows:

40-4-203. Maintenance. (1) In a proceeding for dissolution of marriage ... the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance:
(a) lacks sufficient property to provide for his [or her] reasonable needs; and
(b) is unable to support himself [or herself] through appropriate employment ....

In Daniel’s first argument, he contends that Mildred will only be short on monthly funds until such a time as she pays off her existing debts. After paying her debts, Mildred’s monthly expenses will be reduced to $1,176.50. Furthermore, Daniel argues that the court improperly considered debts incurred by Mildred following the separation of the parties. Daniel asserts that $4,399.41 of Mildred’s current debt was payment for a wedding for her son from a previous marriage. This leaves only $3,476.65 attributable to Mildred’s living expenses. In addition, Daniel asserts the $3,000.00 loan from her other son should not be considered for the purpose of determining maintenance because the loan has no specific due date, repayment schedule, or applicable interest.

To award maintenance the court must find the eligible spouse lacks sufficient property to support him or herself and is unable to support him or herself through appropriate employment. Here, Daniel is not contesting the fact that Mildred lacks sufficient property to support herself. Daniel argues that if the court would have properly considered the duration of Mildred’s existing debts, Mildred would be able to support herself. Thus, her situation would not satisfy this second prong of the statute. It is Daniel’s position that the disputed personal loans add $159.00 per month to Mildred’s living expenses, “which when that amount is added to her $153.17 per month deficient [sic] found by the Court, Respondent Wife is able to provide for herself.” Contrary to this assertion, however, no where in the court’s findings or conclusions is there a reference to Mildred’s $153.17 deficit. Here, the court, after considering Mildred’s tax obligations, found Mildred’s net income was $881.60 per month. The court then found Mildred’s monthly living expenses to be $1,463.50. This leaves Mildred $581.90 short every month. Even if the court had chosen not to consider amounts Mildred is currently spending to discharge her debts, including the $159.00 in payments disputed by Daniel, Mildred’s income still falls short of her monthly expenses.

Upon review of the record, the evidence supports a finding that Mildred both lacks sufficient property to provide for her needs and that she would be unable to support herself through employment. Therefore, the District Court was not clearly erroneous in determining that Mildred is eligible for maintenance.

Next, after determining that a spouse is eligible for maintenance, the trial court must then engage in an analysis to determine the amount and duration of maintenance pursuant to § 40-4-203(2). On appeal, Daniel’s second argument is that the District Court erred in failing to consider his ability to pay the ordered maintenance. Daniel asserts that he is already $18.12 short per month, and therefore he would be unable to pay maintenance awarded by the court.

Under the statute, Daniel’s ability to pay is only one of the several relevant factors that a court will consider in determining an award of maintenance. The applicable statute reads in part as follows:

(2) The maintenance order shall be in such amounts and for such periods of time as the court deems just, without regard to marital misconduct, and after considering all relevant facts including:
(a) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
(b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(c) the standard of living established during the marriage;
(d) the duration of the marriage;
(e) the age and the physical and emotional condition of the spouse seeking maintenance; and
(f) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.

Section 40-4-203(2), MCA.

Here, the court addressed many of the above listed criteria in its findings. The court considered Mildred’s limited financial resources, finding that she had no income producing property. The court also considered Mildred’s prospects for future employment. But, the court determined that even with retraining or additional education, Mildred would face the prospect of taking on a large student loan debt only to enter the job market after she was 50 years old. In addition, the court noted that Mildred’s standard of living had diminished since the separation.

The court also considered Daniel’s ability to afford maintenance for Mildred. The court found that Daniel’s monthly expenses were approximately $948.00 with an additional $286.41 for a car payment. After expenses, the court determined that Daniel had an excess monthly income of $1,133.02. From this, the court determined that Daniel was financially able to pay $500 per month as permanent maintenance to Mildred.

Daniel asserts that the court was incorrect. He argues that his net pay is closer to $2,093 per month. He further asserts that his monthly expenses are far more than the court’s estimate, averaging $2,111.42 per month.

The disparity between Daniel’s numbers and the court’s numbers is explained in part by way of other court findings. In Daniel’s estimation of his monthly expenses, he includes substantial payments he is making on various credit cards. But, as the District Court found and as Daniel does not dispute, he charges all of his travel expenses as a meat inspector on his credit cards and is subsequently reimbursed by his employer. On appeal, Daniel extends this argument and asserts that the court is implicitly finding that his travel reimbursements exceed his credit payments, and that the court is imputing to him non-existent income in its determination. This assertion misses the point. Debts incurred in the course and scope of Daniel’s employment which are then subsequently assumed by his employer cannot be attributed to him as monthly expenses. Therefore, we conclude that Daniel’s assertion that the District Court in some way ignored his ability to meet his own needs and pay maintenance is not supported by the record.

Daniel’s ability to pay is only one factor to be taken into consideration. As we have stated before, the ability of the spouse to pay is not a deciding factor in determining the propriety of a maintenance award, “[w]hile it is an element, it is not always the determining factor.” In re Marriage of Tahija (1992), 253 Mont. 505, 510, 833 P.2d 1095, 1098. Instead, this Court has held that findings must demonstrate that the court considered the proper factors and that the maintenance award was based on substantial credible evidence. In re Marriage of Corey (1994), 266 Mont. 304, 309, 880 P.2d 824, 827.

We conclude that the District Court considered the proper factors and its maintenance award was based on substantial credible evidence; the District Court’s findings were not clearly erroneous. Therefore, we affirm the court’s calculations and award of maintenance.

Affirmed.

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


author: JUSTICE ERDMANN

text:
    IN RE MARRIAGE OF TREVOR JAMES DISHON, Petitioner and Respondent, and CARRIE LYNN BREITLING, f/k/a CARRIE LYNN DISHON, Respondent and Appellant.
    No. 95-552.
    Submitted on Briefs July 18, 1996.
    Decided August 27, 1996.
    53 St.Rep. 816.
    277 Mont. 501.
    922 P.2d 1186.

      For Appellant: Phillip N. Carter, Attorney at Law, Sidney.
    For Respondent: Peter O. Maltese, Attorney at Law, Sidney.
   JUSTICE ERDMANN

delivered the Opinion of the Court.

Appellant Carrie Dishon appeals from the orders issued by the Seventh Judicial District Court, Richland County, modifying an award of child support and denying her motion for attorney fees. We affirm in part and reverse in part.

The issues on appeal are as follows:

1. Did the District Court abuse its discretion when calculating Trevor Dishon’s child support obligation?

2. Did the District Court err in denying Carrie’s request for attorney fees?

FACTS

Trevor and Carrie were married on July 12, 1991, in Sidney, Montana. Prior to their marriage, Carrie gave birth to their son Cody on April 24, 1991. On December 1, 1993, Trevor filed a Petition for Dissolution of Marriage, which was granted on November 15, 1994. The divorce decree provided that Trevor would pay $43 per month in child support until he finished school and was employed, at which time the child support award could be reviewed.

In May 1995, Trevor graduated from Montana State University with a degree in construction engineering and accepted employment in Las Vegas. Upon discovering that Trevor was employed in Nevada, Carrie filed a motion to modify child support. Trevor did not file a response to the motion, nor did he personally appear. At the hearing, Trevor’s attorney appeared and informed the court that Trevor recognized his obligation for the increased child support but was not present due to the expense of traveling to Sidney and the loss of wages that he would incur for that period.

Trevor submitted a financial affidavit to the court and in that affidavit he marked two variances which he believed would justify variation from the strict application of the child support guidelines. The variances were for the cost of living differential based on the geographic location of the parties and for the cost of long distance visitation. The court, in its order modifying child support, stated that it found insufficient evidence to grant the variance for cost of living differential, but took judicial notice of the distance between Las Vegas and Sidney and granted a $73 per month variance for long distance visitation.

In a separate order, the court denied Carrie’s motion for attorney fees, noting that it had just increased child support from $43 per month to $425 per month, and that both parties were equally capable of paying attorney fees. Carrie appeals from the order modifying child support and from the order denying her an award of attorney fees.

ISSUE 1

Did the District Court abuse its discretion when calculating Trevor Dishon’s child support obligation?

In child support modification cases, we review a district court’s findings of fact to determine whether they are clearly erroneous. In re Marriage of Kovash (1995), 270 Mont. 517, 521, 893 P.2d 860, 862-63. A district court’s conclusions of law are reviewed to determine whether the court’s interpretation of the law was correct. Kovash, 893 P.2d at 863. Finally, we review a district court’s overall decision on modification of child support awards to determine whether the court abused its discretion. Kovash, 893 P.2d at 863. See also In re Marriage of Brandon (1995), 271 Mont. 149, 152, 894 P.2d 951, 953.

Child support awards and modifications must be determined under the Montana Child Support Guidelines. Section 40-4-204, MCA, provides in part:

The amount determined under the guidelines is presumed to be an adequate and reasonable support award, unless the court finds by clear and convincing evidence that the application of the standards and guidelines is unjust to the child or to any of the parties or is inappropriate in that particular case.

In order to rebut this presumption, the party seeking the variance from the guidelines must present competent evidence showing that the application of the guidelines would be unjust or inappropriate. In re Marriage of Welch (1995), 273 Mont. 497, 504, 905 P.2d 132, 136; Platt v. Platt (1994), 267 Mont. 38, 41, 881 P.2d 634, 636. We have previously stated that a bare claim of entitlement to a variance is insufficient. Welch, 905 P.2d at 136.

Trevor checked the variance for the cost of long distance visitation on his financial affidavit, but he did not, as required by the affidavit, provide any factual details in support of his claim. He did not appear at the hearing and his attorney did not present any evidence as to what the visitations may cost Trevor or how often they may occur. The record is devoid of any evidence of prior or projected travel expenses for Trevor’s long distance visitation. Without any evidence as to cost or occurrence, all Trevor presented to the District Court was a bare claim of entitlement.

The District Court took judicial notice of the distance between Las Vegas and Sidney, as permitted by Ride 201 of the Montana Rides of Evidence, and awarded Trevor a monthly variance of $73. Although the court did not err by taking judicial notice of the distance, that alone does not constitute clear and convincing evidence that the application of the guidelines was unjust to Trevor or was inappropriate in his situation. Welch, 905 P.2d 132. Further, since the District Court had no evidence as to cost or occurrence of projected visitation, the $73 per month variation was based on speculation. Adistrict court cannot base child support upon speculation. In re Marriage of Cox (1994), 266 Mont. 67, 73, 878 P.2d 903, 907. We therefore hold that the District Court abused its discretion in granting a variance for Trevor from the child support guidelines in the amount of $73 per month and reverse the District Court on that issue.

ISSUE 2

Did the District Court err in denying Carrie’s request for attorney fees?

The District Court denied Carrie’s motion for attorney fees pursuant to § 40-4-110, MCA. This section provides that the court may order a party to pay a reasonable amount for attorney fees after considering the financial resources of both parties. Section 40-4-110, MCA. We review a district court’s decision not to award attorney fees under § 40-4-110, MCA, to determine whether the court abused its discretion in refusing to award such fees. In re Marriage of Smith (1990), 242 Mont. 495, 503, 791 P.2d 1373, 1378; In re Marriage of Nalivka (1986), 222 Mont. 84, 91, 720 P.2d 683, 688.

Carrie argues that Trevor’s failure to file a response to her motion for attorney fees is an admission that her motion is well taken. Although Rule 2(b) of the Uniform District Court Rules provides that a failure to file an answer brief within ten days shall be deemed an admission that the motion is well taken, it does not require the district court to grant the unanswered motion. Maberry v. Gueths (1989), 238 Mont. 304, 309, 777 P.2d 1285, 1288-89.

Pursuant to § 40-4-110, MCA, the district court must consider the parties’ financial resources in determining whether an award of attorney fees is appropriate. Nalivka, 720 P.2d at 688. The District Court had both Trevor’s and Carrie’s current financial affidavits and the record indicates that the court was well aware of their respective financial resources. After considering this information, the court concluded that neither party was in a better position to pay attorney fees. Although the record reflects that Carrie was not in as strong of a financial position as Trevor, the financial affidavit filed by Trevor, along with the increase in child support ordered by the District Court, indicates that he also had little discretionary income. We conclude that the District Court did not abuse its discretion when it denied Carrie’s motion for attorney fees.

The $73 per month variance granted by the District Court is reversed and the District Court’s order is modified to reflect child support at the amount of $498 per month. We hereby incorporate the terms of the District Court’s order that the payment of the child support at the amount of $498 per month shall be retroactive to July 19, 1995, and that the arrearage shall be paid at a rate of $150 a month until paid in full. The District Court is affirmed as to the denial of Carrie’s request for attorney fees.

Affirmed in part, reversed in part.

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


text:
    DARRIN FENGER, Plaintiff and Appellant, v. FLATHEAD COUNTY, MONTANA, a body politic and corporate; the Board of County Commissioners thereof; and HOWARD GIPE, SHARON STRATTON, and ROBERT WATNE, in their official capacity as County Commission members, Defendants and Respondents.
    No. 96-194.
    Submitted on Briefs July 25, 1996.
    Decided August 27, 1996.
    53 St.Rep. 823.
    277 Mont. 507.
    922 P.2d 1183.

      For Appellant: Michael H. Keedy, Atherton & Keedy, Kalispell.
    For Respondents: Jonathan B. Smith, Deputy Flathead County Attorney, Kalispell.
   JUSTICE ERDMANN

delivered the Opinion of the Court.

Darrin Fenger appeals the order of the Eleventh Judicial District Court, Flathead County, granting summary judgment for the defendants. The summary judgment order held as a matter of law that Fenger’s dismissal was supported by reasonable job-related grounds pursuant to § 39-2-903(5), MCA. We affirm.

The issue on appeal is whether the District Court erred in granting summary judgment in favor of Flathead County.

FACTS

Darrin Fenger was hired by Flathead County in 1989 as a permanent, full-time juvenile detention officer at the Flathead County Juvenile Detention Center (JDC). He completed the county’s probationary period in late 1989 or early 1990. On February 4,1995, Fenger and his co-worker, Glenn Osborne, were on duty at the JDC. A supervisor, Dale Gifford, stopped by and saw three acquaintances of Fenger and Osborne in the center, one of whom was in a secure area of the facility. Gifford told Fenger and Osborne that at no time were visitors allowed in the secure areas of the center.

Fenger attended a staff meeting on February 14, 1995, at which the staff members were reminded that no civilian visitors were to be allowed in the secure areas of the facility. Between February 17 and February 24, 1995, Fenger and Osborne continued to allow visitors in the secure areas of the JDC. On February 25, the director of the Center circulated a memorandum to the staff stating that visitors were not allowed in the secure areas and that violation of that directive would result in disciplinary action including possible termination. All staff members, including Fenger and Osborne, read and initialed the memorandum. On March 9, 1995, Fenger and Osborne were on duty when a visitor again was allowed to enter into a secure area of the facility.

Flathead County’s personnel policy lists the “failure to obey any order made and given by a supervisor” as just cause for discharge. Fenger was given a notice of intent to discharge and was given the opportunity to appear before the Director to present his side of the story before any disciplinary action was imposed. Fenger and Osborne were both terminated by the Director of the JDC on April 10, 1995. Fenger then filed a notice of appeal with the Board of Commissioners of Flathead County.

A hearing was held before the Commissioners at which Fenger acknowledged that he was aware of the rule and that an individual had been in a secure area of the center on March 9,1995. On May 3, 1995, the Commissioners met and affirmed the termination of Fenger.

Fenger filed an action under the Wrongful Discharge From Employment Act, §§ 39-2-901 through -915, MCA. Flathead County, relying on affidavits of county officials, juvenile detention center employees, and the transcript of the Commissioner’s hearing, moved for summary judgment. The District Court determined there was no genuine issue of material fact and that the undisputed facts established a violation of a JDC policy. The court held that this violation as a matter of law was good cause for termination pursuant to § 39-2-903, MCA. The court therefore granted summary judgment. Fenger appeals.

ISSUE

Did the District Court err in granting summary judgment in favor of Flathead County?

Our standard of review in appeals from summary judgment rulings is de novo. Wadsworth v. State (1996), 275 Mont. 287, 294-95, 911 P.2d 1165, 1169; Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785. This Court will apply the same evaluation as the district comb based on Rule 56, M.R.Civ.P. Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903. The movant must demonstrate that no genuine issues of material fact exist. Toombs v. Getter Trucking, Inc. (1993), 256 Mont. 282, 284, 846 P.2d 265, 266. Once this has been accomplished, the burden then shifts to the nonmoving party to prove, by more than mere denial and speculation, that a genuine issue of material fact exists. Bruner, 900 P.2d at 903. Having determined that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. Lindey’s, Inc. v. Professional Consultants, Inc. (1990), 244 Mont. 238, 244, 797 P.2d 920, 924.

Fenger argues that it is a material question of fact whether the breach of county policy constituted reasonable grounds for his discharge. The county asserts that there are no material questions of fact because there was a breach of the policy and this failure to obey an order made and given by a supervisor constitutes good cause as a matter of law for dismissal.

At the hearing concerning his termination Fenger stated:

I guess all this started, Mr. Gifford came in one night and (paper shuffling) (inaudible) ... my dates. Well, basically, there’s Mr. Gifford came in and there’s three of my friends on a softball team. We’re making up a roster, talking about it; and, Dale came in and there’s a little conflict going on in the day room with some juveniles. So, me and Glenn Osborne and I, we had the situation under control. Dale talked to us about the situation and said, you know, we can’t have people coming in here, and one kid was behind the secured area.

On cross-examination, the following questions were asked and answered:

SMITH: The night that Dale came, 4th of February ...
FENGER: Umhum (affirmative).
SMITH: He told you don’t let visitors in?
FENGER: Right.
SMITH: And you had a staff meeting not too long after that where that was discussed, didn’t you?
FENGER: Uh-huh (affirmative).
SMITH: So you knew, in February, not to let people in?
FENGER: OK.
SMITH: And then, about February 25th, a memo was issued, wasn’t it?
FENGER: Umhum (affirmative).
SMITH: Is that the memo?
FENGER: I, uh, yes it is.
SMITH: And, you read that?
FENGER: Yes, I read and signed it.
SMITH: And your initials are on the back?
FENGER: Umhum (affirmative).
SMITH: And paragraph number four of that, again talks about not having visitors, doesn’t it?
FENGER: Yes, it does.

Fenger admits to having been told by a supervisor on February 4, 1995, that visitors were not allowed in the secure areas of the facility. He admits that at the staff meeting later the same month this matter was again discussed. The record shows that Fenger attended the meeting on February 14, 1995. Disregarding this policy, Fenger allowed visitors to enter into the secure areas of the facility between February 17 and February 24. The memorandum regarding the policy was circulated on February 25, 1995. Fenger concedes in his affidavit that he had read the memo which warned of possible termination for a violation of the policy prior to allowing a visitor to enter into a secure area while he was on duty on March 9, 1995.

In Belcher v. Department of State Lands (1987), 228 Mont. 352, 355, 742 P.2d 475, 477, we determined that summary judgment is appropriate in wrongful discharge cases when the complaining party cannot point to a material and substantial act that would alter the district court’s decision. In Belcher, after an extensive review of the record and deposition transcript, we held that:

[N] o underlying dispute of facts is present. Belcher was not doing his job; he had received notice that his work was not adequate; he failed to rectify the situation; and he was subsequently discharged. It appears to us that no basic question of fact exists for jury determination and Belcher does not raise any specific fact question.

Belcher, 742 P.2d at 477-78.

Fenger attempts to raise a question of fact by denying that he had any knowledge of the policy prior to the February 25 memo. He argues that because the policy was new to him when he received the memo in early March 1995, the only violation which can be considered is the March 9, 1995, violation. Fenger argues that this was insufficient to constitute good cause for dismissal and that the county itself acknowledges that the policy violation of March 9, 1995, “standing alone ... would not have resulted in discharge.”

In Stott v. Fox (1990), 246 Mont. 301, 309, 805 P.2d 1305, 1309 (quoting Wilson v. Westinghouse (8th Cir. 1988), 838 F.2d 286, 289), this Court stated that:

While the district courts must exercise extreme care not to take genuine issues of fact away from juries, ‘(a) party should not be allowed to create issues of credibility by contradicting his earlier testimony’... a district court may grant summary where a party’s sudden and unexplained revision of testimony creates an issue of fact where none existed before. Otherwise, any party could head off a summary judgment motion by supplementing previous depositions ad hoc with a new affidavit, and no case would ever be appropriate for summary judgment.

See also Kaseta v. Northwestern Agency of Great Falls (1992), 252 Mont. 135, 138-40, 827 P.2d 804, 806-07.

Fenger cannot create a genuine issue of material fact as to his knowledge of this policy prior to the circulated memo by contradicting his own testimony in his new affidavit. Fenger’s own testimony established that he was given notice of the policy prior to the February 17 through 24 violations.

It is clear that Fenger was not doing his job in accordance with the policy of the JDC. Fenger failed to rectify the situation in which visitors were allowed into secure areas of the facility after he had notice of the policy. Regardless of whether or not Fenger informed visitors of the policy and directed them to stay out of the secure area, it is clear that while he was on duty visitors did enter into secure areas of the facility. Fenger failed to take adequate measures to prevent visitors from entering the secure areas which was his duty as directed by the supervisors of the facility. After reviewing the record de novo we determine that there are no genuine issues of material fact for a jury determination. See Belcher, 228 Mont. 352, 742 P.2d 475.

Having determined that no genuine issues of fact exist, this Court must determine whether Flathead County is entitled to judgment as a matter of law. Lindey’s, 244 Mont. 238, 797 P.2d 920. Section 39-2-904(2), MCA, states that a discharge is wrongful only if it was not for good cause and the employee had completed the employer’s probationary period of employment. Good cause is defined as meaning reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of the employer’s operation, or other legitimate business reason. Section 39-2-903(5), MCA. Flathead County’s personnel policy lists as just cause for termination, the “failure to obey any order made and given by a supervisor.”

The record demonstrates that Fenger did not satisfactorily perform his job duties, as he repeatedly ignored the written and oral directives to keep visitors out of the secure areas of the facility. See Miller v. Citizens State Bank (1992), 252 Mont. 472, 830 P.2d 550. We therefore hold that the violations of the county’s policy by Fenger constitute, as a matter of law, reasonable job-related grounds for dismissal.

Affirmed.

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


author: JUSTICE NELSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JORGE TORRES, Defendant and Petitioner.
    No. 96-369.
    Decided August 27, 1996.
    53 St.Rep. 826.
    277 Mont. 514.
    922 P.2d 1180.
   OPINION AND ORDER

This matter comes before the Court on petitioner Jorge Torres’ petition for post-conviction relief. The facts which give rise to this petition are as follows:

In July 1994, Torres was charged with aggravated assault, a felony, pursuant to § 45-5-202, MCA. In February 1995, Torres pled guilty to the charged offense and signed an Acknowledgement of Waiver of Rights by Plea of Guilty form. In April 1995, the District Court sentenced Torres to a term of twenty years in the Montana State Prison. In June 1995, Torres filed a motion to withdraw his guilty plea, which the District Court denied in December 1995.

Torres subsequently applied for a sentence review with the Sentence Review Division of the Montana Supreme Court. Before the Sentence Review Division heard the application, Torres was advised that the Sentence Review Division had the authority to not only reduce or affirm the sentence, but also to increase it and that there were no rights of appeal from its decision. Torres acknowledged that he understood the consequences of appearing before the Sentence Review Division and stated that he wished to proceed.

Following the hearing, the Sentence Review Division stated that the reasons advanced for modification of the sentence were insufficient to hold that the sentence imposed by the District Court was inadequate or excessive. However, the Sentence Review Division modified Torres’ sentence by adding the restriction that Torres not be considered eligible for parole or other release until he had served seven years of the sentence imposed, during which time he must complete the anger management program and other counseling deemed appropriate by the prison staff. The Sentence Review Division stated that its reasons for the restriction were that during the sentence review hearing Torres exhibited absolutely no remorse or concern for the victim of the crime, illustrated disdain for the victim, and accepted no responsibility for his actions.

Torres argues that the Sentence Review Division’s restriction renders his guilty plea involuntary because the District Court did not inform him of the effect of any penalty enhancement provision or special parole restriction pursuant to § 46-12-210, MCA. Torres claims that since the District Court sentenced him without informing him that he could be designated ineligible for parole, the effect of the Sentence Review Division’s parole restriction was to render his guilty plea involuntary. Torres also argues that the restriction was improper since the Sentence Review Division determined that the reasons Torres advanced for modification of his sentence were insufficient to hold that the sentence imposed by the District Court was inadequate or excessive.

The State of Montana filed a response to the petition arguing that § 46-18-905, MCA, provides that a decision of the Sentence Review Division is final and cannot be appealed. The State argues that Torres’ petition for post-conviction relief is, in effect, an appeal of the Sentence Review Division’s decision and is therefore prohibited by § 46-18-905, MCA.

In this Court’s July 30,1996, order in Whitehorn v. State, Cause No. 96-265, we reviewed the decision of the Sentence Review Division under a petition for post-conviction relief. Section 46-18-905, MCA, provides no avenue of appeal for a defendant to challenge the legality of a decision by the Sentence Review Division. Section 46-21-101, MCA, Montana’s post-conviction relief statute, provides that:

A person adjudged guilty of an offense in a court of record who has no adequate remedy of appeal and who claims... that the court was without jurisdiction to impose the sentence ... may petition the court that imposed the sentence or the supreme court to vacate, set aside, or correct the sentence ....

Therefore, we conclude that a petition for post-conviction relief or other extraordinary writ is appropriate for the purpose of challenging the decision of the Sentence Review Division.

In this case, the Sentence Review Division found there were insufficient reasons to find that Torres’ sentence was inadequate or excessive. Rule 17 of the Rules of the Sentence Review Division provides that:

The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.

Nonetheless, the Sentence Review Division modified Torres’ sentence by restricting his parole eligibility. Having found that the original sentence was not inadequate, the Sentence Review Division lacked jurisdiction to alter the sentence.

After due consideration of the petition and response,

IT IS HEREBY ORDERED that Torres’petition for post-conviction relief is GRANTED in regard to the Sentence Review Division’s modification of Torres’ sentence and that provision is ordered stricken from the Sentence Review Division’s decision and from Torres’ prison sentence.

The Clerk is directed to mail a true copy of this order to the petitioner personally, to the Attorney General and to the Yellowstone County Attorney.

DATED this 27th day of August, 1996.

/S/J. A. TURNAGE, Chief Justice

/S/WILLIAM E. HUNT, SR., Justice

/S/ CHARLES E. ERDMANN, Justice

/S/ TERRY N. TRIEWEILER, Justice

/S/ W. WILLIAM LEAPHART, Justice

JUSTICE NELSON

specially concurs and dissents.

I concur in the result of our order, but I dissent from the procedural mechanism through which we are granting relief to Torres. I am not satisfied that § 46-21-101, MCA, serves as the authority for this order. By its language, that section of the Montana Code provides a post-conviction remedy from an unconstitutional or unlawful sentence imposed by a court. Here the problem is not from anything which the sentencing court did, but, rather, results from the Sentencing Review Board effectively increasing Torres’ sentence in violation of the Board’s own Rule 17, which prohibits the Board from increasing or reducing a sentence “unless it is deemed clearly inadequate or excessive.” Since the District Court’s sentence was found to be neither inadequate nor excessive, the Board had no jurisdiction to modify the sentence in violation of its own rules.

The Sentence Review Board is appointed by the Chief Justice of the Supreme Court and functions as a review division of this Court. Section 46-18-901(1), MCA. Accordingly, this Court has the responsibility and supervisory authority to insure that its sentence review division complies with the statutes and rules governing the division’s operations in the same manner that we have such responsibility and authority to insure that other boards and commissions appointed by and supervised by this Court act within their jurisdiction and authority. Art. VII, Sec. 2, Mont.Const.

Rule 17, M.R.App.R, codifies this Court’s constitutional power “to hear and determine such original and remedial writs as may be necessary or proper to complete the exercise of its jurisdiction”, and it is on that basis alone, I believe, that we are authorized to correct the unlawful sentence modification by the Sentence Review Board in this case.

Similarly, it was on that basis that we were authorized to enter our July 30, 1996, order in Whitehorn, Cause No. 96-265. While we entered our order in that case on the basis of a petition for postconviction relief, the issue of the procedural mechanism by which the Sentence Review Board’s decision was brought before this Court was not raised or addressed. Our order was correct; the procedural mechanism under which we entered it was not.

In my view, § 46-21-101, MCA, does not contemplate or authorize a petition for postconviction relief from action by the Sentence Review Board. As long as the Board is acting within its jurisdiction and authority under its rules and the applicable statutes, then its decision is final. Section 46-18-905, MCA. There is no appellate review of the Board’s decision either by way of direct appeal or postconviction relief.

By failing to recognize the proper basis on which we are authorized to deal with Torres’ demand for relief (i.e. our discretionary power of supervisory control over the review division of this Court), we are opening up an avenue for routine appellate review of decisions of the Sentence Review Board via postconviction relief — a remedy which is not authorized by any of the governing statutes.

JUSTICE GRAY joins in the concurring and dissenting opinion of JUSTICE NELSON.