author: JUSTICE LEAPHART JUSTICE TRIEWEILER

text:
    MARILYN HOLLISTER, Plaintiff and Appellant, v. JOHN FORSYTHE, a public officer, and ROSEBUD COUNTY, a Montana Political Subdivision, Defendants and Respondents.
    No. 95-537.
    Submitted on Briefs March 14, 1996.
    Rehearing Denied July 11, 1996.
    Decided June 17, 1996.
    53 St.Rep. 524.
    277 Mont. 23.
    918 P.2d 665.

      For Appellant: K.D. Peterson; Peterson & Schofield, Billings.
    For Respondents: K. Kent Koolen, Nancy Bennett; Moulton, Bellingham, Longo & Mather, Billings; Steven J. Lehman; Crowley, Haughey, Hanson, Toole & Dietrich, Billings.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Marilyn Hollister (Hollister) appeals from the Rosebud County, Sixteenth Judicial District Court’s dismissal of her 42 U.S.C. § 1983 claim against Rosebud County and John Forsythe (collectively “Forsythe”). We affirm.

The sole issue before us is whether the District Court erred in dismissing Hollister’s 42 U.S.C. § 1983 claim based on res judicata.

BACKGROUND

The background facts of this case are presented in Hollister v. Forsythe (1995), 270 Mont. 91, 92-93, 889 P.2d 1205, 1206. Hollister initially filed a complaint for deprivation of rights in the United States District Court for Montana. The United States District Court granted Forsythe’s motion for partial summary judgment and dismissed Hollister’s federal claims with prejudice. She appealed the United States District Court’s judgment. The Ninth Circuit Court of Appeals affirmed in Hollister v. Forsythe (9th Cir. 1994), 22 F.3d 950. She then filed a complaint for wrongful discharge and other torts in Montana state district court. Pursuant to Forsythe’s motion to dismiss, the state district court dismissed her suit based on the statute of limitations. We reversed in Hollister, 889 P.2d 1205.

In Hollister, we held that Hollister’s claims in state court were not barred by the statute of limitations because:

under Montana’s renewal statute, § 27-2-407, MCA, use of the word “termination” refers to the ultimate termination which occurs after final appellate action. Accordingly, the one-year period begins to run from the date that the time for appeal expires or, in the event of an appeal, from the date of the remittitur or judgment of the appellate court.

Hollister, 889 P.2d at 1208. Because her state court complaint was filed within one year of the Ninth Circuit’s decision on appeal, it was within the statutory period.

On remand, Montana’s Sixteenth Judicial District Court considered the remaining issues in Forsythe’s motion to dismiss. Under Rule 12(b)(6), M.R.Civ.R, Forsythe moved for dismissal for failure to state a claim upon which relief can be granted. Forsythe’s motion to dismiss raised the following issues: Whether Hollister’s claims outside the Montana Wrongful Discharge from Employment Act (WDFEA), §§ 39-2-901 through -915, MCA, were preempted by WDFEA and, whether her 42 U.S.C. § 1983 claim was barred by res judicata. The court dismissed all claims outside of WDFEA and ordered the case to proceed only on Hollister’s claim of wrongful discharge under WDFEA. In the present appeal, we are called upon to review the Sixteenth Judicial District Court’s holding that Hollister’s claim under 42 U.S.C. § 1983 was barred by the Ninth Circuit’s holding that Hollister had no property interest in her job thus there could be no constitutional violation and no claim under 42 U.S.C. § 1983. Hollister, 22 F.3d 950.

In the mean time, in federal court, Hollister filed a Rule 60, Fed.R.Civ.P., Motion for Relief from Judgment based on our decision in Boreen v. Christensen (1994), 267 Mont. 405, 884 P.2d 761. In Boreen, we disagreed with the Ninth Circuit’s reasoning regarding Hollister’s potential property right in her employment with Rosebud County. Boreen, 884 P.2d at 769; see Hollister, 22 F.3d at 953. The federal district court denied her motion and the matter is currently pending before the Ninth Circuit Court of Appeals.

STANDARD OF REVIEW

A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim which would entitle her to relief. Lockwood v. W.R. Grace & Co. (1995), 272 Mont. 202, 207, 900 P.2d 314, 317.

Amotion to dismiss under Rule 12(b)(6), M.R.Civ.R, has the effect of admitting all well-pleaded allegations in the complaint. In considering the motion, the complaint is construed in the light most favorable to the plaintiff, and all allegations of fact contained therein are taken as true.

Lockwood, 900 P.2d at 317 (quoting Boreen, 884 P.2d at 762). The determination that a complaint fails to state a claim upon which relief can be granted is a conclusion of law. We review a district court’s conclusions of law to determine whether the court’s interpretation of the law is correct. Lockwood, 900 P.2d at 317.

DISCUSSION

Did the District Court err in dismissing Hollister’s 42 U.S.C.

§ 1983 claim based on res judicata?

The doctrine of res judicata prevents a party from re-litigating a matter that the party has already had an opportunity to litigate. Loney v. Milodragovich, Dale & Dye, P.C. (1995), 273 Mont. 506, 510, 905 P.2d 158, 161; Greenwood v. Steve Nelson Trucking, Inc. (1995), 270 Mont. 216, 219, 890 P.2d 765, 767. Res judicata is based on the public policy that there must be some end to litigation. Loney, 905 P.2d at 161; Wellman v. Wellman (1983), 205 Mont. 504, 508, 668 P.2d 1060, 1062. The doctrine of res judicata states that a final judgment on the merits by a court of competent jurisdiction is conclusive as to causes of action or issues thereby litigated, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction. State ex rel. Harlem Irrigation Dist. v. Montana Seventeenth Judicial Dist. Court (1995), 271 Mont. 129, 132, 894 P.2d 943, 944-45; Meagher County Newlan Creek Water Dist. v. Walter (1976), 169 Mont. 358, 361, 547 P.2d 850, 852.

A claim is res judicata when four criteria are met: the parties or their privies are the same; the subject matter of the claim is the same; the issues are the same and relate to the same subject matter; and the capacities of the persons are the same in reference to the subject matter and the issues. Loney, 905 P.2d at 161; In re Marriage of Blair (1995), 271 Mont. 196, 203, 894 P.2d 958, 963. The most important of the four criteria for res judicata is the identity of issues. Marriage of Blair, 894 P.2d at 963; In re Marriage of Harris (1980), 189 Mont. 509, 513,6 16 P.2d 1099, 1101. Additionally, the doctrine of res judicata bars not only issues which were previously litigated, but also issues which could have been litigated in the prior proceeding. Loney, 905 P.2d at 161; see Harlem, 894 P.2d at 946.

Hollister concedes that the first and fourth criteria of res judicata are met. However, she argues that the second and third criteria are not met. She alleges that the issue is not the same because the federal courts only addressed the threshold question of whether Hollister had a property interest in her county employment. She alleges that in light of our decision in Boreen, 884 P.2d 761, the federal courts erred in concluding that, under Montana law, Hollister did not have a property interest in her employment. Because the court did not proceed beyond that threshold question, Hollister also argues that her claims have not been judged on their merits.

Forsythe counters that the issue in Hollister’s state court action is identical to the issue previously raised and decided by the federal court. We agree. In federal court, Hollister alleged that Forsythe’s termination of her employment violated her constitutional rights to substantive and procedural due process. In state court, Hollister realleges the same claim and seeks the same remedy. Forsythe argues that Boreen does not alter the fundamental issue in Hollister’s state court § 1983 action, that is, whether there is a property interest in employment. Boreen, 884 P.2d at 762-63. Moreover, even if the federal court erroneously determined that there is no property interest in employment under Montana law, res judicata still applies. Mills v. Lincoln County (1993), 262 Mont. 283, 285, 864 P.2d 1265, 1267; Brennan v. Jones (1936), 101 Mont. 550, 565, 55 P.2d 697, 701.

Hollister argues that the subject matter presented to the courts differs because the instant case involves her civil rights, constitutional rights and tort claims, not whether she has a property interest in her employment. However, the subject matter in both actions is the termination of Hollister’s employment as a secretary for Rosebud County. In Harlem, we held that the same subject matter that gave rise to the initial complaint was also the basis for the subsequent causes of action. Harlem, 894 P.2d at 945. The same is true here, the underlying subject matter in both federal and state forums is Hollister’s termination from employment.

Beyond the criteria of res judicata, Hollister argues that she has a right to have the merits of her case heard and that in granting summary judgment to Forsythe, the United States District Court did not decide the merits of her civil rights, constitutional rights and tort claims. In federal court, Hollister alleged federal question jurisdiction pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 1983. In determining the threshold issue of federal jurisdiction, the federal court first examined Hollister’s § 1983 claim. The federal court determined that, to bring a § 1983 claim based on a violation of procedural due process, Hollister had to first establish that a property interest protected by the Fourteenth Amendment was affected by Forsythe’s termination decision. The federal court held that Hollister had not established a property interest in her employment, thus the court granted summary judgment to Forsythe on the issue of Hollister’s § 1983 claim. Having found no federal question jurisdiction, the federal court dismissed Hollister’s federal claims with prejudice and dismissed her pendant state claims without prejudice stating “the parties may simply resubmit the remaining issues to the appropriate state court.” Hollister contends that because the federal court found, at the threshold, that she could not establish a property interest in her employment, her claims have not been decided on their merits.

In Smith v. Schweigert (1990), 241 Mont. 54, 59, 785 P.2d 195, 198, we held that summary judgment is a decision on the merits because it is a conclusive determination of a legal issue presented by the facts of a case. See Harlem, 894 P.2d at 945. In Mills, we reaffirmed this proposition that summary judgment is, indeed, a final judgment on the merits and that the res judicata bar is, therefore, applicable. 864 P.2d at 1267.

InMiiis, the United States District Court granted Lincoln County’s motion for summary judgment based on immunity under § 2-9-111, MCA. Soon thereafter, the legislature significantly amended § 2-9-111, MCA, such that the county’s immunity defense would be negated. Mills did not file a motion for reconsideration in federal court, instead she filed a complaint against the county in state district court. The case came to trial and the jury found that the county was not negligent. Sua sponte, the district court ordered a new trial. On appeal, we held that Mills’ state court action was barred by res judicata.

The point to be noted is that, right or wrong, the federal court entered summary judgment against Mills; that judgment became final by Mills’ failure to pursue the available remedy in federal court; and she is now bound by that judgment.

Mills, 864 P.2d at 1267 (emphasis added).

Throughout her appeal, Hollister argues that the federal court’s holding that she has no property interest in employment is wrong. She bases her contention on our decision in Boreen, 884 P.2d 761. In Boreen, we discussed Hollister, 22 F.3d 950, in which the Ninth Circuit concluded that Montana’s Wrongful Discharge from Employment Act does not create, in at-will employees, a property interest in their jobs. Hollister, 22 F.3d at 953. We stated “we simply do not agree with the court’s application of our prior case law to the facts in Hollister.” Boreen, 884 P.2d at 769. Despite our disagreement with the Ninth Circuit’s conclusion regarding Hollister’s potential property interest in her employment, we are in no position to change the Ninth Circuit’s decision. As previously stated in Mills, Hollister is bound by the judgment, right or wrong, of the federal court in which she brought her claim. Mills, 864 P.2d at 1267. If parties are allowed to commence new lawsuits on litigated claims and issues every time a subsequent change in the law might, arguably, alter the result of the first litigation, it is safe to say that there will be few “final judgments” ever entered. Mills, 864 P.2d at 1267-68.

Hollister, in federal district court, litigated the question of whether she had a property interest sufficient to sustain a § 1983 claim. The federal district court ruled that she did not, and that decision was affirmed by the Ninth Circuit. Hollister, 22 F.3d 950. Although, in Boreen, we subsequently disagreed with the conclusions reached by the federal courts, the doctrine of res judicata bars us from considering this litigated claim. Mills, 864 P.2d at 1267. As is her right, Hollister has sought Rule 60, Fed.R.Civ.R, relief in federal court in light of our decision in Boreen. That matter is pending appeal to the Ninth Circuit. The outcome of that appeal, however, will not affect the application of the res judicata principles which we now find controlling of the state court claim under § 1983.

In the instant case, as in Mills, we hold that the federal court summary judgment was a final judgment on the merits and that res judicata bars Hollister’s state court action under § 1983.

Affirmed.

JUSTICES ERDMANN, GRAY and NELSON concur.

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority opinion based on my conclusion that the interests of fundamental fairness preclude the application of the judicially-created doctrine of res judicata under the circumstances in this case.

This case is distinguishable from Mills v. Lincoln County (1993), 262 Mont. 283, 864 P.2d 1265, which is the principle authority relied on by the majority. In Mills, the Federal District Court dismissed the plaintiff’s complaint by summary judgment based on this Court’s decisions regarding the liability of local governments. After that dismissal, the Legislature clarified its intent and in effect changed the law. We held that a subsequent change in the law did not preclude the application of res judicata to a later action filed in state district court. Mills, 262 Mont. at 286, 864 P.2d at 1267.

In this case, there was no change in the law subsequent to the Federal District Court’s dismissal of Marilyn Hollister’s claim made pursuant to 42 U.S.C. § 1983. The Federal District Court and the Ninth Circuit Court of Appeals simply misapplied Montana law and arrived at an incorrect conclusion about the merits of her claim. See Boreen v. Christensen (1994), 267 Mont. 405, 419, 884 P.2d 761, 769. Hollister’s civil complaint was dismissed by those courts based on the conclusion that she had no property interest in her employment with the County. Whether she had a property interest was properly an issue of state law. However, that issue was not certified to this Court for determination. Instead, those courts misapplied our prior decisions and simply arrived at an incorrect conclusion.

Under these circumstances, absent reconsideration of its decision by the Ninth Circuit Court of Appeals, Hollister will never have an opportunity to present the true merits of her civil rights claim. To avoid such a substantial injustice by blind adherence to technical principles, I would follow the rationale of the Federal District Court in Boucher v. Dramstad (D. Mont. 1981), 522 F. Supp. 604. In that case, that court held that:

[ñ]es judicata is a principle of public policy to be applied so as to render rather than deny justice. The rule is intended to serve the aims of fairness and efficient judicial administration and need not be applied mechanically where those ends would not be served. Therefore, application of the rule must be rejected when the application would result in manifest unfairness. This Circuit has acknowledged that the doctrine must give way to the overriding concern of simple justice.
... The decision by the Montana Supreme Court regarding the unique question of law with which it was presented resulted in the plaintiff not having an opportunity to present at trial the merits of his action. To deny the plaintiff the opportunity to present his constitutional claims in the present § 1983 action would result in the plaintiff never having had the opportunity to have the events which transpired at the time of his injury evaluated by a court of law. This court concludes that the interests of justice mandate that the plaintiff be given that opportunity. ... In the interests of fundamental fairness and simple justice this court concludes that the judicially created doctrine of res judicata should not be mechanically applied to the present situation but must be prudently applied so as not to defeat those same principles upon which the doctrine is founded.

Boucher, 522 F. Supp. at 607, 608 (footnotes omitted).

Based on the cited rationale, the Federal District Court allowed Ronald S. Boucher to proceed in Federal District Court with a claim based on 42 U.S.C. § 1983, even though it was based on facts identical to those involved in a previously dismissed state negligence action. The Federal District Court arrived at that result because the state court dismissal involved a procedural issue of first impression which the plaintiff could not have anticipated and thereby avoided. Boucher, 522 F. Supp. at 608.

In State ex rel. Harlem Irrigation District v. District Court (1995), 271 Mont. 129, 133, 894 P.2d 943, 945, we declined to apply the manifest unfairness principle from Boucher to the facts in that case. However, we did not reject the concept under all circumstances.

I conclude that the circumstances in this case call for application of the “manifest unfairness” principle and on that basis decline to apply judicially-created principles of res judicata to bar Hollister’s claim.

In this case, Hollister is out of court, through no fault of her own, based on a misapplication of the law in federal court. To deny her the opportunity to present her claim would mean that the facts she alleged would never be examined by a court of law in the context of her constitutional claims. Under these circumstances, the majority decision does not “serve the aims of fairness and efficient judicial administration” but instead “mechanically” applies an inappropriate judicial formula. Boucher, 522 F. Supp. at 607.

For these reasons I dissent from the majority opinion.


source: Caselaw Access Project

author: JUSTICE NELSON

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. TERRY LEE HAGBERG, Defendant and Appellant.
    No. 95-345.
    Submitted on Briefs January 25, 1996.
    Decided June 18, 1996.
    53 St.Rep. 528.
    277 Mont. 33.
    920 P.2d 86.

      For Appellant: Craig R. Buehler, Lewistown.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena; Thomas P. Meissner, Fergus County Attorney, Lewistown.
   JUSTICE NELSON

delivered the Opinion of the Court.

Defendant Terry Lee Hagberg (Hagberg) appeals from the jury verdict finding him guilty of the charges of felony assault and misdemeanor resisting arrest and from the Tenth Judicial District Court, Fergus Comity’s sentence and judgment. We affirm.

ISSUES

1. Did the District Court err in denying Hagberg’s motion to dismiss the information on grounds that the alleged facts failed to state an offense?

2. Did the District Court err in denying Hagberg’s motion to dismiss alleging that he had been denied his right to a speedy trial?

3. Did the District Court err in admitting evidence of Hagberg’s prior acts?

BACKGROUND

At approximately 10:20 p.m. on February 28, 1994, Hagberg and his wife, Eleanor, stopped to get something to eat at the Hackamore Supper Club in Lewistown, Montana. After learning that the restaurant was closed, Hagberg and Eleanor returned to their truck. The bar and restaurant employees heard yelling and banging on the truck and called the sheriff’s department for assistance. Hagberg left before Deputy Sheriff Jack Barney and Detention Officer Troy Eades arrived. After hearing the description of the vehicle over the radio, Highway Patrol Officer Mantooth spotted the vehicle, turned around, and caught up with it. The vehicle pulled out to pass a car, stayed in the passing lane, and while in the no-passing zone, passed another car and continued over a hill.

After Officer Mantooth turned on his top lights, the vehicle swerved a little bit and pulled off the road. Officer Mantooth pulled in behind the Hagberg’s and got out of his car. As he started walking toward the vehicle, Eleanor got out of the driver’s side. Officer Mantooth asked her to get back in the vehicle and roll down her window, to which she responded that it did not work. Officer Man-tooth reached in the door with his left hand and rolled down the window, stating that it did indeed work. Hagberg then said “why don’t you let her shut the door?” Officer Mantooth then flipped his flashlight over to glance at Hagberg. As he did so, he noticed an empty holster on the seat between them. He could clearly see that the holster did not have a gun in it. Officer Mantooth looked back over to Hagberg who had bent over with his arms between his legs and his hands by the floor. Officer Mantooth noticed that Hagberg had a glazed look “like nobody was home... it spooked you” and smelled like an alcoholic beverage.

At that time, Officer Mantooth realized that he needed to back off from the situation; he told Eleanor that when she found her driver’s license, registration, and insurance to bring them back to his patrol car. Officer Mantooth radioed to Deputy Barney for back up assistance because he thought he had a situation with a man with a gun. Eleanor started the vehicle and pulled forward as though she was going to leave, but stopped after Officer Mantooth hit his airhom. Officer Mantooth testified that when the vehicle pulled forward, he thought he was going to have a pursuit. However, the Hagberg’s stopped and waited in their vehicle and Officer Mantooth waited in his car until assistance arrived.

When Deputy Barney and Troy Eades arrived, Officer Mantooth told them that he thought Hagberg had a gun, that there was an empty holster on the seat, that Eleanor reacted nervously, that he thought Eleanor was under the influence of alcohol, and that he could not do anything with Hagberg or Eleanor until he was sure that he was safe and that Hagberg no longer had a gun. Based on his training in defending against hostile situations, Officer Mantooth determined that he would approach the vehicle from the passenger’s side, see if he could get Hagberg to come out and if he would not come out voluntarily, he would have to pull Hagberg out and put him down on the ground.

Officer Mantooth approached the passenger side of the vehicle, opened the door, and said “I need you to step out.” Hagberg attempted to close the door on Officer Mantooth’s shoulder while his other hand was still down between his knees. Officer Mantooth then grabbed Hagberg, spun him out of the truck, and brought him down on the

ground. Hagberg had a loaded black single-action revolver in his hand. Officer Mantooth grabbed the hammer of the revolver to prevent the gun from discharging. As Deputy Barney came around the back of the truck, Officer Mantooth was pulling Hagberg out of the truck. Deputy Barney helped wrench the gun from Hagberg. He unloaded and secured the gun while Officer Mantooth tried to handcuff Hagberg. Officer Mantooth and Troy Eades had to physically restrain Hagberg and wrestle his hands behind his back in order to handcuff him.

Officer Mantooth then heard Eleanor screaming that she wished that she had not left her gun at home. Eleanor had locked the door and would not open it. After Deputy Barney reached in from the passenger’s side and removed the keys from the ignition, Eleanor unlocked the door but still refused to come out. Officer Mantooth removed her from the truck and placed her in handcuffs. Eleanor yelled “Honey, they are violating me” to which Hagberg returned a rude comment and threatened to kill the officers. The officers took Hagberg and Eleanor to the Fergus County jail.

On March 30,1994, the Fergus County Attorney filed an information in the Tenth Judicial District Court, charging Hagberg with felony assault and misdemeanor resisting arrest. The State supported its motion for leave to file the information with an affidavit setting forth the facts of the charges. At his arraignment, Hagberg entered a not guilty plea to each charge. The State filed a motion to revoke bail alleging that Hagberg had violated the conditions of his release by committing additional crimes and by using alcohol. At the July 25,1994hearing on the motion, Hagberg admitted the violations and stated that he would voluntarily enter an inpatient chemical dependency program. The District Court entered an order for the program which was subsequently rescheduled.

On July 25, 1994, the State filed a notice of intent to introduce evidence of other acts of Hagberg’s which occurred on March 4,1979 and on October 24, 1993. Hagberg filed an objection to the use of the other acts evidence. On September 28,1994, the District Court issued an order releasing Hagberg from bail and setting the trial for November 9, 1994. For reasons not reflected in the District Court file, the trial did not occur as scheduled in November. The district court judge’s term ended in January 1995, therefore the new district court judge held a scheduling conference where he reset the trial for April 3,1995. On March 1,1995, Hagberg filed a motion to dismiss for lack of a speedy trial.

On March 10,1995, Hagberg filed another motion to dismiss, this motion alleging that the arrest had been illegal. Following a hearing, the District Court denied this second motion to dismiss. The State withdrew its request to introduce evidence of Hagberg’s 1979 incident, yet restated its request to introduce evidence of Hagberg’s 1993 incident. On the first day of trial, the District Court ruled that the State could introduce evidence of the 1993 incident.

The jury returned a guilty verdict on both the felony assault charge and the misdemeanor resisting arrest charge. The District Court sentenced Hagberg to 44 days in the Fergus County Jail for which Hagberg received credit for 44 days he previously served; 3 years in the custody of the Department of Corrections, all of which were suspended; and 2 years in the custody of the Department of Corrections for use of a weapon. Hagberg appeals from the jury verdict and from the sentence and judgment entered by the District Court.

DISCUSSION

1. Did the District Court err in not dismissing the information on the grounds that the facts failed to state a crime?

Hagberg’s arguments are twofold. First, he argues that his arrest was illegal. Second, he argues that the facts did not rise to the level of an offense. The State counters that the arrest was a legal warrantless arrest and that the affidavit in support of the information set forth sufficient facts to support a felony assault conviction. We review a motion to dismiss to determine whether the district court abused its discretion in granting or denying the motion. State v. Pinkerton (1995), 270 Mont. 287, 290, 891 P.2d 532, 535.

Section 45-5-202, MCA, provides that “A person commits the offense of felony assault if he purposely or knowingly causes: (a) bodily injury to another with a weapon; (b) reasonable apprehension of serious bodily injury in another by use of a weapon; or (c) bodily injury to a peace officer or a person who is responsible for the care or custody of a prisoner.”

Hagberg relies solely on State v. Merseal (1975), 167 Mont. 412, 538 P.2d 1366, for his argument that the facts fail to support the charge of felony assault. In Merseal, we determined whether substantial evidence supported the verdict. We held that the record was deficient of credible evidence in support of the conclusion that the defendant’s conduct placed the officer in reasonable apprehension or fear. Merseal, 538 P.2d at 1368. Specifically, the officer presented inconsistent testimony on whether he would have to shoot at the defendant if the defendant had reached for his gun. Without first searching the car for a gun, the officer rode in the defendant’s car when he knew that the defendant probably had his gun in the car. Merseal, 538 P.2d at 1368.

Merseal is distinguishable from the instant case in that there was no conflicting testimony regarding the salient facts that support Officer Mantooth’s reasonable apprehension of serious bodily harm by use of a weapon. Moreover, he did not put himself in a situation like the officer in Merseal. Officer Mantooth had merely walked up to Hagberg’s car to ask for Eleanor’s license and registration when he saw the empty holster on the seat and Hagberg sitting with his hands between his legs. While the affidavit supporting the information may not have been artfully and comprehensively drafted, it nonetheless recited sufficient facts to indicate a probability that Hagberg committed an offense. See State v. Ramstead (1990), 243 Mont. 162, 793 P.2d 802.

In State v. Misner (1988), 234 Mont. 215, 763 P.2d 23, we addressed the issue of whether there was sufficient evidence to convict the defendant of felony assault. In Misner, the essence of the defendant’s argument was that the victim neither saw nor came into close enough physical proximity to the gun. However, where the victim unequivocally testified to his apprehension of serious bodily injury, we concluded that it was not necessary that the victim personally observe the gun to experience reasonable apprehension of serious bodily injury. Misner, 763 P.2d at 25.

Similarly, Officer Mantooth unequivocally testified to his apprehension of serious bodily injury. He smelled alcohol, Hagberg sounded belligerent and had a glazed look on his face, there was an empty holster on the seat of the car, and Hagberg looked as though he was holding a gun out of Officer Mantooth’s sight. We conclude that Officer Mantooth had reason to be apprehensive of serious bodily injury and that the State had sufficient facts on which to charge Hagberg with felony assault.

Hagberg also claims that he was illegally arrested because he had not committed nor was committing an offense before Officer Mantooth pulled him from the car.

A peace officer may arrest a person when a warrant has not been issued if the officer has probable cause to believe that the person is committing an offense or that the person has committed an offense and existing circumstances require immediate arrest.

Section 46-6-311, MCA. Hagberg cites to Merseal to support his argument. However, Merseal did not involve a warrantless arrest. Moreover, in Merseal, we concluded that the facts may well have justified the officer drawing his weapon or placing the defendant under physical restraint although the facts may not have justified a conviction for felony assault. Merseal, 538 P.2d at 1368.

Contrary to Hagberg’s arguments, there is sufficient evidence to show that Officer Mantooth had reasonable apprehension of bodily injury from Hagberg’s weapon before pulling Hagberg out of the truck. Again, Hagberg’s glazed and spooky look, the involvement of alcohol, the empty holster, Officer Mantooth’s strong suspicions that Hagberg had a gun between his legs, and Hagberg’s demeanor created reasonable apprehension of serious bodily harm. Therefore, we hold that the District Court did not abuse its discretion in denying Hag-berg’s motion to dismiss.

2. Did the District Court err in denying Hagberg’s motion to dismiss alleging that he had been denied his right to a speedy trial?

Hagberg claims that the District Court failed to provide him with his constitutional right to a speedy trial. The State recognizes a defendant’s right to a speedy trial as guaranteed by the United States and Montana Constitutions, but contends that Hagberg was not denied that right.

The Sixth Amendment to the United States Constitution and Article II, section 24 of the Montana Constitution guarantee the right to a speedy trial to the accused in a criminal prosecution. State v. Thompson (1993), 263 Mont. 17, 31, 865 P.2d 1125, 1134. A speedy trial claim is a question of constitutional law. State v. Cassidy (1978), 176 Mont. 385, 388, 578 P.2d 735, 737. We review questions of law de novo to determine whether the court’s interpretation of the law is correct. Carbon County v. Union Reserve Coal Co., Inc. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686; Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

“This Court uses the test from Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, to determine whether a defendant’s constitutional right to a speedy trial has been violated.” State v. Matthews (1995), 271 Mont. 24, 27, 894 P.2d 285, 287. This test requires a balancing of the following four factors: 1) length of the delay; 2) reason for the delay; 3) assertion of the right by the defendant; and 4) prejudice to the defendant. We weigh all four factors in light of the surrounding facts and circumstances, engaging in a sensitive balancing of the defendant’s right to a speedy trial and the State’s interest in public justice. State v. Weeks (1995), 270 Mont. 63, 72, 891 P.2d 477, 482.

The threshold factor, length of the delay, determines whether a full speedy trial analysis is necessary. The initial determination concerning the length of delay is made without allocation of delay to either party. Thompson, 865 P.2d at 1134-35. If the length of delay is over 200 days, the delay is presumptively prejudicial and requires further analysis. This Court has not established a precise quantification of the triggering time due to the complexity of each case and a defendant’s active avoidance of trial. State v. Curtis (1990), 241 Mont. 288, 304, 787 P.2d 306, 316. In this case, the State concedes that the delay of 399 days is sufficient to raise a presumption of prejudice requiring further analysis.

In considering the second factor, reason for the delay, we allocate the delay by determining the delay attributable to each party. Thompson, 865 P.2d at 1135; Matthews, 894 P.2d at 287. In the instant case there are three segments of delay: 1) the period between the date of arrest and the first trial date (February 28, 1994 to August 22, 1994); 2) the period between the first trial date and the second trial date (August 22, 1994 to November 9, 1994); and 3) the period between the second trial date and the third trial date (November 9, 1994 to April 3, 1995). Hagberg contends that none of the delay is attributable to him. The State on the other hand contends that the time between Hagberg’s arrest on separate charges and the second trial date are attributable to Hagberg because the arrest led to revocation of his bail and the decision to undergo inpatient chemical dependency treatment. The State also argues that the remainder of the delay was institutional and should therefore be weighed less heavily against the State. The institutional delay was partially a result of the district court judge retiring and was not a result of oppressive pretrial tactics. Therefore, we conclude that the delay can be attributed to both Hagberg and the State but that the State’s delay was largely institutional and not a result of requests for continuances or impermissible pretrial tactics.

Hagberg satisfied the third factor, assertion of the right to a speedy trial, by filing a motion to dismiss a month before the trial. In considering the fourth factor, prejudice to the defendant, this Court has identified three factors in determining prejudice: 1) pretrial incarceration, 2) anxiety and concern, and 3) impairment of defense. Thompson, 865 P.2d at 1135. Impairment of the defense is the most critical of these three factors. Hagberg asserts that he was incarcerated for 66 days after his arrest and prior to trial. However, as the State contends and the District Court noted, only 7 of those 66 days were for Hagberg’s initial arrest, 28 of those days resulted from Hagberg’s voluntary admission into the chemical dependency treatment program and the remaining 31 days followed his subsequent arrest and bail revocation.

Hagberg also contends that he suffered from pretrial anxiety and concern yet his testimony did not elicit evidence of uncommon or extreme anxiety. Hagberg emphatically asserts that the delay impaired his defense. Specifically, Hagberg points out inconsistencies in the testimonies of the officers. However, Hagberg testified that the incident was still fresh in his memory, that witnesses were still available, and that in fact his defense had not been impaired by the passage of time.

In summary, although the delay in this case was quite long, under the circumstances, Hagberg was not able to show that the reasons for the delay were substantially the State’s or that the delay prejudiced his defense. In fact, Hagberg was responsible for much of the delay. Additionally, the State’s delay can be attributed to institutional factors such as the retirement of the district court judge and cannot be attributed to impermissible pretrial tactics for delay or requests for continuances. Accordingly, we conclude that the District Court correctly interpreted the law in denying Hagberg’s motion to dismiss based on the alleged lack of a speedy trial.

3. Did the District Court err in admitting evidence of Hagberg’s prior acts?

Hagberg contends that the District Court improperly admitted evidence of his prior acts. We review evidentiary rulings to determine whether the district court abused its discretion. State v. Pace (1995), 272 Mont. 464, 466, 901 P.2d 557, 559. The district court has broad discretion to determine whether evidence is relevant and admissible, and absent a showing of an abuse of discretion, the court’s determination will not be overturned. Pace, 901 P.2d at 559.

Rule 404(b), M.R.Evid., governs the admissibility of other crimes, wrongs, or acts. It states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

In State v. Just (1979), 184 Mont. 262, 267-68, 602 P.2d 957, 961, we held that the State had to meet four requirements before introducing evidence of other crimes, wrongs, or acts. We modified these requirements in State v. Matt (1991), 249 Mont. 136, 814 P.2d 52, setting forth the basis for admission of evidence of other crimes, wrongs, or acts as:

1) The other crimes, wrongs or acts must be similar.
2) The other crimes, wrongs or acts must not be remote in time.
3) The evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity with such character; but may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
4) Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury, considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Matt, 814 P.2d at 56.

First, the incident in the instant case is very similar to the incident in which Hagberg was involved in 1993. On October 24,1993, Highway Patrol Officer Cal Janes observed Hagberg swerve back and forth on the southbound on-ramp of Interstate 15. The pickup then came to a stop on the side of the highway. Hagberg got out and started to urinate on the highway. Officer Janes pulled up and approached Hagberg who was having difficulty standing and had to use the door of his pickup truck for stability. As Officer Janes asked Hagberg to walk to the rear of the pickup, Hagberg told Eleanor, who was in the passenger seat, to kill Officer Janes. Officer Janes grabbed Hagberg, marched him to the back of the pickup, searched him for weapons, handcuffed him, and placed him in the back seat of the patrol car. All of the weapons in the pickup were loaded. Officer Janes charged Hagberg with driving while under the influence of alcohol.

The District Court concluded that the incident was sufficiently similar to the charged offense, that the incident was sufficiently near in time to the charged offense, that the incident was probative of Hagberg’s intent during the charged offense, and that the probative value of the evidence was not outweighed by unfair prejudice to Hagberg. We agree.

A prior act need not be identical to the offense charged to be admissible under the similarity requirement of the Just rule. Moreover, we review the acts rather than the charges. State v. Brogan (1995), 272 Mont. 156, 166, 900 P.2d 284, 290. In the instant case, both incidents involved possible intoxication while driving late at night, both incidents involved loaded guns in the car, and importantly, both incidents involved Hagberg displaying hostility and resistance to the officers requiring them to respond defensively to a perceived threat to their safety.

Second, October 24,1993, and February 28,1994, the dates of the two incidents, are not remote in time. Third, the purpose of admitting the evidence of Hagberg’s prior acts was probative of Hagberg’s intent during the incident which led to the present charges. The prior act was relevant to Hagberg’s hostility toward the highway patrol officers who stopped his vehicle and was therefore probativé of Hagberg’s mental state during the assault. See State v. Matson (1987), 227 Mont. 36, 736 P.2d 971.

Finally, the District Court also correctly determined that the probative value of the prior acts evidence was not substantially outweighed by the danger of unfair prejudice to Hagberg. It is inevitable that the introduction of evidence of a prior crime will have some prejudicial effect on a defendant. State v. Anderson (1996) [275 Mont. 259], 912 P.2d 801, 804. “However, when the prior crime evidence meets the first three elements of the modified Just rule, the prior crime evidence necessarily carries great probative weight.” Anderson, 912 P.2d at 804. Weighing the probative value of the prior crime evidence against the prejudice to Hagberg and considering the first three requirements of admitting evidence of other acts, we conclude that the District Court did not err in allowing evidence of Hagberg’s prior act.

Affirmed.

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


author: JUSTICE NELSON JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MARY-HELEN COLLIER, Defendant and Appellant.
    No. 95-194.
    Submitted on Briefs January 18, 1996.
    Decided June 20, 1996.
    53 St.Rep. 534.
    277 Mont. 46.
    919 P.2d 376.

      For Appellant: John Keith, Great Falls.
    For Respondent: Joseph P. Mazurek, Attorney General, Barbara Harris, Assistant Attorney General, Helena; Brant Light, Cascade County Attorney, Great Falls.
   JUSTICE NELSON

delivered the Opinion of the Court.

Mary-Helen Collier was charged by information in the Eighth Judicial District Court, Cascade County, with solicitation of deliberate homicide. Pursuant to a plea agreement, Collier pleaded guilty to an amended charge of criminal endangerment. She was sentenced to eight years in the Women’s Correctional Facility and designated a dangerous offender for purposes of parole eligibility. Collier appeals her sentence and the District Court’s order denying her Motion to Dismiss for Lack of a Speedy Trial. We affirm.

Collier raises the following issues on appeal:

1. Did the District Court err in failing to dismiss the matter for lack of a speedy trial?

2. Did the District Court err in designating Collier a dangerous offender?

3. Did the District Court err in failing to find that Collier was unable to appreciate the criminality of her conduct?

4. Did the District Court err in ordering Collier to pay restitution?

5. Did the District Court err in permitting the County Attorney to argue facts at sentencing supporting the original charge of solicitation of deliberate homicide?

6. Did the District Court err in failing to release Collier or transfer her to a different detention facility due to conditions at the Cascade County jail?

Factual and Procedural Background

On September 27, 1993, Bridget Fackrell reported to the Great Falls Police Department that Collier had attempted to hire Fackrell and another individual to kill Collier’s ex-husband, Evan Danno. Fackrell claimed that several months earlier, while she and Collier roomed together, Collier repeatedly stated that she wished to have Danno killed so that she could be rid of him.

In early September, prior to her report to the police, Fackrell travelled to Idaho to attend a funeral. She returned to Great Falls with two friends, Travis Moreland and Carlton Taylor. When Fackrell told Moreland and Taylor of Collier’s desire to have Danno killed, Moreland suggested that they agree to do the job, take Collier’s money, then warn Danno of Collier’s plan.

Fackrell arranged a meeting between Collier, Moreland and Taylor wherein the parties agreed that Moreland would kill Danno as soon as Collier could arrange to be out of town with the children. Collier had recently moved back into Danno’s home where she was residing with Danno and their two daughters. The plan called for Moreland to enter Danno’s home early one morning while Collier and the children were away, kill Danno and make it look as though there had been a burglary. Collier agreed to pay Moreland $1500 to kill Danno.

A few days after the meeting, Collier informed Fackrell that she would be attending her uncle’s funeral in Kalispell and that she wanted Danno killed while she and the children were gone. Prior to leaving town, Collier gave Fackrell a key to Danno’s house, a personal check for $250, Collier’s instant cash card, the security code to allow access to her account and instructions to withdraw $500 from the account. Collier had previously given Moreland a picture of Danno. Fackrell turned all of these items over to the authorities when she informed them of Collier’s plan.

Collier was arrested in Kalispell on September 30,1993. She was transferred to the Cascade Countyjail the following day and charged with solicitation of deliberate homicide, a felony, as specified in §§ 45-4-101 and 45-5-102(l)(a), MCA (1991). Her bail was set at $250,000.

The District Court determined that Collier was indigent and appointed Billy Miller, an attorney under contract to the Cascade County Public Defender’s Office, to represent her. At her October 19, 1993 arraignment, Collier entered a plea of not guilty and the first of several trial dates was set. Over the next few months, several motions for reduction of bail were filed but each was denied by the District Court. Collier was unable to post bail and she remained in the Cascade Countyjail from October 1,1993, until after her sentencing on January 13,1995.

On December 6, 1993, Miller filed a motion in District Court to vacate and reset the trial date to allow him additional time to prepare Collier’s defense. The District Court granted the motion and a second trial date was set. On December 14, 1993, Miller requested that the public defender’s office appoint new counsel for Collier as Miller intended to leave his public defender position at the end of the year. The court appointed Marvin Anderson, also under contract to the public defender’s office, to represent Collier.

Anderson filed a motion on February 8,1994, requesting a psychiatric evaluation for Collier. However, in a handwritten letter addressed to the District Court Judge, Collier objected to a transfer to Montana State Hospital at Warm Springs for the evaluation. Anderson withdrew the motion a few days later. The District Court Judge received another handwritten letter from Collier on April 12, 1994, in which she complained of inadequate representation by counsel and requested that her trial be delayed.

On April 22, 1994, Anderson filed a motion for a psychiatric evaluation of Collier to be performed in Great Falls. The District Court granted the motion the same day. However, a few days later, Collier agreed instead to undergo a psychiatric evaluation at Montana State Hospital at Warm Springs.

Collier and nine other individuals filed a petition in federal district court to intervene in an action regarding the public defender system in Cascade County. On April 25,1994, Anderson filed a motion with the court to continue the trial due to a scheduling conflict with Collier’s civil case. The District Court granted Anderson’s motion and the trial date was again reset.

On May 16,1994, the chief public defender in Cascade County filed a motion to withdraw the public defender’s office from representation of Collier and the nine other individuals who had petitioned the federal court for intervention. Two days later, an attorney independent of the public defender’s office was appointed to represent Collier and trial was reset by order of the court. The County Attorney filed a motion on June 17, 1994, to reschedule the trial as the scheduled date fell on a Thursday. This motion was granted and trial was subsequently rescheduled.

Collier’s attorney filed several motions on June 29,1994, including a motion to dismiss the charge for lack of a speedy trial and a motion to release or transfer Collier from the Cascade County jail as the jail did not meet state standards. In addition a motion was filed on August 10,1994, for authorization to hire an investigator and a psychologist. On September 21, 1994, the District Court, without a hearing, authorized Collier’s counsel to incur up to $2000 in professional and investigative services.

The District Court scheduled a hearing for August 5,1994, on the motion to dismiss for lack of a speedy trial and the motion to release or transfer Collier. This hearing was postponed until October 7,1994. After hearing testimony, the District Court denied both motions.

Collier’s attorney filed a motion on October 3, 1994, to transport Collier to Missoula for another psychiatric evaluation. The court granted the motion the same day.

On October 20, 1994, the State requested a continuance and the trial date was once again reset. At some time prior to this new trial date of December 12,1994, the parties reached an agreement wherein the original charge of solicitation of deliberate homicide was amended to a charge of criminal endangerment, a felony, pursuant to § 45-5-

207, MCA (1993). In the Acknowledgement of Waiver of Rights accompanying the plea agreement, Collier waived her right to plead not guilty and her right to be tried by a judge or a jury.

Collier entered a plea of guilty to the charge of criminal endangerment on December 9,1994. She was sentenced on January 13,1995, to eight years in prison and designated a dangerous offender for purposes of parole eligibility. In its sentencing order, the District Court recommended that if Collier is released on parole or supervised release before the completion of her lull sentence, then such parole or supervised release should be subject to several conditions including payment of restitution and a supervision fee.

Issue 1.

Did the District Court err in failing to dismiss the matter for lack of a speedy trial?

Collier was arrested on September 30, 1993, and arraigned on October 19,1993. After several continuances, a trial date of December 12,1994, was set. But, a few days prior to trial, Collier entered into a plea agreement wherein she agreed to plead guilty to an amended charge of criminal endangerment. From the date of her arrest until after sentencing, Collier remained in custody at the Cascade Countyjail.

On June 29, 1994, after being in custody for more than 270 days, Collier filed a Motion to Dismiss for Lack of a Speedy Trial. In denying her motion, the District Court determined that most of the delay was attributable to Collier. Collier contends that this was error and that the State caused the majority of the delay.

The State, on the other hand, contends that Collier waived her right to raise the issue on appeal when she pleaded guilty. The State further contends that even if she did not waive her right to raise the issue on appeal, her right to a speedy trial was not violated.

This Court has previously stated that a plea of guilty that is voluntarily and understandingly made constitutes a waiver of non-jurisdictional defects and defenses, including claims of constitutional violations which occurred prior to the plea. Hagan v. State (1994), 265 Mont. 31, 35, 873 P.2d 1385, 1387 (citing State v. Turcotte (1974), 164 Mont. 426, 428, 524 P.2d 787, 788). The right to a speedy trial is a nonjurisdictional defect claim. U.S. v. Bohn (9th Cir. 1992), 956 F.2d 208, 209.

However, we find that in this case Collier did not waive her right to a speedy trial. On the contrary, the language in the plea agreement shows that Collier did reserve her right to appeal:

Each party understands that the presiding District Court Judge can designate the defendant as a dangerous offender as well as limit his eligibility for parole and work release furlough programs, and that the defendant gives up certain rights as outlined in the accompanying waiver of rights, but the defendant may subsequently appeal any improper determination or ruling by the Court. [Emphasis added.]

Moreover, both the County Attorney and Collier signed the plea agreement. Thus we conclude that Collier did reserve her right to appeal the District Court’s order denying her Motion to Dismiss for Lack of a Speedy Trial. We next address the merits of her claim.

The Sixth Amendment to the United States Constitution and Article II, section 24, of the Montana Constitution guarantee a criminal defendant’s right to a speedy trial. Whether that right has been violated is determined by a four-part test set out in Barker v. Wingo (1972), 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 116-17, and adopted by this Court in State ex rel. Briceno v. Dist. Ct. of 13th Jud. Dist. (1977), 173 Mont. 516, 518, 568 P.2d 162, 163-64.

This test requires a balancing of the following four factors: (1) the length of the delay; (2) the reason for the delay; (3) the assertion of the right by the defendant; and (4) prejudice to the defendant. State v. Matthews (1995), 271 Mont. 24, 27-28, 894 P.2d 285, 287 (citing State v. Stewart (1994), 266 Mont. 525, 529, 881 P.2d 629, 632). No one factor is determinative, rather, all four factors are weighed by considering the facts and circumstances of each case. Matthews, 894 P.2d at 287.

The first factor, length of the delay, triggers further inquiry into the remaining three factors. It is not necessary to consider the remaining factors unless the length of the delay is presumptively prejudicial. State v. Eklund (1994), 264 Mont. 420, 424, 872 P.2d 323, 326 (citing State v. Thompson (1993), 263 Mont. 17, 32, 865 P.2d 1125, 1134). When considering the length of the delay, no regard is given to which party caused the delay. Eklund, 872 P.2d at 326.

In the case before us, there had already been a delay of more than 270 days by the time Collier brought her Motion to Dismiss for Lack of a Speedy Trial. We have previously stated that a delay of over 200 days will usually trigger further analysis. Eklund, 872 P.2d at 326; Matthews, 894 P.2d at 287. Thus the delay in the present case is more than sufficient to warrant an analysis of the remaining three factors.

We have already established that Collier met the third factor of the test, assertion of the right by the defendant, when she filed her Motion to Dismiss for Lack of a Speedy Trial in a timely manner. In analyzing the two remaining factors, we must keep in mind that the State has the burden to provide a reasonable explanation for the delay and to show that the defendant was not prejudiced by the delay. Eklund, 872 P.2d at 326.

The second factor, reason for the delay, requires us to allocate portions of the overall delay to the party responsible for causing that particular delay. Here, Collier argues that the District Court was incorrect in allocating the majority of the delay to her. She contends that Cascade County, by its undertaking to provide representation, should bear the full burden of the consequences of failing to appoint counsel with sufficient experience and capability to provide representation to a defendant.

While we agree that the first 75 days of the delay, from the time Collier was arrested until the original date set for trial, represented institutional delay properly allocated to the State, we conclude that the balance of the time, with some minor exceptions, was properly allocated to Collier. Moreover, institutional delay, though charged against the State, weighs less heavily than intentional delay. State v. Gould (1995), 273 Mont. 207, 216, 902 P.2d 532, 538.

On December 6, 1993, one week prior to the original date set for trial, Collier’s attorney filed a motion to vacate and reset the trial date to allow him additional time to prepare Collier’s defense. The District Court rescheduled the trial for February 8, 1994. Thus the 56 day delay from December 14, 1993, to February 8, 1994, is attributable to Collier.

On February 8, 1994, Collier’s attorney filed a motion for a bail reduction hearing and a motion for a psychiatric evaluation of Collier. Due to these pending motions, the District Court rescheduled the trial for March 21, 1994. Hence, the 41 day delay from February 8, 1994, to March 21, 1994, is attributable to Collier as well.

There is no information in the record as to why the trial was not held on March 21, 1994. However, on March 31, 1994, the State requested that a trial date be set and the court set April 25,1994, as the new trial date. Since the 35 day delay from March 21, 1994, to April 25, 1994, is of unknown origin, for purposes of this discussion, we will attribute that time to the State as institutional delay.

On April 12,1994, the District Court Judge received a handwritten letter from Collier requesting that the April 25, 1994 trial date be reset due to lack of adequate counsel and a conflict with her civil case. Collier’s attorney filed a motion on April 22,1994, to commit Collier to Montana Deaconess Medical Center in Great Falls for a mental health examination. In addition, he filed a motion on April 25,1994, to continue the trial due to conflicts with Collier’s civil case. The District Court rescheduled the trial for June 7, 1994. Consequently, the 43 day delay from April 25, 1994, to June 7, 1994, is also attributable to Collier.

On May 16, 1994, the public defender’s office withdrew from representation of Collier and on May 18, 1994, new counsel was appointed. On June 7, 1994, the District Court issued an order vacating the trial set for that date due to a conflict in the court’s calendar and resetting the trial for July 7, 1994. The 30 day delay from June 7,1994, to July 7,1994, is institutional delay attributable to the State.

Collier filed her Motion to Dismiss for Lack of a Speedy Trial on June 29,1994. Of the nearly 280 days from the date of her arrest on September 30,1993, until her motion to dismiss was filed on June 29, 1994, 140 days can be considered institutional delay attributable to the State, and 140 days are directly attributable to Collier.

While Collier contends that the majority of the delay attributed to her is due to the inexperience of her appointed public defenders, she fails to establish what exactly her public defenders failed to do on her behalf, how they failed to represent her interests or how their requests for additional time to prepare her defense, for bail reduction and for psychiatric evaluation could be or should be attributed to the State. Collier’s conclusory statements of inadequate representation by her public defenders are unpersuasive in the face of the record which demonstrates that both she and her public defenders were actively involved in her defense.

Furthermore, even if we accept, arguendo, Collier’s argument that the majority of the delay should be attributed to the State, she has, nevertheless, failed to demonstrate how that delay prejudiced her defense in any way. Prejudice to the defendant, the fourth factor of the Barker test, is analyzed by assessing three interests which the right to a speedy trial was designed to protect: (1) prevention of oppressive pretrial incarceration; (2) minimization of the defendant’s anxiety and concern; and (3) avoidance of impairment of the defense. The last of these being the most critical factor. Matthews, 894 P.2d at 288; Eklund, 872 P.2d at 326.

It is undisputed that Collier was incarcerated from the time of her arrest to the time of her sentencing. She claims that she was prejudiced by the oppressive conditions of her incarceration and her anxiety and concern over her inability to be with her children. We recognize that a certain amount of anxiety and concern are inherent in being charged with a crime and that proving anxiety and concern beyond that which normally accompany being charged with a crime is extremely difficult. Gould, 902 P.2d at 539. Moreover, Collier would not have been able to “be with” her children even if she were not incarcerated, as her ex-husband had obtained a temporary restraining order preventing her from having anything other than closely supervised visitation with the children. While Collier’s anxiety and concern may have been heightened under the particular circumstances of this case, we are, nevertheless, unpersuaded that, weighing this consideration in the context of the entire Barker analysis, her anxiety and concern would have merited granting her motion to dismiss.

Finally, and most importantly, Collier has failed to allege any specific instances where her defense was impaired by the delay in her case. A mere self-serving assertion that the defendant suffered prejudice is not sufficient to demonstrate that the delay impaired or prejudiced the defense. State v. Weeks (1995), 270 Mont. 63, 74, 891 P.2d 477, 484.

Weighing the facts and circumstances in this case with the factors set forth in Barker establishes that Collier did not suffer any prejudice in her defense from the delay whether those delays were attributable to the State or caused by Collier. Thus, we hold that Collier’s right to a speedy trial was not violated and that the District Court did not err in denying Collier’s motion to dismiss on speedy trial grounds.

Issue 2.

Did the District Court err in designating Collier a dangerous offender?

The District Court designated Collier a dangerous offender for purposes of parole eligibility because it determined that she continues to represent a “substantial danger” to others, particularly her ex-husband. Section 46-18-404(1)(b), MCA (1993). In State v. Wing (1994), 264 Mont. 215, 870 P.2d 1368, we held that an offender may be designated as a dangerous offender if the district court determines that the offender represents a substantial danger to other persons or society. However, we said that unless the district court articulates why the offender represents a substantial danger, this Court cannot determine if the district court abused its discretion.

Contrary to the State’s contention that the District Court’s Amended Sentence contains adequate findings for designating Collier a dangerous offender, Collier contends that the court does “nothing more than make conclusory statements which recite the statutory language.” Collier argues that the court’s findings in this case are insufficient.

This Court has stated in prior opinions that a mere recitation of the statutory language is insufficient. State v. Morrison (1993), 257 Mont. 282, 287, 848 P.2d 514, 517; State v. Henrich (1994), 268 Mont. 258, 271, 886 P.2d 402, 410. Furthermore, we have held that a district court must give specific facts taken from the record of the case as reasons for making its decision. State v. Evans (1995), 272 Mont. 58, 62-63, 899 P.2d 1073, 1075-76.

In its Amended Sentence, the District Court related the following facts as the basis for its determination:

12. Defendant continues to demonstrate an unwillingness to accept responsibility for her actions. She blames other people for this crime, including her ex-husband and Bridget Fackrell. Defendant and her ex-husband had disputes. She believed that he was abusive to her and to their children. She had some trouble with visitation of the children. She discussed with others the possibility of having her ex-husband killed in order to remove her problems. These discussions occurred over a period of several months. When someone was apparently willing to take her up on the idea, she presented to them a plan that could have accomplished the death of her ex-husband and diverted suspicion from her.
As part of the conversations, Defendant gave Fackrell money, a key to her house, and her ATM card and PIN number. She gave Travis Moreland, another person with whom she discussed the matter, a picture of her ex-husband. She described the house and the best means of access to it. She told Fackrell and Moreland that she had moved her belongings so they wouldn’t take them in the robbery which she proposed they commit to cover up the offense. In fact, she moved certain of her belongings to the basement of the house, so they would not be taken. In sum, she presented a complete plan for the death of her ex-husband.

Along these same lines, the District Court made the following findings:

3. The circumstances under which Defendant committed this crime reflect that it was done with total disregard to the well being of Evan Danno and Defendant’s children.
9. Defendant did not act under strong provocation. Her actions were taken not in a moment of passion. They occurred over a period of time and culminated at a time when Defendant was trying to reconcile her marriage.
10. Because of the circumstances surrounding the commission of this crime, at present Defendant’s crime will likely reoccur. Defendant has expressed no remorse and has not accepted responsibility for her acts. Defendant continues to place blame on others. Defendant’s refusal to take responsibility for the crime makes Defendant likely to commit other crimes, if the action will benefit Defendant.

Accordingly, we conclude that the dangerous offender designation in this case was supported by the record and adequately justified in the District Court’s written judgment.

Issue 3.

Did the District Court err in failing to find that Collier was unable to appreciate the criminality of her conduct?

Collier claims that she was unable to appreciate the criminality of her conduct due to mental disease or defect and that the District Court erred in not sentencing her accordingly. She maintains that based on her mental condition, she should have been placed in a specialized institution rather than a prison.

This Court held in State v. Byers (1993), 261 Mont. 17, 861 P.2d 860, that a defendant’s mental disease or defect may be evaluated at three different stages of the legal proceedings: before trial, pursuant to § 46-14-103, MCA; during trial, pursuant to § 46-14-102, MCA; and during sentencing, pursuant to § 46-14-311, MCA. We said in Byers that

the sentencing judge may consider whether at the time of the commission of the offense the defendant was suffering from a mental disease or defect that rendered him unable to appreciate the criminality of his behavior or to conform his behavior to the requirements of the law. Section 46-14-311, MCA. The sentencing judge must then determine whether the mental disease or defect is such that defendant should be confined to a specialized institution.

Byers, 861 P.2d at 866.

A determination of the existence of mental disease or defect rests within the discretion of the sentencing judge. State v. Watson (1984), 211 Mont. 401, 416, 686 P.2d 879, 888-89 (citing State v. Doney (1981), 194 Mont. 22, 35, 636 P.2d 1377, 1385). Here the District Court considered several different evaluations of Collier’s mental condition.

The first psychological evaluation was completed on December 2, 1993, by Dr. John Mendenhall of Psychiatric Associates of Great Falls. In his report, Dr. Mendenhall states that Collier

is perfectly aware of the charges against her and their significance and she is aware of the nature of the crime of which she is accused. She is aware of the consequences of such a crime in the hypothetical sense and she emphatically states that she believes she is competent to stand trial. I see no reason to disagree with her.

A second psychological evaluation was completed on May 17,1994, by Dr. John Van Hassel, a psychologist with Montana State Hospital. Dr. Van Hassel stated in his report that Collier does not appear to indicate any “significant mental illness.”

A third psychological evaluation was completed on June 2, 1994, by Dr. Robert Caldwell, staff psychiatrist at Montana State Hospital. In his report, Dr. Caldwell states that Collier is competent and fit to proceed with the matter of the charges against her. He further states that, in his opinion,

at the time of the alleged offense, Ms. Collier did not suffer from a mental disorder that would have impaired her ability to form the intent to commit [the] offense which has been charged.

A fourth and final psychological evaluation was completed on October 19,1994, at Collier’s request, by Dr. Susan Sachsenmaier, a licensed clinical psychologist. In her report, Dr. Sachsenmaier states:

There is no doubt that Ms. Collier was suffering from diminished capacity due to her mental illness at the time of the alleged crime. ... The impossibility of the situation, as she experienced it, led to feelings of desperation and downfall, and the belief that she could no longer survive without escape from Evan. Operating on a deficit of psychological resources, she resorted to a fantasized means of escaping from the situation. She then had the misfortune to be maliciously manipulated by others who held themselves out as her friends, and promised to make real her fantasy of causing him to disappear, but had as their sole object the exploitation of an obviously gullible and naive person.

In addition to providing the court with a written evaluation, Dr. Sachsenmaier testified on Collier’s behalf at her sentencing hearing.

Contrary to Collier’s assertions, Dr. Sachsenmaier’s report does not irrefutably establish Collier’s mental incapacity at the time the crime was committed or that Collier suffered from diminished capacity or mental disease or defect. Three prior evaluations of Collier’s mental condition are in agreement that although Collier does exhibit some form of mental disorder, the mental disorder was not so severe as to impair her ability to form the mental state necessary to commit the offense for which she was charged.

After reviewing Dr. Sachsenmaier’s testimony at the hearing, and the four written evaluations, the District Court determined that Collier’s mental capacity at the time of the commission of the charged offense was sufficient to permit her to understand the criminality of her conduct and to conform her behavior to the requirements of the law. Finding that Collier did not suffer from a mental disease or defect, the District Court sentenced her in accordance with § 46-14-312(1), MCA and Title 46, Chapter 18.

Accordingly, while there was some conflict in the evidence, that conflict was resolved by the trial court against Collier. We conclude that the record does support the District Court’s determination as to Collier’s mental capacity, and, therefore, we hold that the District Court did not abuse its discretion in sentencing Collier to prison rather than to a specialized institution.

Issue 4.

Did the District Court err in ordering Collier to pay restitution?

The District Court recommended that if Collier is released on parole or supervised release before the completion of her full sentence, then such parole or supervised release should be subject to several conditions including the payment of restitution and a supervision fee. Collier contends that it was improper for the court to make this recommendation as the court had not suspended or deferred any portion of her sentence and §§ 46-18-201(l)(a) and (b), MCA, allow for restitution only where a portion of the sentence is suspended or deferred. Collier contends that State v. Mazurkiewicz (1990), 245 Mont. 172, 799 P.2d 1066, is controlling on this issue.

We disagree. In State v. Bourne (1993), 259 Mont. 274, 275, 856 P.2d 222, 223, this Court held that Mazurkiewicz is not controlling in situations where restitution is clearly attendant to parole as in the instant case. Rather, we said in Bourne that under § 46-18-202, MCA, and our decision in State v. Klippenstein (1989), 239 Mont. 42, 778 P.2d 892, a district court has the authority to recommend payment of restitution and supervision fees as conditions of parole and that the district court judge is in the best position to determine what can best help in the rehabilitation of an individual convicted of a crime. Bourne, 856 P.2d at 223-24.

Section 46-18-202, MCA (1991), states in part:

Additional restrictions on sentence. (1) The district court may also impose any of the following restrictions or conditions on the sentence provided for in 46-18-201 which it considers necessary to obtain the objectives of rehabilitation and the protection of society:
(e) any other limitation reasonably related to the objectives of rehabilitation and the protection of society. [Emphasis added.]

Here the District Court recommended the payment requirements if Collier is released on parole or supervised release. Whether or not the court’s recommendations will be followed is up to the parole board.

Accordingly, we hold that the District Court did not err in recommending that Collier pay restitution and supervision fees if and when she is released on parole or supervised release before the completion of her full sentence.

Issue 5.

Did the District Court err in permitting the County Attorney to argue facts at sentencing supporting the original charge of solicitation of deliberate homicide?

Collier contends that the District Court Judge acted improperly at her sentencing hearing when he permitted the County Attorney to question a police officer at length concerning the preparations Collier made to bring about the death of her ex-husband. Collier argues that the plea agreement and the amended information limited the scope of the charges brought against her and that the County Attorney introduced the evidence for the purpose of demonstrating that the original charge of solicitation of deliberate homicide was justified.

The State argues that since the factual basis for both the original charge of solicitation of deliberate homicide and the amended charge of criminal endangerment was the same, there was no impropriety in allowing the investigating officer to relate the facts of the case. The State also maintains that there was no violation of the spirit or the letter of the plea agreement.

We have repeatedly said that the rules of evidence do not apply at sentencing. Rule 101(c)(3), M.R.Evid.; State v. Farnsworth (1989), 240 Mont. 328, 334, 783 P.2d 1365, 1369; State v. Smith (1988), 232 Mont. 156, 160, 755 P.2d 569, 571-72; State v. Lamere (1983), 202 Mont. 313, 321, 658 P.2d 376, 380. Moreover, in imposing sentence, the sentencing court may consider any relevant evidence relating to the nature and circumstances of the crime, the character of the defendant, the defendant’s background history, mental and physical condition, and any evidence the court considers to have probative force. Klippenstein, 778 P.2d at 894.

Furthermore, there is nothing in the plea agreement that prevented the County Attorney from presenting the facts of the case during the sentencing hearing. Instead, the plea agreement includes the following language:

I. Defendant agrees to enter a plea of guilty to an amended charge of Criminal Endangerment, in violation of M.C.A. 45-5-207.
II. In return, the County Attorney agrees to amend the present charge of Solicitation, Deliberate Homicide to a charge of Criminal Endangerment, in violation of M.C.A. 45-5-207.
III. Counsel for defendant and counsel for the State may make any recommendation and may introduce testimony and I or evidence in support thereof at the time of sentencing. [Emphasis added.]

Accordingly, we hold that the testimony of the investigating officer was properly admitted during the sentencing hearing.

Issue 6.

Did the District Court err in failing to release Collier or transfer her to a different detention facility due to conditions at the Cascade County jail?

The District Court denied a motion to release Collier or transfer her to a different detention facility. The court determined that conditions at the Cascade County jail were not so deficient as to require a transfer.

The State contends that Collier waived her right to appeal this issue when she pleaded guilty to the charge of criminal endangerment. However, we have already established that specific language in the plea agreement reserved Collier’s right to appeal this and other issues.

Collier contends that detaining her in the Cascade County jail was a violation of § 7-32-2222, MCA (1993), which states, in part: Health and safety of prisoners. (1) Each detention center

must comply with state and local fire codes for correctional occupancy and with sanitation, safety, and health codes.

Collier maintains that the Cascade County jail was not in compliance with state and local fire codes or with sanitation, safety, and health codes.

Amy MacKenzie, a sanitary consultant with the Department of Health and Environmental Sciences, inspected the jail in June and December 1993 and again in May 1994. At the hearing on Collier’s motion for release or transfer to another detention facility, MacKenzie testified that although the Cascade County jail was not in 100 percent compliance with the guidelines established by her office, the jail was not an imminent health hazard nor was it a public nuisance. Moreover, her office was working with j ail staff to continually improve the conditions at the jail.

Mel Shultz, a detention officer with the Cascade County Sheriff’s Office, testified that some of the unsanitary conditions that Collier complained of were caused by Collier herself. Shultz testified that Collier would leave uneaten food in her cell for long periods of time and that she would refuse to exchange dirty coveralls for clean ones, sometimes wearing the same coveralls for up to a month.

Accordingly, we conclude that Collier has failed to establish that conditions at the Cascade County jail were so deficient as to require her release or transfer to another detention facility and we hold that the District Court did not err in denying her motion.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY and LEAPHART concur.

JUSTICE HUNT

specially concurs.

I concur with the majority regarding Issues 2 through 6. While I concur in the result reached by the majority in Issue 1, I cannot entirely support the rationale used to conclude that Collier’s right to a speedy trial was not violated. For this reason, I write separately.

The majority somehow overlooks one of the most important aspects of the Barker test: once a defendant has shown a delay which is presumptively prejudicial, the burden shifts to the State to provide a reasonable explanation for the delay and to show that the defendant was not prejudiced thereby. State v. Gould, (1995), 273 Mont. 207, 213-15, 902 P.2d 532, 537. This shift in the burden of proof changes the entire complexion of a speedy trial analysis. To the extent that the majority opinion suggests that Collier was required to show that her constitutional rights were prejudiced, it is simply incorrect. Once a speedy trial analysis is triggered, prejudice will be presumed and it is up to the State to show that the defendant was not prejudiced by the delay.

Therefore, under the fourth factor of the Barker test, a court must evaluate whether the delay in bringing a case to trial has prejudiced the defendant. Gould, 902 P.2d at 538. As the majority correctly notes, this involves considering possible infringements on three interests which the right to a speedy trial is designed to protect:

(1) the prevention of oppressive pretrial incarceration;
(2) the minimization of the defendant’s anxiety and concern; and
(3) the limitation of impairment of the defense.

It bears repeating, however, that these are three separate interests. The defendant’s interest in avoiding oppressive pretrial incarceration is separate and apart from her interest in minimizing anxiety and concern. There can be no question that Collier was incarcerated for the entire period prior to trial and that her incarceration was oppressive. Therefore, this factor must be weighed in her favor.

However, I do not believe a correct application of the Barker test would yield a different result than that which the majority reaches. Collier has not asserted that her defense was impaired by the delay in bringing the case to trial. To the contrary, she blames the quality of her legal representation for most of the problems she encountered. Moreover, the State has explained the reason for that portion of the delay which is attributable to it. Even if the burden of proof were correctly placed on the State, Collier has not alleged circumstances under which she could prevail. The majority therefore correctly concluded that her right to a speedy trial was not infringed.