author: JUSTICE GRAY JUSTICE TRIEWEILER

text:
    IN RE THE MARRIAGE OF MICHAEL H. KEEDY, Petitioner and Appellant, and CAROL SUE KEEDY, Respondent and Respondent.
    No. 90-598.
    Submitted on briefs April 18, 1991.
    Decided June 13, 1991.
    Rehearing Denied July 25, 1991.
    249 Mont. 47.
    813 P.2d 442.

      Katherine R. Curtis, McEwan, Weaver, Kaplan & Curtis, Columbia Falls, for petitioner and appellant.
    James A. Manley, Manley Law Offices, Poison, for respondent and respondent.
   JUSTICE GRAY

delivered the Opinion of the Court.

The appellant, Michael Keedy, appeals from the property distribution of the Eleventh Judicial District Court, Flathead County, in this marital dissolution action. We affirm in part, reverse in part and remand for further proceedings.

The appellant raises the following issues on appeal:

1. Did the District Court err in including the appellant’s entire baseball card collection as a marital asset?

2. Did the District Court err in its valuation and distribution of the appellant’s retirement benefits?

3. Did the District Court err in disregarding the values of certain marital assets disposed of by the parties following their separation but prior to the dissolution?

The appellant and the respondent, Carol Keedy, were married on May 27, 1973, in Lincoln, Nebraska. At the time of the marriage, Michael’s education consisted of a bachelor’s degree and a juris doctorate degree; Carol possessed a bachelor’s degree in education. Two children were bom to the marriage: a son, born on October 29, 1974, and a daughter, bom on November 23, 1977.

Throughout the marriage, Michael has been employed as a lobbyist, attorney, legislator and, for the past seven years, district court judge. During the marriage, Carol worked primarily as a homemaker; she currently teaches at a private school.

The parties separated on April 1, 1989, and brought this matter before the District Court on April 30,1990. The District Court entered its Amended Findings of Fact, Conclusions of Law, and Order on August 3, 1990. Michael appeals.

The first issue raised on appeal is whether the District Court erred in including the entire baseball card collection as a marital asset.

The baseball card collection consists of approximately 100,000 baseball cards. Michael testified that he began the collection as a boy in 1954 and continued to collect the cards up through 1963. He resumed his card collecting again in 1971 and continued collecting baseball cards after his marriage to Carol in 1973. At trial he introduced into evidence various lists of cards in an attempt to demonstrate which cards he had acquired prior to the marriage and which cards he had acquired after the marriage.

Carol hired an appraiser who estimated the value of the entire collection at $208,000. Michael testified that he believed the collection to be worth $100,000. After straggling with the evidence before it, the District Court abandoned its attempt to determine which cards were brought into the marriage or to place a value on the baseball cards. The court required Michael to divide the collection into two equal piles and allow Carol to select one pile of cards.

Michael argues, first, that the District Court erred in including in the marital estate those baseball cards he brought into the marriage. He also contends that the current value of such cards is not a product of contribution from the marital effort and should be excluded from the marital estate as his separate property.

This Court has repeatedly held that distribution of marital assets by a district court, where based upon substantial credible evidence, will not be overturned absent a clear abuse of discretion. In re Marriage of McFarland (1989), 240 Mont. 209, 213, 783 P.2d 409, 411.

Section 40-4-202(1), MCA, requires the courts to,

“[E]quitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired ... In dividing property acquired prior to the marriage.... property acquired in exchange for property acquired before the marriage ...; [and] the increased value of property acquired prior to marriage; ... the court shall consider those contributions of the other spouse to the marriage, including:
“(a) the nonmonetary contribution of a homemaker;
“(b) the extent to which such contributions have facilitated the maintenance of this property; and
“(c) whether or not the property division serves as an alternative to maintenance arrangements. (Emphasis added.)”

The District Court properly determined that the baseball card collection was a marital asset, however, it erred in not crediting Michael with the value, at the time of the marriage, of the cards he brought into the marriage.

The value of the premarital cards at the time of the marriage was undisputed between the parties. Michael testified that the value of the collection at the time of the marriage, or shortly thereafter, was approximately $5,000. Carol herself proposed in her Trial Memorandum, that in order “to equitably divide the property, the [District] Court should award $5,000.00 to the Petitioner to represent the value of the baseball card collection that he brought into the marriage.”

In considering the factors presented in § 40-4-202(1), MCA, it becomes apparent that the value of the premarital cards is not properly a part of the marital estate. The undisputed amount of $5,000 could not have been contributed to in any way by Carol.

However, the appreciation in value of the cards, including the premarital cards, properly could be included in the marital estate under § 40-4-202(1), MCA, if the evidence supported spousal contribution to that appreciated value. Michael argues that the increase in value of the premarital baseball cards was not related to any marital contribution from Carol. We disagree.

In the present case, substantial credible evidence exists to support the finding that Carol contributed to the maintenance and growth of the collection. Evidence shows that she encouraged Michael to collect the cards, participated in the collection by buying foods associated with particular cards, and, on at least one occasion, protected the cards from a flood while Michael was away from home. Testimony also indicated that Michael’s card purchases strained the family budget at times, with the family sacrificing other items in order to build the collection.

It was not erroneous, under these circumstances, for the District Court to find that Carol contributed to the maintenance and growth of the card collection and, therefore, that she is entitled to share in the postmarital appreciation in value.

Thus, we hold that it was proper to include the baseball card collection as part of the marital estate, but that the District Court erred in failing to credit Michael with the undisputed value of $5,000 for the baseball cards he brought into the marriage.

The second issue on appeal is whether the District Court erred in its valuation and distribution of Michael’s retirement benefits.

Both parties produced expert witnesses to testify as to the present value of Michael’s retirement benefits as a district court judge; both present value calculations assumed that Michael would retire at the age of sixty-five as a judge. Carol’s expert witness testified that as of April 30,1990, the present value of Michael’s retirement benefits was $91,364. Michael’s expert witness testified that the present value of Michael’s retirement as of April 30, 1990, was $85,630.

Michael’s expert witness also testified that the current value of Michael’s retirement benefits, if he decided to withdraw the entire amount on April 30, 1990, was $28,115. Michael contended that this value was the appropriate amount to be distributed between the parties.

The District Court concluded that Michael’s retirement was worth $91,364, the figure proposed by Carol’s expert. The court distributed that value equally between the parties and ordered Michael to pay Carol her half of the $91,364 as part of an equalizing payment. We find the distribution of Michael’s retirement benefits, although based upon substantial evidence, to be an abuse of discretion.

Carol’s expert testified that his valuation of the retirement would be meaningless if, for any reason, the assumption that Michael retire at age sixty-five as a judge became invalid. Thus, if Michael dies, resigns from the bench, is defeated in a re-election campaign, or for any other reason is not a judge at age sixty-five, the expert’s valuation is invalid. Given the significant span of years involved, Michael’s uncertainty about future plans and other factors, it was error for the District Court to rely on the present value methodology, thus placing all of the risks of future contingencies on Michael.

This Court stated in Glasser v. Glasser (1983), 206 Mont. 77, 669 P.2d 685, that, although present value of retirement benefits is the proper test in determining marital interest, further evidence may demonstrate that the value “might be affected by the contingency of the retirement benefits failing to reach levels used by the court.” (Citations omitted.) Glasser at 85, 669 P.2d at 689. We noted several guidelines that are helpful in distributing retirement funds, including: that the court should disentangle the parties, where possible and equitable, by fixing a sum certain to be paid, and where the court determines that the parties will proportionately share the benefits, the parties should also share the risks of future contingencies, such as the employee spouse’s death or delayed retirement, and payments to the receiving spouse should be made as the employee spouse receives the retirement pay. In addition, in determining if a lump sum award is appropriate, the court should consider the burden it would place on the paying spouse in view of the financial circumstances. Glasser at 85, 669 P.2d at 689.

In the present case, the District Court failed to consider these guidelines. By requiring immediate payment of Carol’s one-half interest based on the present value methodology, Carol does not share at all in the substantial risks that the present value amount never will be realized. Furthermore, an immediate pay out of half the benefits places an unreasonable burden on Michael in view of his financial standing.

If Carol wishes to receive a present lump-sum distribution as her share of the retirement benefits, it should be based upon the $28,115 accrued contributions with interest allowed by law as of April 30,1990. These funds represent the actual accrued value of the retirement benefits during the marriage and the amount available to Michael today should he leave the bench and withdraw the benefits. To require him to pay Carol half of that amount does not impose an unreasonable burden on him.

On the other hand, Carol may wish to share in the risk of future contingencies. If so, she is entitled to her proportionate share of the future benefits at such time as Michael actually receives the retirement benefits.

The test for determining the value of a retirement pension is present value. Kis v. Kis (1982), 196 Mont. 296, 639 P.2d 1151. However, where there are substantial future risks involved in the calculations of the value, both parties should share those risks.

The District Court abused its discretion in failing to consider the future risks relative to the benefits. That abuse of discretion was compounded by the District Court’s not considering the financial burden placed on Michael by requiring immediate payment. The two alternatives of distributing the benefits set forth above take into account these considerations. Carol should be allowed to select which of the two methods of distribution she prefers.

The final issue is whether the District Court erred in disregarding the values of certain marital assets disposed of by the parties following their separation but prior to the dissolution.

The District Court found that various items of property had been sold by the parties during the period that they were separated. It concluded that the proceeds had been used to pay normal living expenses and, consequently, the proceeds from those marital assets were not included in the marital estate.

Michael insists that the District Court has allowed Carol to unaccountably liquidate and dissipate marital assets. In so doing, according to Michael, the District Court is encouraging dissipation of marital assets following separation.

We find that substantial evidence exists in the record to support the findings of the District Court. Carol testified that the money was used to pay marital debts. Michael introduced no evidence to disprove Carol’s testimony. As the District Court noted, Michael’s argument was merely speculative.

We hold that the District Court did not abuse its discretion in concluding that the proceeds of the disposed marital property had been used for family debts and normal living expenses.

Affirmed in part, reversed in part, and remanded to the District Court for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, HUNT, McDONOUGH and WEBER concur.

JUSTICE TRIEWEILER

concurring in part and dissenting in part.

I concur with those parts of the majority opinion which reverse the District Court’s distribution of appellant’s retirements benefits, and which affirm the District Court’s exclusion of certain assets from the marital estate.

I dissent from that portion of the majority opinion which includes any portion of appellant’s baseball card collection acquired prior to the marriage as a marital asset.

The majority correctly points out that the disposition of property acquired prior to marriage is controlled by § 40-4-202(1), MCA. However, conspicuously absent from the majority opinion are any of our recent decisions which have applied that statute.

Our previous decisions would exclude the appreciated value of Michael’s pre-marriage baseball cards, without some showing that Carol contributed to their appreciation. In Re Marriage of Herron, 186 Mont. 396, 608 P.2d 97 (1980); Becker v. Becker, 218 Mont. 229, 707 P.2d 526 (1985); In Re Marriage of Sirucek, 219 Mont. 334, 712 P.2d 769 (1985); In Re Marriage of Fitzmorris, 229 Mont. 96, 745 P.2d 353 (1987); In Re Marriage of McFarland, 240 Mont. 209, 783 P.2d 409 (1989).

For example, in Herron the District Court also divided marital property on a 50/50 basis, even though the majority of the property had been given to Mrs. Herron by her father. The Supreme Court found, however, that gifted property, like pre-acquired property, is governed by § 40-4-202(1), MCA, and based upon that statute concluded:

“If none of the value of the property is a product of contribution from the marital effort, [sic] the District Court can justifiably find that the non-acquiring spouse has no interest in the property.
“... Both parties here should share equally in the portion of the value of the gift property attributable to contribution from the marriage and appreciation during marriage. The Herrons should not, however, share equally in the total value of the property since the marital assets came to the marriage principally as gifts for Mrs. Herron’s benefit.”

Herron, 186 Mont. at 404-05, 608 P.2d 97.

Here, the majority justified giving half of the appreciated value of Michael’s baseball cards to Carol because “Carol contributed to the maintenance and growth of the collection.” The majority also relies on the following facts:

“Evidence shows that she encouraged Michael to collect the cards, participated in the collection by buying foods associated with particular cards, and, on at least one occasion, protected the cards from a flood while Michael was away from home. Testimony also indicated that Michael’s card purchases strained the family budget at times, with the family sacrificing other items in order to build the collection.”

All of these observations missed the point. None of these efforts on Carol’s part had anything to do with the value of those cards which were acquired by Michael prior to his marriage. All of those efforts relate directly to those cards which were acquired by Michael after his marriage. The appellant agrees that those cards acquired after his marriage to Carol should be included as a marital asset and divided equally between the parties.

Even those cards which were saved from a flood by Carol were cards which were acquired after the marriage. Any appreciation that occurred to pre-marriage baseball cards occurred simply by the passage of time and increased national interest in old baseball cards. It had nothing to do with any contribution by Carol.

The District Court’s decision to include all of the baseball cards as a marital asset was primarily based upon the difficulty of determining which cards were in the estate before the marriage and which ones were not.

There was testimony from Michael, including corroboration from his records, which would have enabled the District Court to make that determination. However, presuming the District Court was dissatisfied with the conclusiveness of that testimony, and understanding that District Judges do not have the time to personally review a collection of 100,000 baseball cards, it would have been preferable to appoint a master or referee for that purpose, rather than divide the collection inequitably.

For these reasons, I dissent from that portion of the majority opinion which includes all but $5000 worth of appellant’s baseball card collection as a marital asset. I would exclude all of those cards which the evidence established were acquired by appellant prior to his marriage.


source: Caselaw Access Project

author: JUSTICE GRAY

license: Public Domain

text:
    DENNIS R. WASHINGTON, Plaintiff and Respondent, v. JAMES D. SLACK, JR.; Les Hardy, Jr., d/b/a Hardy Leasing and Bert E. Arnlund; Aetna Life Insurance Company, a corp.; Norwest Bank Of Billings, N.A. f/k/a the First Northwestern Bank of Billings, a National Banking Assoc.; Carbon County Oil Company d/b/a Vondra’s Exxon; Dill, Dill & McAllister, a partnership of attorneys; Standard of Montana Resource Corp., a Montana corp. Defendants and Appellants.
    No. 91-044.
    Submitted on briefs April 18, 1991.
    Decided June 13, 1991.
    249 Mont. 56.
    813 P.2d 447.

      Carol Hardy Conrad, Pedersen & Conrad, Billings, for defendants and appellants.
    Evonne Smith Wells, Missoula, for plaintiff and respondent.
   JUSTICE GRAY

delivered the Opinion of the Court.

The appellants, Les Hardy, Jr. and Bert E. Amlund, appeal from the Judgment and Decree of Foreclosure of the District Court of the Thirteenth Judicial District, Carbon County, granting summary judgment to the respondent, Dennis R. Washington, as to lien priority. We affirm.

The dispositive issue on appeal is whether the District Court erred in concluding that the error contained in the respondent’s mortgage was not material and therefore, as a matter of law, that the appellants, as subsequent judgment lienholders, had constructive notice of the respondent’s prior recorded mortgage.

On May 9, 1983, the defendant James D. Slack, Jr., entered into an agreement with Atlantic Richfield Company (ARCO) whereby Slack agreed to purchase from ARCO four tracts of real property. Two of the tracts are contiguous property in an area commonly known as Washoe and located in Township 8 South, Range 20 East, P.M.M., Carbon County, Montana. The other two tracts are in the Joliet area and are located in Township 4 South, Range 22 East, P.M.M., Carbon County, Montana. When ARCO deeded the four tracts of land to Slack, it reserved unto itself the oil and gas interest in those tracts. The deed from ARCO as grantor to Slack as grantee was made effective May 9, 1983, and was recorded in the office of the Clerk and Recorder of Carbon County, Montana, at 9:45 a.m., May 11, 1983.

On the effective date of the deed, May 9, 1983, Slack executed a promissory note to ARCO, secured by a mortgage on the four tracts of land. The mortgage, which named Slack as the mortgagor and ARCO as the mortgagee, was recorded in Carbon County on May 11, 1983 at 9:50 a.m. The deed and the mortgage both contain the same legal description of land as to Township, Range, Sections and portions of Sections. The mortgage provided in part:

“That Mortgagor hereby mortgages to Mortgagee all that property described on attached Exhibit A, incorporated herein by this reference, located in Carbon County, Montana, as security for the payment to Mortgagee of Three Hundred Thousand Dollars ($300,000.00) on or before May 1, 1988, with interest thereon at the rate of eleven percent (11%), as required in that certain Note of even date herewith.” Exhibit A, attached to the mortgage, provided that the mortgage covered “[a]ll ARCO’s right, title, and interest in the following described tracts: ...” This language was followed by the correct legal description of the four tracts of land. Exhibit A was in error. It should have stated “[a]ll Slack’s right, title, and interest in the following described tracts: ...”

On September 27,1984, the defendants and appellants, Les Hardy, Jr. and Bert E. Amlund, obtained a judgment against Slack in the amount of $78,312.10. An abstract of the judgment was recorded in Carbon County on October 4, 1984. The appellants had no actual notice of the existence of the Slack-ARCO mortgage and their judgment hen has never been satisfied.

On October 2,1987, ARCO assigned its interest in the Slack-ARCO mortgage and promissory note to the plaintiff and respondent, Dennis R. Washington. The assignment of the mortgage was recorded on July 1, 1988. Slack failed to pay the full amount of principal and accrued interest on or before May 1, 1988, as required by the promissory note secured by the mortgage. On April 10, 1989, the respondent commenced a foreclosure action on Slack’s interest in the tracts of land described in the mortgage; he asserted that the mortgage had priority over the appellants’judgment hen.

On April 26, 1989, the appellants answered and cross-claimed, asserting that their judgment lien had first priority based upon the error in the attachment to the respondent’s mortgage. The parties filed cross-motions for summary judgment on the issue of priority. The District Court determined that the respondent’s mortgage and the appellants’judgment lien were valid liens against the real property and that the mortgage had priority over the judgment hen. The court concluded that the error in the attachment to the mortgage was not material and, as a matter of law, that the appellants had constructive notice of the mortgage. The District Court then granted the respondent’s motion for summary judgment, denied the appellants’ motion, and ordered foreclosure. Other facts relevant to this appeal will be discussed as necessary.

Did the District Court err in concluding that the error contained in the respondent’s mortgage was not material and therefore, as a matter of law, that the appellants, as subsequent judgment lien-holders, had constructive notice of the respondent’s prior recorded mortgage?

The appellants maintain that when ARCO deeded the tracts of land to Slack and reserved for itself the oil and gas interest in those tracts, two separate estates were created. They assert that Slack’s mortgage to ARCO, stating that it covered all of ARCO’s interest in the tracts, contained a material error insofar as the rights of third parties are concerned because the mortgage identified ARCO’s oil and gas estate as the encumbered property and did not disclose an encumbrance upon Slack’s interest in the surface estate.

The appellants further contend that the recording of the defective mortgage did not impart constructive notice to them as Slack’s subsequent judgment creditors. Citing Poncelet v. English (1990), 243 Mont. 481, 795 P.2d 436 and Ely v. Hoida (1924), 70 Mont. 542, 226 P. 525, they argue that a mortgage describing the wrong property is not constructive notice as to other property which the parties to the mortgage intended to, but did not, describe.

In Poncelet, the property owner executed to Poncelet a mortgage containing an erroneous legal description. The mortgage described “Lot ‘A’ of the Amended Plat of Lots 11 and 12 in Block 6, City of Poison, Lake County, Montana, according to the official plat....” The description left out “of Riverside Addition.” After recordation of the Poncelet mortgage, the property owner executed another mortgage which was subsequently assigned to Colonial Savings and Loan Association (Colonial). This mortgage contained a correct legal description. Thereafter, Poncelet brought suit for foreclosure and reformation of his defective mortgage, naming Colonial as a defendant. Colonial moved for summary judgment on the basis that its mortgage had priority over Poncelet’s earlier, but defective, mortgage. This Court affirmed summary judgment in favor of Colonial, holding that the second mortgage had priority over the first.

“ The form of recording of conveyance is paramount unless a party has actual notice of a prior claim. (Citations omitted.) While this rule may have an undeniably harsh effect where Poncelet is concerned, we cannot minimize the import of full compliance with proper legal descriptions for the purpose of constructive notice from recorded instruments. It was incumbent upon Poncelet to make certain that the recorded mortgage contained an accurate legal description of the property.
“In Ely v. Hoida (1924), 70 Mont. 542, 226 P. 525, a case on all fours with the one at bar, this Court stated that in order to give a mortgage priority as against a subsequent mortgagee, the mortgage must describe the land covered by it with sufficient accuracy to enable one examining the record to identify the land. In the present case, as in Ely, the mortgage described land other than the land intended to be mortgaged. The subsequent mortgagee had no duty to inquire further when the mortgage appeared on its face to describe some property but not specific property .... (Emphasis added.)”

Poncelet, 243 Mont. at 484, 795 P.2d at 438.

In Ely, Ely’s prior recorded mortgage described lots 17 and 18 in block 1, Lenox addition. This block did not contain any lots numbered 17 and 18. The later Bateman mortgage included an accurate legal description of the property located outside the Lenox addition. In holding that the second mortgage had priority over the first, this Court stated:

“When Bateman took her mortgage, if she desired to protect herself against prior recorded conveyances or mortgages of the property embraced therein, it was, of course, her duty to examine the records. If she did so and discovered that the Ely mortgage covered lots 17 and 18 in block 1, Lenox addition, even though she actually read this instrument she was under no obligation to pursue her inquiry further. There is nothing upon the face of the Ely mortgage to indicate that there was any mistake or imperfection therein. ... and one reading it would have a right to assume that it was correct, and would have no duty imposed upon him to go beyond the record for the purpose of ascertaining that the parties intended to cover land located entirely outside the Lenox addition. ... (Emphasis added.)”

Ely, 70 Mont. at 547-48, 226 P. at 527

Construing the Poncelet and Ely decisions together, the property covered by the mortgage will be held to be described with sufficient accuracy, and will impart constructive notice through the operation of the recording statutes, if one examining the mortgage may, from the language of the mortgage and the information gained from the inquiry clearly suggested by the language of the mortgage, identify the specific land intended to be included. Because each case depends on its own facts, the determination of what constitutes “sufficient accuracy” must be made on a case-by-case basis.

The appellants are correct in their assertion that when ARCO deeded the tracts of land to Slack and reserved the oil and gas interest in those tracts, two separate estates were created. See In re Hume’s Estate (1954), 128 Mont. 223, 272 P.2d 999. However, it is also true in this state that, although the oil and gas interest is a separate estate, its boundaries continue to be dictated by the boundaries of the severed surface estate. Jackson v. Burlington Northern Inc. (1983), 205 Mont. 200, 204, 667 P.2d 406, 408. Therefore, we are presented here with a factual situation where more than one property interest exists within the boundaries of the land; as such, the case at bar is distinguishable from both Poncelet and Ely.

In this case, there is no error in the legal description contained in the mortgage executed by Slack to ARCO. The legal description contained in Exhibit A would lead one examining the record directly to the four tracts of land owned by Slack and which were the subject of the mortgage. The question then becomes whether the mortgage sufficiently denotes the specific property interest in those tracts of land which was intended to be covered by the mortgage.

Upon examining the mortgage in its entirety, it is obvious from the face of the mortgage that it contains a mistake in its reference to the specific property interest encumbered. Slack executed the mortgage as mortgagor and was expressly named as mortgagor on pages one and three of the instrument. The mortgage also provided:

“That Mortgagor hereby mortgages to Mortgagee all that property described on attached Exhibit A ... as security for the payment to Mortgagee of Three Hundred Thousand Dollars ($300,000.00) ...”

In Exhibit A, there is language immediately preceding the legal description that states: “All ARCO’s right, title, and interest in the following described tracts:....” This language is inconsistent with the body of the mortgage which clearly denotes Slack as the mortgagor and ARCO as the mortgagee, since it is axiomatic that a mortgagor cannot mortgage a mortgagee’s interest in property. This mistake in the mortgage is made even more obvious by the specific reference to the oil and gas interest reserved by ARCO immediately following the legal description of the four tracts of land in Exhibit A. This reference was a clear indication that the reserved interest was excepted from the mortgaged property.

Under these particular facts, it is obvious from the face of the mortgage that the parties to the mortgage intended the mortgage to cover Slack’s interest in the surface estate. Unlike the factual circumstances in Poncelet and Ely, one examining the mortgage containing this obvious error would at least have a duty to inquire into the mortgage and would be chargeable with constructive notice of all the information in the public records which would be gained if the inquiry was pursued to the full extent to which it led. Guerin v. Sunburst Oil & Gas Co. (1923), 68 Mont. 365, 371, 218 P. 949, 951. From the public records, the constructive notice given thereby, and the mortgage and deed instruments, it is illogical to assert that the mortgage contained a material error.

We hold that the District Court did not err in concluding that the error contained in the mortgage was not material and therefore, as a matter of law, that the appellants, as subsequent judgment lien-holders, had constructive notice of the respondent’s prior recorded mortgage. Where, as here, the specific property intended to be mortgaged can be identified from the instrument itself or from inquiry clearly suggested by the language of the instrument, such error does not affect the validity of the instrument.

Affirmed.

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


text:
    RANDY L. McINTYRE, Claimant and Appellant, v. GLEN LAKE IRRIGATION DISTRICT, Employer, and STATE COMPENSATION INSURANCE FUND, Insurer and Respondent.
    No. 90-559.
    Submitted on briefs March 21, 1991.
    Decided June 13, 1991.
    249 Mont. 63.
    813 P.2d 451.

      Roger M. Sullivan, McGarvey, Heberling, Sullivan & McGarvey, Kalispell, for claimant and appellant.
    Mark Stermitz, Warden, Christiansen, Johnson & Berg, Kalispell, for insurer and respondent.
   JUSTICE GRAY

delivered the Opinion of the Court.

The claimant and appellant, Randy L. McIntyre, appeals the judgment of the Montana Workers’ Compensation Court that his disability resulting from thoracic outlet syndrome had not been proven by a preponderance of the evidence to result from his 1987 injury. We affirm.

The following issues are on appeal:

1. Did the Workers’ Compensation Court err in concluding that the claimant’s thoracic outlet syndrome did not result from his 1987 injury?

2. Is the claimant entitled to temporary total disability benefits as a result of his 1987 injury?

3. Is the claimant entitled to permanent partial disability benefits as a result of his 1987 injury?

4. Is the claimant entitled to costs, attorney’s fees, and a penalty award?

McIntyre was injured in an industrial accident in the course of his employment with Glen Lake Irrigation District on May 9,1987, near Eureka, Montana. He was attempting to change a flat tire on a heavy equipment trailer when the jack he was using began to tip. While reaching under the trailer to try and release the jack, the jack slipped and the trailer came down; the trailer tire struck McIntyre’s chest and pinned him to the ground.

McIntyre’s wife discovered him under the trailer and, after jacking up the trailer to remove the claimant from under the tire, sought help in taking him to Dr. Andrew Ivy, a physician in Eureka. Dr. Ivy diagnosed the claimant as having suffered a fractured left clavicle and chest contusions. He prescribed medication for the pain and put McIntyre’s arm in a sling. Two days later he set the fractured clavicle in a cast and x-rayed it. He saw the claimant several more times to check the claimant’s progress, the last time being June 15; on that occasion, he advised the claimant to return in one month for another x-ray. Dr. Ivy’s records indicate that McIntyre did not return one month later. Dr. Ivy never did remove the claimant’s cast and it was not until McIntyre suffered a second work-related injury in 1988 that Dr. Ivy saw him again.

As a result of the 1987 injury, McIntyre missed approximately three months of work. He and his wife agreed with the employer that McIntyre’s wife would perform his regular job duties during this time, in return for which the employer would pay McIntyre his usual wage.

On May 15, 1988, McIntyre was injured in a second industrial accident arising out of his employment with Glen Lake Irrigation District. While standing in waist-deep water attempting to clear a beaver dam from a ditch, he pulled a small log out of the ditch and turned to throw it over his right shoulder when he felt a “pop” in his back. He immediately felt a pain in his neck and right shoulder area, and noticed numbness and tingling in his right arm. The claimant finished the work day and returned to work the next day.

The soreness continued, however, so he reported the injury to his employer and went to see Dr. Clay McDonald, a chiropractor in Eureka. Dr. McDonald referred McIntyre to Dr. Ivy. Upon examining the claimant on May 23, 1988, Dr. Ivy found him to have pain in the right shoulder area when he turned his head to the right. Dr. Ivy also found that the right rotation of McIntyre head caused a sensation going down McIntyre’s right arm into the fingers. Dr. Ivy made the following diagnosis:

“I thought he had done something in his neck by that sudden motion, that pinched one of his cervical nerves, and therefore I gave him a collar to wear and I gave him some cortisone, a good dose to take. And at that date he brought Doctor McDonald’s X-rays which showed a slight degeneration of the disc between cervical 5 and 6 with some spurring, and I assumed that was probably the source of his problem.”

Dr. Ivy saw McIntyre again on May 27, 1988. The claimant returned to work on June 1, 1988. He ceased working June 12,1988, because of pains in his neck, right shoulder and right arm, including tingling and numbness.

Dr. McDonald, the chiropractor in Eureka, referred McIntyre to Dr. Stephen Martini in Kalispell. Dr. Martini has no board certification but limits his practice to “spine rehabilitation.” During his first visit with the claimant on July 12, 1988, Dr. Martini obtained a history from McIntyre which included a description of the 1988 injury, but not the 1987 injury; that history reflected that McIntyre noticed pain in the low thoracic area toward the end of the day on which the May, 1988 injury occurred. Dr. Martini assessed the claimant’s problems as right thoracic outlet syndrome (TOS), cervical spondylosis and a possible bulging cervical disc. On August 17, 1988, his assessment continued to include cervical spondylosis and a bulging cervical disc, but made no mention of TOS. Dr. Martini was not advised of the 1987 injury until April 20,1989. Occupational therapist Tim Tracy also obtained a history from McIntyre in July, 1988; again McIntyre made no mention of the 1987 injury when indicating problems with his right arm and shoulder.

For reasons not entirely clear on the record, McIntyre went to see Dr. Richard Nelson, a neurologist in Billings, Montana, in November, 1988. Dr. Nelson obtained a history of both the 1987 and 1988 injuries and diagnosed cervical, lumbosacral sprain syndrome, a bulging disc and right TOS. Later, in a June 1, 1989 letter to the claimant’s attorney, Dr. Nelson stated:

“Since the thoracic outlet syndrome is placed in that same exact anterior cervical spine taht [sic] the fracture took place, it is more likely than not that this was, indeed, the origin of his thoracic outlet syndrome. With regard to his neck syndrome he has osteoarthritic spurring and bulged disc which is causing some thecal indentation in the neck and no one would be able to tell when that occurred, in either the first or the second accident.”

In November, 1989, Dr. Martini stated by letter to the claimant’s attorney that, due to the trauma involved in the first accident, it was his opinion that the TOS was “most consistent with the mechanism of injury surrounding the first incident.” He further recommended that the claimant enroll in the Spinal Rehabilitation Program.

McIntyre entered the Kalispell Regional Hospital Spinal Rehabilitation Program on January 15, 1990. In the admission history, Dr. Martini recorded that McIntyre had suffered a fractured right clavicle in 1987 and had, at the time of that occurrence, experienced “right upper extremity numbness and discomfort.”

Trial was held in the Workers’ Compensation Court on May 23, 1990. The medical evidence and testimony of Dr. Ivy and Dr. Martini were entered by depositions. The Workers’ Compensation Court entered its Findings of Fact and Conclusions of Law and Judgment on October 18, 1990, ruling that the claimant had failed to causally relate the TOS to his 1987 injury by a preponderance of the evidence. The Workers’ Compensation Court recognized that it was without jurisdiction to consider the 1988 injury at that time; therefore, it could not establish any disability entitlements.

The first issue is whether the Workers’ Compensation Court erred in concluding that the claimant’s TOS did not result from his 1987 injury. We note that the question before this Court is not whether a 1987 injury occurred; nor is it whether the claimant’s TOS was proved by a preponderance of the medical evidence. The question the claimant presented to the Workers’ Compensation Court is whether the 1987 injury caused his TOS.

We begin our analysis by considering the question of what standard of review to apply. The claimant argues that this Court should review the Workers’ Compensation Corut’s decision based upon a preponderance of the evidence rather than utilizing the usual substantial credible evidence test. This argument is based on the fact that the medical testimony has been entered into evidence by deposition and we, therefore, sit in as good a position as the Workers’ Compensation Court to judge the weight to be given to such record testimony. The claimant is correct as to the medical evidence on a stand alone basis.

As we have often and consistently stated, the standard of review for decisions of the Workers’ Compensation Court is whether substantial credible evidence exists to support the court’s decision. Roadarmel v. Acme Concrete Co. (1989), 237 Mont. 163, 772 P.2d 1259; O’Brien v. Central Feeds (1990), 241 Mont. 267, 786 P.2d 1169. Where medical testimony is offered by deposition, however, we have held that this Court sits in as good a position as the Workers’ Compensation Court to judge the weight to be given that testimony. Roadarmel 237 Mont. at 168, 772 P.2d at 1262. Thus, the claimant is correct that this Court may review and weigh the medical deposition testimony.

This independent review standard does not apply to our review of the entirety of the case before the Workers’ Compensation Court and that court’s overall decision, however. As we stated in Sciuchetti v. Hurt Construction:

“Claimant points out that because all of the medical testimony in this case was by deposition, this Court is in as good a position as the Workers’ Compensation Court to judge the weight to be given that testimony. (Citation omitted.) While that standard of review is correct, this Court will nevertheless uphold the lower court if there is substantial credible evidence to support its conclusion.”

Sciuchetti v. Hurt Construction (1989), 238 Mont. 170, 174, 777 P.2d 308, 311. Thus, this Court’s review of the medical depositions must be overlaid onto an encompassing review of the Workers’ Compensation Court’s decision under the substantial credible evidence standard. This result is both obvious and necessary when we consider that other important evidence — in this case, the testimony of both the claimant and his spouse — was before the Workers’ Compensation Court as oral testimony; this is particularly important where, as here, the medical histories on which the doctors so heavily relied also were provided by the claimant himself. The Workers’ Compensation Court remains in the best position to determine the credibility and weight to be given to live testimony.

In Snyder v. San Francisco Feed and Grain (1987), 230 Mont. 16, 748 P.2d 924, we reviewed the evidence introduced by medical deposition and found “the medical evidence, together with other evidence” was “in stark contrast with” the conclusion of the Workers’ Compensation Court. (Emphasis added.) Snyder at 25, 748 P.2d at 929. Lest we create another standard of review to muddy the waters, we note that “stark contrast” in Snyder was merely a creative way of stating that there was not substantial evidence to support the Workers’ Compensation Court’s decision in that case. It is not this Court’s function to determine whether there is sufficient evidence to support contrary findings. O’Brien at 272, 786 P.2d at 1172.

Thus, in reviewing the decision in the case at bar, we will not substitute our judgment for the Workers’ Compensation Court if there is substantial credible evidence to support its conclusion that the claimant did not prove the TOS to be causally related to the 1987 injury. We find such evidence in the record.

The evidence shows that Dr. Ivy was McIntyre’s only treating physician for the 1987 injury. Dr. Ivy testified that McIntyre never complained of TOS symptoms (pain and numbness in the right shoulder, arm and hand) prior to the 1988 injury. Dr. Ivy was also the first medical doctor to examine him after his 1988 injury. Finally, Dr. Ivy stated clearly that he could not relate the TOS to the 1987 injury since the TOS was on the right side and the fractured clavicle was on the left.

Dr. Nelson’s opinion, set forth in his June 1, 1989 letter to claimant’s attorney, was based on an examination of claimant conducted one and a half years after the 1987 injury and a medical history provided entirely by McIntyre. Furthermore, Dr. Nelson expressed the belief that the 1987 injury was “more likely than not” the origin of his TOS because the TOS “is placed in that same exact anterior cervical spine taht [sic) the fracture took place.” McIntyre suffers from right TOS, which is not placed in the “same exact” area as the left clavicle which was fractured in the 1987 accident.

The evidence also shows that Dr. Martini was not aware of the 1987 accident until April, 1989, almost two years after it had occurred and approximately nine months after he diagnosed the right TOS in July, 1988. Dr. Martini admitted that in assigning causation of injuries to the two separate accidents he relied almost entirely on what McIntyre reported to him. And although Dr. Martini correctly indicated in his office notes on April 20, 1989, that McIntyre had fractured his left clavicle in 1987, he incorrectly reported that McIntyre was suffering from right TOS as a result of a fractured right clavicle when admitting him for inpatient spine rehabilitation in January, 1990.

The fact that Dr. Martini relied so heavily on McIntyre’s narrations and recountings of the 1987 and 1988 injuries makes it clear why the claimant’s oral testimony, although not medical evidence, was an important factor in the Workers’ Compensation Court’s decision and must result in this Court basing its overall review on the substantial credible evidence test. McIntyre’s credibility and the weight to be given to his testimony are judgments to be made by the Workers’ Compensation Court; that credibility, as determined by the Workers’ Compensation Court, appropriately may carry over into the credibility of the doctors’ diagnoses based on the claimant’s statements.

The claimant claims to have experienced numbness and pain in the right shoulder and arm prior to the 1988 injury, but admits that he did not report any of these symptoms to any physician until after the 1988 accident. Indeed, the claimant did not advise either Dr. Martini or Mr. Tracy of the 1987 injury when he saw them regarding the 1988 injury and did not suggest to them at that time that the right shoulder and arm symptoms predated the 1988 injury. In addition, McIntyre claims the 1988 injury did not immediately bother him, while Dr. Ivy testified that McIntyre reported immediate numbness in his right shoulder and arm after the 1988 injury.

The weight to be given to the totality of the testimony and evidence is a determination to be made by the Workers’ Compensation Court, not this Court. As that court concluded:

“[Claimant's medical history from 1987 to May, 1988 does not include any ongoing problems with his right arm. Indeed, it appears that most, if not all of claimant’s complaints regarding the numbness and tingling in the arm originate after the 1988 injury as evidenced in nearly all of the medical records. ... given the history and complaints recorded by the physicians before any dispute arose in this case, the medical opinion of causation relating thoracic outlet to the fractured clavicle when anatomically the former is on the right and the latter the left, and the fact that claimant did not complain of or seek medical treatment for the thoracic outlet symptoms until after the 1988 injury, we are convinced that he has failed to causally relate the thoracic outlet to the 1987 event. (Emphasis added.)”

The claimant argues that Dr. Ivy’s testimony lacked the proper foundation necessary for admissible evidence regarding expert opinion. He asserts that the Workers’ Compensation Court gave too much weight to Dr. Ivy’s testimony regarding TOS causation.

The determination of admissibility of expert testimony rests solely within the discretion of the trial court. Krohmer v. Dahl (1965), 145 Mont. 491, 402 P.2d 979. Furthermore, it is for the trier of fact to give whatever weight it sees fit to expert testimony. Biegalke v. Biegalke (1977), 172 Mont. 311, 564 P.2d 987. The Workers’ Compensation Court did not abuse its discretion in considering Dr. Ivy’s testimony.

From the foregoing review of the record, we find that substantial credible evidence exists to support the decision of the Workers’ Compensation Court.

The second issue is whether McIntyre is entitled to temporary total disability benefits for the three-month period following his 1987 injury.

The Workers’ Compensation Court concluded that the claimant was not entitled to temporary total disability benefits. We agree.

Temporary total disability is defined in § 39-71-116(20), MCA, as a condition that “results in total loss of wages.” As a result of an arrangement between himself, his wife and his employer, the claimant continued to receive his regular wage during that three-month period. The claimant would have us believe that since it was his wife who performed the work, it was his wife who was paid and not him. The record does not support this contention. While both the claimant and this Court might question the wisdom of the arrangement entered into by him, the wages were nonetheless paid to McIntyre.

It is unnecessary to address the remaining two issues the claimant raises since he has failed to relate his current disability to the 1987 injury and since there has been no award of benefits as a result of his appeal.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES WEBER and McDonough concur.

JUSTICE TRIEWEILER

dissenting.

I respectfully dissent from the opinion of the majority.

In this case, the defendant conceded in the pretrial order that the claimant had been injured during the course of his employment on May 9,1987. The dispute related to the extent of injury and whether or not the claimant sustained any permanent disability as a result of that injury. The issue, as framed in the final pretrial order signed by both parties, was as follows:

“1. What is the nature and extent of the claimant’s permanent disability arising from his injuries of May 9, 1987, and what are the benefits to which the claimant is entitled?”

According to the workers’ compensation statute in effect at the time of the claimant’s injury, disability must be proven by a preponderance of medical evidence. Section 39-71-116(12), (13), and (19), MCA(1985). Therefore, the trial court’s decision had to be based upon the preponderance of the medical evidence.

In this case, all of the medical evidence was by deposition or written document. There was no medical evidence provided by any live witness.

The traditional reason for deferring to trial judges and juries in the resolution of factual disputes is that they are in a better position to observe the demeanor of witnesses and observe physical evidence where it is relevant. However, we have frequently recognized that that traditional notion of deference makes no logical sense in a case where the Workers’ Compensation Court’s decision is based upon the same medical documents or depositions that are before us in this Court. We have repeatedly held that in that situation we are in as good a position to evaluate the medical testimony as the trial judge. Brown v. State Compensation Ins. Fund, 231 Mont. 158, 752 P.2d 171 (1988); Shupert v. Anaconda Aluminum Co., 215 Mont. 182, 188, 696 P.2d 436, 439 (1985); Hert v. J.J. Newberry Co., 178 Mont. 355, 360, 584 P.2d 656, 659 (1978).

In this case, any objective analysis of the medical evidence can lead to only one conclusion — that the claimant’s thoracic outlet syndrome was caused by the crush injury that he sustained on May 9, 1987.

Of the two medical witnesses whose testimony was offered by deposition, one testified that he was not in a position to express an opinion, and the other expressed an unqualified opinion in favor of the claimant. The only other opinion expressed was in the medical report of Richard A. Nelson, M.D. It was also his opinion that the claimant’s TOS was caused on May 9,1987.

Even if this Court had no independent obligation to review that medical evidence (which is not the case), and chose simply to defer to the trial judge, there was no medical evidence of any type to support the trial judge’s finding that the claimant was not injured on May 9, 1987.

In support of its decision, the majority opinion states that Dr. Ivy could not relate the TOS to the 1987 injury, and implies that he had a reason for believing otherwise. However, what Dr. Ivy actually said was that he had no opinion because he had never examined nor treated the claimant for that condition. His actual testimony was as follows:

“So what I am telling you, I can’t render an opinion regarding his thoracic outlet syndrome because I haven’t examined him for it. And the only pain he had down his arm that I know about is the pain that he had on 5/23, which was a pinched nerve as far as I’m concerned. It had nothing to do with thoracic outlet syndrome.”

Dr. Ivy’s inability to express any opinion regarding causation hardly rises to the level of substantial medical evidence in support of the trial court’s finding.

Dr. Ivy admitted that he was not qualified to express an opinion regarding the cause of the claimant’s thoracic outlet syndrome because he had not treated him for that condition. Dr. Ivy’s testimony was properly objected to and should not have formed the basis for the Workers’ Compensation Court’s decision.

On the other hand, Steven M. Martini, M.D., who diagnosed and has treated the claimant for his thoracic outlet syndrome, expressed a very unequivocal opinion regarding its causation. He explained that TOS results when the nerves and major vessels, which pass between the first rib and the clavicle (in the area of the sternum or chest), sustain a compression or irritation from injury. He also testified:

“The first injury, which was well documented as a crush injury to the chest, to a high degree of medical certainty, would have caused his thoracic outlet syndrome.
“It’s consistent historically with what we know about thoracic outlet syndrome, i.e. local trauma to the area of the brachial plexus. And the medical record and the patient’s account would reflect that was the case.”

The majority attempts to minimize the impact of Dr. Martini’s uncontroverted medical opinion by pointing out that in one of his medical entries he referred to a fracture of the right clavicle, rather than correctly referring to the left clavicle. However, that discrepancy is totally irrelevant. The clavicles are separated by no more than a couple of inches. The claimant’s earliest report of injury to his employer following the May 9, 1987, incident, clearly indicates that the trauma was to his chest area, and that he sustained contusions over that entire area.

Dr. Richard A. Nelson’s opinion was also admitted into evidence, not, as the majority has suggested, because of the Workers’ Compensation Court’s liberal consideration of the medical evidence, but because there was no objection to it by the defendant. Dr. Nelson also clearly stated an uncontested opinion that the claimant’s thoracic outlet syndrome resulted from the crush injury on May 9, 1987.

“[I]t seems from reviewing my records and the information you provided here regarding your question of which of his injuries is more likely to have caused the problem with thoracic outlet syndrome, that would certainly have been the 5/9/87, injury because it was of such a high magnitude in fracturing the clavicle at the same time. Since the thoracic outlet syndrome is placed in that same exact anterior cervical spine that the fracture took place, it is more likely than not that this was, indeed, the origin of his thoracic outlet syndrome.”

The majority dismisses Dr. Nelson’s opinion, based on its misunderstanding of anatomy. The majority concludes that because the TOS was on the right and the fractured clavicle on the left, Dr. Nelson was mistaken in his conclusion that both injuries occurred in the same place. However, Dr. Nelson’s reference to anterior cervical spine does not refer to right or left, it merely refers to the front part of the body, rather than the posterior or back side.

The majority opinion also fails to point out that in Dr. Nelson’s November 9, 1988, evaluation, which was attached to Dr. Martini’s deposition without objection, Dr. Nelson clearly pointed out, when referring to the claimant’s history that:

“[H]e was jacking up a trailer for a tire flat and the jack slipped and the tire came down and hit him in the left shoulder, anterior cervical chest region causing a fracture of the left collarbone and subsequent to this he developed headaches about two days later and had a cast put in place and he continued to live with this pain with a stiff neck. ...”

(Emphasis added.)

It is clear that Dr. Nelson was aware that the claimant’s fractured clavicle was on the left side.

The majority incorrectly concludes that the Workers’ Compensation Court was free to disregard all of the uncontroverted medical testimony because of other “substantial” evidence which the court had before it. On the one hand, the majority agrees that where medical evidence is by deposition or document, this Court is in as good a position as the trial court to evaluate that testimony. However, in the next breath the majority emasculates that standard of review by finding that:

“The medical depositions must be overlaid onto an encompassing review of the Workers’ Compensation Court’s decision under the substantial credible evidence standard.”

I suppose the only way to reconcile these two apparently conflicting standards of review is to say that where this Court wants to reverse the Workers’ Compensation Court it will review the medical deposition testimony independently, and where it wants to affirm the Workers’ Compensation Court, without being accountable for the decision, it will overlay the medical depositions with the rest of the testimony. However, in this case, the rest of the testimony provides no support for the trial court’s decision.

The only people who testified at trial were the claimant and his wife. Neither of them were impeached nor contradicted in any significant aspect of their testimony, and nothing in their testimony provided any basis for the trial court’s conclusion that the claimant was not disabled from his May 9, 1987, injury. Furthermore, the Workers’ Compensation Court’s conclusion was not based upon any reservation that it had about the claimant’s or his wife’s credibility. It was based upon that court’s misunderstanding of the physical evidence.

The trial court concluded that because the claimant fractured his left clavicle, and his thoracic outlet symptoms were on the right side, they could not have both resulted from the same accident. However, the evidence is to the contrary. Dr. Ivy testified that when he saw the claimant one-half hour after the May 9, 1987, accident, he was told that a trailer fell on the claimant’s chest. The claimant described the trailer as a steel lowboy with three axles which weighed approximately 2000 pounds. Dr. Ivy also testified, and his records indicate, that in addition to the fractured left clavicle, the claimant sustained contusions to his chest.

Dr. Martini explained that thoracic outlet syndrome results when the nerves and major vessels, as they pass between the first rib and the clavicle, sustain a compression or irritation from injury. Those nerves and vessels, which would account for symptoms on the claimant’s right side, are within inches of the fracture that occurred to his left clavicle. It is extremely doubtful that the 2000 pound trailer which crushed the claimant’s chest was capable of such discrete damage that it could have injured his left clavicle without causing any damage several inches further to the right on his chest.

In short, whether we apply the appropriate standard of review, which is whether the claimant had proven his claim by a preponderance of the evidence, or if we simply review the record to determine whether there was substantial evidence to support the Workers’ Compensation Court’s finding that the claimant was not disabled, this case should be reversed.

I also dissent from the majority’s second opinion which concludes that the claimant was not entitled to temporary total disability benefits for the three month period following his 1987 injury.

It was uncontradicted that the claimant was placed in a cast for his clavicle fracture two days after his injury, and that he was unable to do the heavy physical labor involved in maintaining ditches for the irrigation district by which he was employed.

It was the secretary for the claimant’s employer who requested that the claimant’s wife perform his job so that they could continue to pay him, instead of providing disability benefits. The claimant had no prior experience with workers’ compensation claims.

Following his injury, he did not return to work, at all,, for three weeks. After that time, he simply rode in a truck to give instructions to his wife. All of the work which he had previously performed as part of his job was performed by his wife. Any payment made by his employer was payment for his wife’s services. To hold that the employer can avoid paying disability benefits, during a period that the claimant was obviously unable to work because of a work related injury, by putting his name on the check that belonged to his wife, is to exalt form over substance and encourage future mischief by employers and insurers.

If the claimant had not been married, or if his wife had been otherwise employed and unavailable to perform his duties, his employer would have had to hire a third person and pay that person directly. Certainly, under those circumstances, the defendant would not claim, and this Court would not find, that the insurer could avoid its obligation to pay total disability benefits during the three months that the claimant was unable to return to work. Allowing the defendant to avoid those same obligations under the circumstances in this case, gives this Court’s blessing to a subterfuge and sham.

The claimant’s wife was a separate person and entitled to be treated that way, rather than as an appendage of her husband, for purposes of compensation for her work.

For these reasons, I would reverse the decision of the Workers’ Compensation Court and remand for a determination of the claimant’s disability rate, the extent of his permanent partial disability, and whether he is entitled to have any or all of his disability benefits converted to a lump sum.

JUSTICES HARRISON and HUNT concur.


author: JUSTICE McDONOUGH

text:
    JERRY GRINDE, Petitioner and Respondent, v. STATE OF MONTANA, Defendant and Appellant.
    No. 90-463.
    Submitted on briefs May 10, 1991.
    Decided June 18, 1991.
    249 Mont. 77.
    813 P.2d 473.
    Marc Racicot, Atty. Gen., James L. Yellowtail, Peter Funk, Asst. Attys. Gen., Helena, Rae V. Kalbfleisch, Toole County Atty., Merle Raph, Deputy Toole County Atty., Shelby, for defendant and appellant.
    Chas. L. Jacobson, Conrad, for petitioner and respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

The State of Montana appeals from an order of the Ninth Judicial District, Toole County, that required the return of Jerry Grinde’s driver’s license. The District Court held that the seizure of Grinde’s license pursuant to § 61-8-402, MCA, was illegal because Toole County police officers lacked justification to stop his automobile. We affirm.

The sole issue on appeal is:

Whether the District Court erred when it ordered the return of Jerry Grinde’s driver’s license.

On March 17, 1990, at approximately 11:30 p.m., Jerry Grinde (Grinde) was driving a silver Corvette eastward on Main Street in Shelby, Montana. Toole County Sheriff’s deputies Ken DeCock and Ron Kinyon were approaching from the opposite direction at the time. As the patrol car approached, Grinde made a right hand turn onto Maple Avenue. After Grinde’s car was no longer in sight, the deputies heard “a squealing of tires and the sound of an engine revving up.” Because they observed no other vehicles in the immediate vicinity, the deputies attributed the noise to Grinde’s Corvette.

The police officers followed Grinde onto Maple Street and observed the vehicle as it turned into an alley. Based upon their belief that Grinde “may have been carelessly or recklessly driving up Maple Avenue” the police activated their fights. Grinde turned into a parking lot and got out of his automobile. According to Deputy DeCock, Grinde appeared unsteady as he left his car and approached the police vehicle. The deputies required Grinde to perform several field sobriety maneuvers. Apparently Grinde failed each test.

Grinde was placed under arrest and taken to the Toole County Sheriff’s Department. He was informed of the provisions of the implied consent statute, § 61-8-402, MCA. He refused to take a breath test until he was allowed to speak with an attorney. Deputy DeCock informed him that he did not have a right to speak with an attorney before being required to take a breath test. Grinde continued in his refusal and the officer treated his response as a refusal to take the breath test. Officer DeCock then seized his driver’s license under the authority of § 61-8-402(3), MCA.

On April 16,1990, Grinde filed a petition in District Court seeking reinstatement of his driving privileges pursuant to § 61-8-403, MCA. A hearing was held and the District Court found that the arresting officers lacked justification for stopping Grinde’s vehicle. It then ordered the return of Grinde’s driver’s license. This appeal followed.

Section 61-8-402, MCA, provides that any person who operates a motor vehicle upon ways of this state open to the public shall be deemed to have given consent... to a chemical test for the purpose of determining the alcoholic content of his blood if arrested by a peace officer for driving ... a vehicle under the influence of alcohol.

A person can refuse to submit to this test. However, upon refusal the arresting officer is directed to seize his driver’s license. The Department of Justice is then required to suspend that person’s driving privileges for a period of at least 90 days. See §§ 61-8-402(3) and (5), MCA. Upon seizure of his license, a person can obtain judicial review of the administrative suspension of his driving privileges. Review of this action is, however, limited by statute. Section 61-8-403, MCA, provides that judicial review of administrative actions taken pursuant to the implied consent statute is limited to the following issues:

“(1) whether the arresting officer had reasonable grounds to believe the following:
“a) that the petitioner had been driving or was in actual physical control of a vehicle;
“b) that the vehicle was on a way of this state open to the public; and
“c) that the petitioner was under the influence of alcohol”
“(2) whether the individual was placed under arrest; and
“(3) whether the individual refused to submit to a chemical test.” Gerhardt v. State (1989), 238 Mont. 90, 775 P.2d 1261.

The State maintains that the District Court exceeded the mandate of this statute when it considered the validity of the initial stop of Grinde’s car. According to its argument, the court must limit itself to the three issues recited above. Because the statute contains no reference to the validity or reasonableness of the initial stop, its decision to return Grinde’s driver’s license was in error and must be reversed.

We disagree. In Armstrong v. State (1990), [244 Mont. 420,] 47 St.Rep. 2057, 800 P.2d 172, we held that in order to meet the requirements of § 61-8-403, MCA, the State must show that the police officer had reasonable grounds to make an investigatory stop of the defendant’s vehicle. Unfortunately, we did not adequately set forth the rationale for this conclusion. This omission on our part has caused some confusion on the part of the parties to this action.

As stated above, a court reviewing the suspension of a driver’s license is limited to only three issues. It must determine first, whether the arresting officer had reasonable grounds to believe that the petitioner was in control of a vehicle upon a public way while he was under the influence of alcohol. Second, it must determine whether the individual was placed under arrest. And third, it must determine whether the individual refused to submit to a chemical test.

In the instant case, there is no doubt that Grinde was in control of a vehicle upon a public way. Nor do we doubt that the police officers, after having stopped Grinde’s vehicle and observing his demeanor, had reasonable grounds to believe he was intoxicated. The parties agree that Grinde refused to submit to a chemical test.

Therefore, the only issue in dispute is whether Grinde was placed under arrest. Under the facts of this case, the police officers must first have had a “particularized suspicion of some kind of wrong doing” before they could legally stop Grinde’s vehicle. State v. Gopher (1981), [_Mont._,] 631 P.2d 293. Without this suspicion the initial stop was illegal and the resulting arrest invalid. If the arrest is invalid the second element articulated in § 61-8-403, MCA, cannot be met and the State cannot legally suspend Grinde’s license. For an arrest to be established, the right to make an arrest must be established. To say otherwise is to declare that the arrest requirement of the statute could be established even though a police officer lacked any legal justification to take a person into custody or hold him in temporary detention.

The District Court found, and we agree, that the sheriff’s deputies were not justified in stopping Grinde’s car. Throughout their personal observation of Grinde’s car, they saw no evidence of erratic driving. On the contrary when they observed Grinde’s vehicle, it was being driven in a safe and prudent manner, well within the speed limit. There was, therefore, no particularized suspicion of wrongdoing on his part and their stop of his vehicle was illegal. The resulting arrest was similarly illegal and the District Court properly returned his driver’s license.

The meaning of this decision should be clearly understood. As stated in Armstrong, a police officer making a legal stop is not prevented from further determining that the driver is under the influence of alcohol, placing him under arrest and then requesting that the driver submit to a chemical test under § 61-8-402, MCA.

A legal stop can occur when a police officer has a particularized suspicion comprised of (1) objective data from which an experienced officer can make certain inferences; and (2) a resulting suspicion that the occupant of a certain vehicle is or has been engaged in wrongdoing or was a witness to criminal activity. State v. Gopher (1981), [_ Mont._,] 631 P.2d 293. Legal stops can also occur in noncriminal, noninvestigatory contexts. For example nothing prevents a police officer from making a stop to deliver an emergency message, assist a stranded motorist or warn of an impending danger. A police officer can legally stop a vehicle for a bona fide reason which is related to functions within his authority and duties. See People v. Davis (1977), 39 Colo.App. 63, 565 P.2d 1347. If, after making such a stop, the police officer reasonably believes the driver to be under the influence of alcohol, he can make an arrest and require submission to a chemical test.

Affirmed.

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


author: JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DONALD GLENN IMLAY, Defendant and Appellant.
    No. 90-493.
    Submitted on briefs March 28, 1991.
    Decided June 18, 1991.
    Rehearing Denied July 23, 1991.
    249 Mont. 82.
    813 P.2d 979.
    Billy B. Miller, Miller & Cook, Great Falls, for defendant and appellant.
    Marc Racicot, Atty. Gen., Elizabeth L. Griffing, Asst. Atty. Gen., Helena, Patrick L. Paul, Cascade County Atty., Kim Schulke, Chief Deputy County Atty., Great Falls, for plaintiff and respondent.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

Following a jury trial, the defendant, Donald Glenn Imlay, was convicted in District Court of sexual assault, a felony, in violation of § 45-5-502, MCA. Based on that conviction, he was sentenced by the District Court to five years in the Montana State Prison. However, all but 35 days of that sentence were suspended, and the defendant was placed on formal probation, under certain conditions, including the condition that he enroll in and complete a sexual therapy program. When the defendant enrolled in, but was unable to complete the sexual therapy program, his suspended sentence was revoked and he was ordered imprisoned at the Montana State Prison for the remainder of his five-year term. The defendant appeals from the District Court’s order revoking his suspended sentence. We reverse the order of the District Court.

On appeal, the defendant raises several issues. We find the following issue, as restated by this Court, to be controlling:

Can a criminal defendant, as a condition of a suspended sentence, be compelled to admit that he is guilty of the crime of which he has been accused and convicted?

FACTUAL BACKGROUND

On May 9,1989, the State of Montana was granted leave to file an Information charging the defendant with three counts of sexual assault, a felony. On September 5, 1989, that Information was amended so that the acts complained of were combined into one count. The basis for the Information was the allegation that on April 11, 1989, the defendant fondled the vaginal area of a seven-year-old girl while she was present at his Great Falls grocery store. The Information was based on statements made by the girl to her teacher after she arrived at school several hours late.

This case went to trial on September 11, 1989, and the jury returned its verdict on September 13, 1989, finding the defendant guilty of the crime charged.

Prior to sentencing, the usual pre-sentence investigation was conducted, including a psychological evaluation of the defendant. As a result of that investigation, the District Court found that the defendant was a 56-year-old widower who had raised four adult children and had an extensive history of full-time employment. He had no prior criminal record, nor was there any prior history of any complaints of similar conduct by the defendant.

The psychologist who examined the defendant, as part of the pretrial investigation, concluded that he was suffering from post-traumatic stress syndrome and was in a severely depressed state of mind. He recommended that the defendant not be incarcerated, but that he be involved in a mental health therapeutic program with psychiatric work and counseling.

Based upon its pre-sentence investigation, the District Court found that the defendant was not a dangerous person, that his offense was an isolated incident, and that it would not be repeated in the future. The court also found that the defendant was suffering from medical problems, and that incarceration in the State Prison was not an appropriate penalty.

The defendant’s sentencing hearing was held on October 17,1989. On that same date, the District Court sentenced the defendant to five years in the Montana State Prison. However, execution of the sentence was suspended, except for the 35 days he had already served in the Cascade County Jail. He was placed on formal supervised probation under the rules and regulations of the Adult Probation and Parole Bureau and was ordered to enroll in a sexual therapy program at his own expense, and to continue in that program until it was no longer deemed necessary by his therapist. The specific sentence provision regarding sexual therapy was as follows:

“The defendant is to immediately enroll in a sexual therapy program at his own expense and continue said program until his therapist deems further counseling and therapy unnecessary. The Court would recommend that the defendant obtain his therapy at the sexual offender treatment program located in Helena, Montana.”

As conditions of his suspended sentence, the defendant was also ordered to pay any counseling costs incurred by the victim and prohibited from being around children unless another adult was present.

On June 8,1990, the County Attorney petitioned the District Court for revocation of the defendant’s suspended sentence for two reasons: (1) the State contended that the defendant was not gainfully employed; and (2) the State alleged that the defendant had not completed the sexual treatment program which was a condition of his suspended sentence.

The defendant denied violating the terms of his suspended sentence, and an evidentiary hearing was conducted on August 31,1990. At that hearing, the defendant’s probation officer, and the counselor to whom he had been referred for sexual therapy, testified. The defendant also testified on his own behalf.

The defendant testified that at that time he was living with his mother in Absarokee where he had moved following trial because he no longer had a business, a job, or any income.

He had interviewed for and sought work as an electrician, and as a custodian, but was unable to satisfy the physical requirements for either job. He suffered from high blood pressure and degenerative joint disease.

When unable to find employment, the defendant had applied for vocational rehabilitation through the State Department of Social and Rehabilitation Services. After an independent medical examination, he had apparently qualified for those services and was being retrained by SRS to do leather work which he was performing at his mother’s home. He had sold some of the work and had orders for more items which he had been unable to complete.

He testified that in order to comply with the court’s order regarding enrollment in a sex offender program he contacted his probation officer, who referred him to Mike Sullivan, a counselor in Billings, Montana. He scheduled and attended a number of counseling sessions, but was finally advised that he did not qualify for Sullivan’s treatment program because he would not admit that he was guilty of the crime of which he had been charged and convicted. He then talked to Ron Silvers, the director of the sexual offender program in Helena, and was told that he would not be admitted to that program either.

Michael Sullivan testified that he is a licensed clinical social worker practicing in Billings, and was director of a program known as South Central Treatment Associates. He has a bachelor’s degree in psychology, a master’s degree in associate work, and is a licensed social worker in the State of Montana. At the time of the defendant’s hearing, Sullivan had been involved in the treatment of sexual offenders for approximately five years.

The defendant first saw Mr. Sullivan, by referral from his probation officer, on November 20, 1989, and saw him on five subsequent occasions over the next six months. Each appointment was scheduled by the defendant. The defendant attended every scheduled appointment. He was described by Sullivan as pleasant, friendly, never angry or abusive, and always punctual.

Sullivan performed a series of tests on the defendant. There were no indications in those tests that the defendant was capable of violent conduct. However, from those tests and his contacts with the defendant, Sullivan formed the impression that the defendant was not amenable to outpatient sexual offender treatment because he did not admit that he committed a sexual offense. Sullivan testified that the defendant’s denial made it impossible for him to treat him in their program. He also testified that there was no other outpatient sexual therapy program in the State of Montana which would treat a sexual offender who denied that he was guilty of sexual misconduct.

He confirmed that after the defendant had been rejected from his program, the defendant had sought treatment from Ron Silvers at the sexual therapy program in Helena, and that he (Sullivan) had been contacted by Silvers to determine why the defendant had been unacceptable for the Billings program.

Sullivan recommended a form of inpatient treatment, which is more structured and continuous, because in such a program it is more difficult for a patient to maintain defensive postures, such as denial. He testified that the only inpatient treatment program in the State of Montana was the one at the Montana State Prison.

Based upon the foregoing evidence, the District Court found that the State’s complaint about the defendant’s lack of employment was not well founded. The court found that the defendant was making a bona fide effort to maintain employment and was actively pursuing vocational rehabilitation.

However, regarding the State’s second basis for its petition to revoke the suspended sentence, the court made the following conclusion:

“The Court concludes that the defendant has violated the condition of his suspended sentence by not enrolling (not being amenable to treatment and hence, not acceptable into an out-patient treatment program) in a sex offender treatment program and said violation was proven by a preponderance of the evidence.
"... Because the only viable alternative is an in-patient treatment program, the Court concludes that the defendant’s suspended sentence must be revoked and the defendant ordered to serve FIVE (5) years in the Montana State Prison with credit for 35 days.
“It is recommended to the Warden of the Prison that the defendant not be eligible for parole until he has completed the sexual offender treatment program at the Prison. However, it is also recommended that upon completion of the program, the defendant be considered for parole. The defendant is designated as a non-dangerous offender for parole eligibility purposes.”

The defendant, through his attorney, objected at the time that the sentence was revoked on the grounds that the District Court was conditioning suspension of the defendant’s sentence on an admission of guilt, and cited authority to the District Court that it could not force the defendant to plead guilty. The issue previously stated, therefore, was properly preserved for appeal.

DISCUSSION

While the District Court’s order revoking the defendant’s suspended sentence is predicated upon the defendant’s failure to enroll in a sex offender treatment program, it is clear that the defendant’s incarceration at the Montana State Prison is directly related to his refusal to admit that he committed a crime. The defendant made every other effort possible to enroll in and complete a sex offender treatment program. He sought a referral from his probation officer. He followed up that referral by scheduling not one, but six consecutive appointments. He attended every appointment in a timely fashion, and other than admitting his guilt, cooperated in every manner possible while at those appointments. When he was rej ected by the counselor with whom he had spent six months, he tried to find another sex offender treatment program that would admit and treat him, and was rejected a second time. Finally, he was advised that there was no outpatient sex offender treatment program in Montana that would accept him.

It is clear that the only thing the defendant has failed to do is admit that he committed the crime for which he was convicted. Whether or not punishment can be augmented because of a defendant’s refusal to admit guilt, even after he has been convicted, is a question on which the federal courts are not in agreement. Furthermore, this Court has made contradictory statements in answer to that same issue.

The majority of federal courts of appeal which have addressed this issue follow the decision of the United States Court of Appeals for the Fifth Circuit in Thomas v. United States, 368 F.2d 941 (5th Cir. 1966).

In that case, prior to imposing sentence, the district court judge advised the defendant that if he confessed his guilt the court would take his confession into consideration in determining the length of his sentence, but that if he persisted in his denial of guilt, that denial would also be taken into account. Because the defendant chose to continue denying guilt, he was sentenced to the maximum term permitted by law. That sentence was vacated by the Fifth Circuit, based on its conclusion that the alternatives presented to the defendant violated his Fifth Amendment right not to be a witness against himself. The Court of Appeals acknowledged that the defendant had already been convicted, but pointed out:

“It must be remembered that, at the time of his allocution, Thomas had not been finally and irrevocably adjudged guilty. Still open to him were the processes of motion for new trial (including the opportunity to discover new evidence), appeal, petition for certiorari, and collateral attack. Indeed, appeal is now an integral part of the trial system for finally adjudicating the guilt or innocence of a defendant.
“The two ‘ifs’ which the district court presented to Thomas placed him in a terrible dilemma. If he chose the first ‘if,’ he would elect to forego all of the above-noted post-conviction remedies and to confess to the crime of perjury, however remote his prosecution for perjury might seem. Moreover, he would abandon the right guaranteed by the Fifth Amendment to choose not to be a witness against himself, not only as to the crime of which he had been convicted, but also as to the crime of perjury. His choice of the second ‘if’ was made after the warning that the sentence to be imposed would be for a longer term than would be imposed if he confessed. From the record, it is clear that an ultimatum of a type which we cannot ignore or approve confronted Thomas. Truly, the district court put Thomas between the devil and the deep blue sea.’
“Thomas suffered the consequences for choosing the second ‘if’... in the form of a longer prison term. When Thomas received harsher punishment than the court would have decreed had he waived his Fifth Amendment rights, he paid a judicially imposed penalty for exercising his constitutionally guaranteed rights. Upon this ground alone, we think that his sentence is ‘subject to collateral attack,’ and have little doubt as to the authority and duty of the district court to vacate the sentence.”

Thomas, 368 F.2d at 945-46. In accord with Thomas, are Scott v. United States, 419 F.2d 264 (D.C.Cir. 1969); United States v. Laca, 499 F.2d 922 (5th Cir. 1974); United States v. Wright, 533 F.2d 214 (5th Cir. 1976). In Poteet v. Fauver, 517 F.2d 393 (3d Cir. 1975), the United States Court of Appeals for the Third Circuit concluded that augmentation of a post-conviction sentence based on refusal to admit guilt violated the due process clause of the Fourteenth Amendment of the United States Constitution.

In the past, this Court has given apparent approval to the Thomas rule. Although the case of In the Matter of Jones, 176 Mont. 412, 578 P.2d 1150 (1978), was decided on other grounds, we cited with approval the following rule of law in that case:

“While the sentencing judge may take into account his belief that the defendant was not candid with the court this is to be distinguished from the rule that a sentence may not be augmented because a defendant refuses to confess or invokes his privilege against self-incrimination. Fox v. State, (1977 Alaska), 569 P.2d 1335, 1338. See: United States v. Garcia, (3rd Cir., 1976), 544 F.2d 681, 685; United States v. Acosta, (5th Cir., 1975), 509 F.2d 539, cert. denied, 423 U.S. 891, 96 S.Ct. 188, 46 L.Ed.2d 122 (1975); United States v. Rogers, (5th Cir., 1974), 504 F.2d 1079, 1085, cert. denied, 422 U.S. 1042, 95 S.Ct. 2655, 45 L.Ed.2d 693 (1975).”

The only Federal Circuit which appears to have arrived at a contrary conclusion is the Ninth Circuit.

In Gollaher v. United States, 419 F.2d 520 (9th Cir. 1969), the Ninth Circuit Court of Appeals considered the Thomas decision and chose not to follow it. In that case, the defendant was also given a stiffer sentence because of his refusal to admit guilt after he was convicted, and challenged that sentence as a violation of his Constitutional privilege against self-incrimination. However, the Ninth Circuit, on balance, placed greater importance on the criminal justice system’s objective of rehabilitation, than on a defendant’s continued right to deny guilt. In rejecting the Thomas rationale, the Ninth Circuit has stated:

“This case presents a dilemma which every trial judge faces at the time of sentence. It is almost axiomatic that the first step toward rehabilitation of an offender is the offender’s recognition that he was at fault. In the present state of the criminal law, there is no doubt that punishment is still a consideration in the imposition of sentence, especially where non-violent or economic crimes are involved. But to the extent that rehabilitation is the objective, no fault can be found of the judge who takes into consideration the extent of a defendant’s rehabilitation at the time of sentence.
“Gollaher chose to insist upon his innocence. The judge, bound by the jury’s verdict and apparently also being firmly convinced by the evidence that Gollaher was guilty, proceeded accordingly. He had before him a man unwilling to take the first step toward rehabilitation and he imposed sentence accordingly. Gollaher’s Fifth Amendment rights were not infringed.”

Gollaher, 419 F.2d at 530-31.

Our prior decision in State v. Donnelly, 47 St.Rep. 1600, 244 Mont. 371, 798 P.2d 89 (1990), appears to be in accord with the Ninth Circuit’s decision in Gollaher. In Donnelly, we were asked to decide whether a defendant, who was already imprisoned at the Montana State Prison, was denied his right to avoid self-incrimination when he was denied parole until he completed a sex offender course at the Prison. Interestingly, the evidence in that case was that in order to be accepted into the inpatient sexual offender program at the Prison, that defendant also had to admit that he committed the crime of which he was convicted. (Therefore, if the trial court’s objective in this case was to obtain treatment for Donald Imlay, imprisonment does not appear to be the solution.) At any rate, we found that denying probation under those circumstances did not violate the defendant’s privilege against self-incrimination. Our decision appears to have been based on the following conclusion:

“Here, defendant’s decision to remain silent is a tactical one, not a compelled one. Defense counsel argues that, in reality, defendant’s testimony is in fact compelled since it is a prerequisite for parole. It is possible the defendant may be paroled sooner if he admits to incest than if he remains silent. However, defendant may remain silent if he so chooses, and still possibly be paroled at some future date based on good behavior.
“Furthermore, failure to admit to incest will not result in certain penalty to defendant, it will only result to preserve his current ineligible parole status. In this case, the district court ordered that the defendant was ineligible for parole until the satisfaction of a condition subsequent. The condition subsequent is partially satisfied by defendant’s successful completion of the sexual offender program at Montana State Prison. Failure to satisfy this condition subsequent, i.e., failure to satisfactorily complete the sex offender program, will not result in a penalty, but will merely result in defendant’s continued ineligibility for parole.”

Donnelly, 47 St.Rep. at 1607-08, 244 Mont. at 382, 798 P.2d at 96.

Without debating the merits of the foregoing conclusion from Donnelly, it is clear that in this case the defendant is being subjected to a penalty that he would not otherwise be subjected to if he would simply admit his guilt. That penalty is that he serve time in the Montana State Prison.

Even though the defendant has already been convicted of the crime that he denies, our system still provides, as noted in the Thomas decision, for opportunities to challenge that conviction. For example, the defendant still had the right to challenge his conviction, based on newly discovered evidence, or by collateral attack. These are important rights guaranteed to every defendant under our criminal justice system, but would be rendered meaningless if the defendant could be compelled to admit guilt as a condition to his continued freedom. Furthermore, while such a defendant would be foreclosed from invoking the protection of such procedures to establish his innocence, the reliability of an admission of guilt under such circumstances would be highly suspect. In addition, by admitting guilt in this case, the defendant would have to abandon his right guaranteed by the Fifth Amendment, not only as to the crime for which he has been convicted, but also to the crime of perjury. He testified in his own defense during his trial and denied committing the offense with which he was charged.

Under these circumstances, and absent any grant of immunity, we believe that the better reasoned decisions are those decisions which protect the defendant’s constitutional right against self-incrimination, and which prohibit augmenting a defendant’s sentence because he refuses to confess to a crime or invokes his privilege against self-incrimination. To the extent that our decision in Donnelly is inconsistent with this opinion, that part of the Donnelly decision is overruled.

The sentence of the District Court is vacated and this case remanded to the District Court for further proceedings not inconsistent with this opinion.

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