author: JUSTICE McDONOUGH

text:
    THE STATE OF MONTANA, Plaintiff and Respondent, v. RICHARD DUKE JUNGERS, Defendant and Appellant.
    No. 90-302.
    Submitted on Briefs Nov. 1, 1990.
    Decided Dec. 11, 1990.
    802 P.2d 615.
    Randi Hood, Public Defender, Helena, for defendant and appellant.

      Marc Racicot, Atty. Gen., Jennifer Anders, Asst. Atty. Gen., Mike McGrath, County Atty., Leo J. Gallagher, Deputy County Atty., Helena, for plaintiff and respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

Richard Duke Jungers appeals from a jury verdict finding him guilty of felony theft. The District Court of the First Judicial District, Lewis and Clark County sentenced Jungers to ten years for the felony theft and an additional twenty years with twelve years suspended as a persistent felony offender. Jungers was designated dangerous for purposes of parole. We affirm.

The issues presented for review are:

1. Whether there is sufficient evidence to support Jungers’ conviction for felony theft;

2. Whether Jungers was afforded effective assistance of counsel.

In the weeks preceding Thanksgiving of 1989, Richard Duke Jungers stayed at an apartment rented by Debbie and Ron Newbreast, which was located in Helena, Montana. His stay at the apartment was intermittent because at times he stayed with his girlfriend, or was out of town. However, when he did stay at the apartment he slept on a couch which was in the front room. The Newbreasts occupied the bedroom, which apparently was the only other room in the apartment.

During this same period of time a number of burglaries occurred in the Helena area. On Thanksgiving day Virginia Pruett observed a man running across her neighbor’s back yard carrying a long object wrapped in a rug or blanket. The man ran to a blue and white jeep which was waiting in an alley. The man threw the wrapped object into the back, climbed into the passenger side of the vehicle which then drove off. The man Ms. Pruett saw running across the yard had dark tousled hair and was not Richard Jungers. She could not identify the driver of the vehicle.

Gwen Smith, the owner of the house was out of town for the Thanksgiving holiday. Upon returning home, she found out that her house had been ransacked. She prepared a list of missing personal property which included several pieces of jewelry. She estimated the total value of her missing property at $4,300.00.

Shortly after the reported burglary, police found a Jeep Cherokee matching Ms. Pruett’s description parked in an apartment complex across the street from the Helena Police Department. The police took a photograph of the vehicle and showed it to Ms. Pruett, who stated that it was similar to the vehicle she had seen in the alley Thanksgiving day. Upon further investigation, the police discovered that the vehicle belonged to Richard Jungers, who as stated earlier, had been staying with Debbie and Ronald Newbreast at their home in the apartment complex.

On December 1,1989, Helena police, pursuant to a search warrant entered and searched the Newbreast residence. An arrest warrant was also issued for Richard Jungers and while the officer searched the home, Jungers was arrested. Recovered during the search were several items taken from area homes and offices during recent burglaries. These items included a .22 rifle which belonged to Henry Smith and a bronze statue and a notary seal taken from the Morrison-Meloy Law Office during a burglary which occurred shortly after the Thanksgiving holiday. Also found were several articles of jewelry taken from the Gwen Smith residence.

Jungers was charged with four counts of burglary in violation of § 45-6-204, MCA, and felony theft (common scheme) as defined in. §§ 45-6-301 and 45-2-101(7). After Jungers entered his plea of not guilty, the State moved to dismiss the four counts of burglary. The District Court granted this motion and ordered trial to proceed on the charges of felony theft.

Following trial, a jury found Jungers guilty of felony theft as defined by § 45-6-301(l)(c), MCA. The District Court sentenced Jungers as heretofore stated. This appeal followed.

I.

Jungers argues that there is insufficient evidence to support his conviction for felony theft. As stated earlier, he was convicted of felony theft because the jury found he received stolen property. This offense is defined in § 45-6-301(3), MCA, which states in pertinent part:

“(3) A person commits the offense of theft when he purposely or knowingly obtains control over stolen property knowing the property to have been stolen by another and:
“(a) has the purpose of depriving the owner of the property;
“(b) purposely or knowingly uses, conceals, or abandons the property in such manner as to deprive the owner of the property; or
“(c) uses, conceals, or abandons the property knowing such use, concealment, or abandonment probably will deprive the owner of the property.”

Section 45-6-301(6), MCA, provides that the line of demarcation between felony and misdemeanor theft as to the value of the property stolen is $300.00. Taking these two sections together, it is apparent that in order to support Jungers’ conviction the evidence must support the conclusion that:

1. Jungers had control over

2. stolen property

3. whose value exceeded $300.00

4. with the intent to deprive its owner of such property.

During trial, four items seized during the search of the New-breast home were entered into evidence. The value of these items, as estimated and testified to by their owners was:

.22 rifle $225.00
items of jewelry $5-$10.00
notary seal $27.00
bronze statue $50.00

The total value of this property approximated $307-$312.00. This evidence as a whole is sufficient to meet the value requirement of felony theft.

However, Jungers strongly argues that the evidence does not support the conclusion that he purposely or knowingly had control over the stolen property. The .22 rifle, in particular, was found in a closet in the Newbreasts’ bedroom. According to testimony of Debbie and Ronald Newbreast the rifle was sold to them by another friend, Freddy Gaither. Jungers maintains that there is no evidence he had access to the closet or the rifle and therefore his control over it cannot be established. Since the State cannot prove he had control of the rifle, his conviction for felony theft is unsupported because the only items proven to be in his control were worth at the most, $87.00, which is less than the $300.00 required for a felony conviction.

We disagree with Jungers’ argument. We begin by noting that the testimony of Ronald Newbreast is far from convincing. It is riddled with inconsistencies and suspect explanations. Following his arrest Newbreast told police that the .22 rifle was brought into the apartment by Richard Jungers. By the time he was called to testify, however, Newbreast changed his story to incriminate Freddy Gaither, who apparently had fallen from Newbreast’s favor because he suspected him of “ratting them out.” Newbreast attempted to account for this inconsistency through various explanations including his insistence that he was high at the time of the police interview or, in the alternative, that he lied to get out of jail.

We farther note that testimony established, contrary to Jungers’ argument, that Jungers had full access to the Newbreast apartment. Testimony established that Jungers and the Newbreasts were very generous towards one another and shared all of their belongings. This generosity towards Jungers apparently included permission to enter the Newbreasts’ room and access to their personal belongings.

Given this testimony, we hold that the evidence meets the requirement of control. The standard of review employed by this Court when reviewing jury verdicts in criminal matters is necessarily very limited. This standard dictates that:

“[A] conviction may not be overturned when the evidence presented, viewed in the light most favorable to the prosecution, would permit a rationale (sic) trier of fact to find the essential elements necessary to establish the offense. State v. Holman (1990), 241 Mont. 238, 241, 786 P.2d 667, 669.”

The above evidence would permit a jury to find such essential elements.

II.

Next Jungers argues that he was denied his constitutional right to effective assistance of counsel. In making this argument Jungers maintains that through his failure to rebut the value of the stolen property seized by police, his attorney failed to adequately represent him. As stated earlier, only four items seized at trial were appraised by their owners. The value of these items totaled between $307-$312.00. Jungers argues that his counsel should have attacked the values placed on these items in an effort to establish a total value less than $300.00, which would have led to a conviction for the lesser crime of misdemeanor theft.

In asserting his claim of ineffective assistance of counsel, Jungers must establish two elements. First he must prove that his lawyer’s performance fell below the range of competence reasonably demanded of attorneys by the Sixth Amendment to the United States Constitution. Second, he must demonstrate that the deficiency was so prejudicial that he was denied a fair trial. State v. Senn (1990), [244 Mont. 56,] 47 St.Rep. 1389, 795 P.2d 973.

After careful review of the record, it is apparent that Jungers’ counsel performed adequately and competently. It is obvious that he decided, as a matter of tactic, to confront Jungers’ guilt head on in an effort to establish complete innocence. Perhaps he utilized this tactic in an effort to prevent Jungers, who was on parole, from being sent back to prison. At any rate, we refuse here to second guess counsel’s tactical decisions. Accordingly, we hold that Richard Duke Jungers was not denied his constitutional right to effective assistance of counsel. The jury’s verdict is affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES BARZ, HUNT and WEBER concur.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    DISTRICT NO. 55, and HIGH SCHOOL District No. 55-H, Musselshell County, Montana, Plaintiffs and Appellants, v. MUSSELSHELL COUNTY and MARGARET REIGHARD, in her official capacity as Superintendent of Schools, MUSSELSHELL COUNTY, Defendants and Respondents.
    No. 90-108.
    Submitted Oct. 25, 1990.
    Decided Dec. 12, 1990.
    802 P.2d 1252.

      Laurence R. Martin and Sol Lovas, Felt, Martin, Frazier & Lovas, P.C., Billings, for plaintiffs and appellants.
    Kenneth D. Tolliver and James C. Reuss, Wright, Tolliver & Guthals, Billings, for defendants and respondents.
   JUSTICE HARRISON

delivered the Opinion of the Court.

School Districts No. 55 and No. 55-H of Musselshell County, Montana, appeal the order of the District Court of the Fourteenth Judicial District granting Musselshell County’s cross-motion for summary judgment. The School Districts had filed this action to obtain damages for alleged loss of operating revenues resulting from miscalculations of the mill levy by the County Superintendent of Schools. We affirm.

We frame the issues as follows:

1. Should the action have been dismissed because the School Districts had no legal authority to sue the County for damages?

2. Did the District Court correctly grant the County’s motion for summary judgment based on legislative immunity?

The facts are undisputed. The Superintendent of Schools for Musselshell County admits that she miscalculated the mill levy required to raise funds needed by the School Districts for fiscal year 1986-87. Through her faulty computations, she arrived at 8.37 mills for the elementary school district general fund levy and 8.69 mills for the high school district general fund levy. Correct figures were 17.14 mills for the elementary levy and 15.25 mills for the high school levy.

The County Superintendent reported the incorrect number of mills to the Board of County Commissioners, which levied the 1986 school tax based on her figures. As a result of the low millage levy, school district revenues were short by $187,498 for the 1986-87 school year. Due to use of reserve funds, operation of the schools was not impacted. Faculty and staff were paid, and no programs or personnel were cut. Since the millage levy was later adjusted, functioning of the school for the following school year was not affected.

The School Districts sued the County for recovery of lost revenues and losses of investment income on decreased reserve funds. The School Districts also requested an injunction requiring the County to reimburse the Districts for costs and damages that might be incurred in a lawsuit asserting violations of §§ 15-10-401 to -412, MCA, which limit property taxes to 1986 levels. Prior to this action, the District Court had issued an order authorizing the County to utilize correct 1986 mill levy figures for purposes of §§ 15-10-401 to -412, MCA.

Both parties moved for summary judgment. The District Court granted the motion of the County on the basis that the County was immune from suit. From this decision, the School Districts appeal.

I.

Should the action have been dismissed because the School Districts had no legal authority to sue the County for damages?

Summary judgment was granted on the basis of governmental immunity. When a case is disposed of below on a motion for summary judgment before a judge sitting without a jury and the facts are uncontested, “the scope of review is much broader than in other appeals and the Supreme Court is free to make its own examination of the entire case and reach a conclusion in accordance with its findings.” McCain v. Batson (1988), 233 Mont. 288, 298, 760 P.2d 725, 731. Furthermore, this Court will uphold the district court’s decision, if correct, regardless of the reasons given below for the result. Jerome v. Pardis (1989), 240 Mont. 187, 192, 783 P.2d 919, 922; Shimsky v. Valley Credit Union (1984), 208 Mont. 186, 190, 676 P.2d 1308, 1310.

In this case the facts are undisputed. The County concedes that the County Superintendent of Schools erred in computing the mill levy and that the County Board of Commissioners levied the incorrect tax based on her calculations. Before we address the question of governmental immunity, we need to decide the more basic issue of whether the School Districts, as governmental entities, were authorized to bring suit against the County, another governmental entity.

Since this is a case of first impression, we have reviewed decisions of other jurisdictions concerning the issue of whether one governmental entity may sue another. In some jurisdictions courts have resolved the issue based on whether the governmental entity had standing to sue. See, e.g., East Grand County School District No. 2 v. Town of Winter Park (Colo. App. 1987), 739 P.2d 862; Capital View Fire District v. County of Richland (App. 1989), 297 S.C. 359, 377 S.E.2d 122.

At the threshold of every suit is the requirement that parties have standing to sue. The plaintiff is required to have “ ‘such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens presentation of issues.’” Olson v. Department of Revenue (1986), 223 Mont. 464, 469, 726 P.2d 1162, 1166 (quoting Baker v. Carr (1962), 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663, 678). While the School Districts may or may not meet criteria to establish standing to sue, the real issue is whether the school district, as a political subdivision of the state, has legal authority to exercise standing. Harrison County v. City of Gulfport (Miss. 1990), 557 So.2d 780, 784.

In examining decisions of other courts allowing suit on grounds other than standing, we note that most do not involve seeking damages from the other governmental entity. For example, courts have permitted challenges to the constitutionality of a statute; actions to oppose annexation of county lands by a city; suits for declaratory judgments construing state revenue laws; and actions to determine title to real property held by the state. See Rose v. Council for Better Education, Inc. (Ky. 1989), 790 S.W.2d 186 and Simons v. Laramie County School District No. 1 (Wyo. 1987), 741 P.2d 1116 (challenging constitutionality of statutes); Harrison County v. City of Gulfport (Miss. 1990), 557 So.2d 780 (annexation opposition); State ex rel. Independence School District v. Jones (Mo. 1983), 653 S.W.2d 178. (declaratory ruling on construction of statute); Coos County v. State (1987), 303 Or. 173, 734 P.2d 1348 (quiet title action).

In most situations where a governmental entity has sought damages from another governmental entity, as here, the suit has not been allowed. See Carbon County School District No. 2 v. Wyoming State Hospital (Wyo. 1984), 680 P.2d 773; State v. Board of County Commissioners of Johnson County (Wyo. 1982), 642 P.2d 456; but see Board of Education v. Town of Riverdale (1990), 320 Md. 384, 578 A.2d 207 (local government tort immunity cannot be asserted as a defense when sued by the state or a state agency, the source of its immunity).

School districts, municipalities, and counties are political subdivisions of the state. As creations of the state, “[ejxcept as provided by the state, they have no existence, no functions, no rights and no powers.” East Jackson Public Schools v. State (App. 1984), 133 Mich.App. 132, 348 N.W.2d 303, 306. When a school district or other subdivision of state government attempts to bring an action against another governmental subdivision, the state, in effect, is suing itself. Carbon County, 680 P.2d at 774. The logic of this view cannot be denied. While the taxpayers, as represented by the School Districts, may benefit, the taxpayers, as represented by the County, must pay, through taxes or insurance, the deficient funds to the School Districts.

Generally, courts will not allow suits between governmental entities unless express or implied statutory authority exists. The Missouri Supreme Court refused to permit a county assessor’s appeal of a decision of a county board of equalization because no statute authorized such an appeal. O’Flaherty v. State Tax Commission of Missouri (Mo. 1984), 680 S.W.2d 153; see also City of Richmond Heights v. Board of Equalization (Mo. 1979), 586 S.W.2d 338 (city had no authority to appeal assessment by county board of equalization); State ex rel. St. Francois County School District R-III v. Lalumondier (Mo. 1975), 518 S.W.2d 638 (school district not allowed to obtain review of county board of equalization decision). Similarly, Michigan courts have held that a school district has no power to challenge a state funding measure “on behalf of residents within their boundaries, or to expend public funds to finance such litigation of, or on behalf of, private citizens.” East Jackson Public Schools, 348 N.W.2d at 306.

We can find no statutory authority granting a school district, a governmental subdivision, the right to sue another governmental subdivision for damages. We hold that in the absence of a specific statutory or constitutional provision, one governmental subdivision may not sue another for damages.

II.

Did the District Court correctly grant the County’s motion for summary judgment based on legislative immunity?

Since we have concluded that the School Districts and the County are not proper parties to this action, we need not consider the immunity question.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES BARZ, McDONOUGH, HUNT, SHEEHY and WEBER concur.


text:
    IN THE MATTER OF THE COMMISSION ON UNAUTHORIZED PRACTICE OF LAW
    No. 90-432.
    246 Mont. 1
    DATED this 11th day of December, 1990.
   ORDER

On August 28, 1990, a joint petition of the Commission on Unauthorized Practice of Law and the State Bar of Montana was filed herein, seeking this Court’s approval and adoption of revised rules of procedure for the Commission on Unauthorized Practice of Law.

IT IS ORDERED that the attached Rules of the Commission on Unauthorized Practice of Law are hereby adopted by this Court and shall be effective commencing January 1, 1991.

The Clerk is directed to mail a true copy of this order and attached rules to George N. McCabe, Esq., Chairman of the Commission on Unauthorized Practice of Law; to George Bousliman, Executive Director of the State of Montana; to West Publishing Company; and to the State Reporter.

s/ J.A. Turnage, Chief Justice

s/ John Conway Harrison, Justice

s/ John C. Sheehy, Justice

s/ Diane G. Barz, Justice

s/ William E. Hunt, Sr., Justice

s/R.C. McDonough, Justice

s/ Fred J. Weber, Justice

RULES OF THE COMMISSION ON UNAUTHORIZED PRACTICE OF LAW

RULE ONE — PURPOSE; JURISDICTION; EFFECTIVE DATE.

(a) Statement of purpose. The public interest requires that in securing professional advice and assistance upon matters affecting one’s legal rights, one should have assurance of the competence and integrity of his or her representative and should enjoy freedom of full disclosure under a recognized privilege of confidentiality. To protect this public interest it is deemed necessary to establish guidelines for the investigation of complaints and the procedures to be followed to eliminate the unauthorized practice of law as provided by § 37-61-201 et seq., MCA.

(b) Jurisdiction. Pursuant to the provisions of Article VII, Section 2, of the Constitution of the State of Montana, the Montana Supreme Court has inherent jurisdiction to prohibit the unauthorized practice of law.

(c) Meetings. Meetings of the Commission shall be subject to § 2-3-201 et seq., MCA.

(d) Effective Date. These Rules shall become effective on January 1, 1991. Any formal proceeding then pending shall be concluded under the procedure existing prior to the effective date of these Rules.

RULE TWO — DEFINITIONS.

As used in these Rules, the following terms have the following meanings, unless expressly otherwise provided, or as may result from necessary implications.

(a) Complainant. “Complainant” means the individual or entity alleging that a person or entity has engaged in the unauthorized practice of law.

(b) Commission. “Commission” means the Commission on Unauthorized Practice of Law appointed by the Supreme Court.

(c) Court or Supreme Court. “Court” or “Supreme Court” means the Supreme Court of the State of Montana.

(d) Record. “Record” means the formal parts of the record of proceedings involving the review of allegations of unauthorized practice of law, including the letter of complaint; the respondent’s response to the complaint; all notices of hearings; all pleadings or motions; all exhibits marked and offered in evidence; the transcript of testimony; the findings and recommendations of the boards and committees; all orders imposing sanction.

(e) Respondent. “Respondent” means an individual alleged to have engaged in the unauthorized practice of law.

(f) Rules or These Rules. “Rules” or “These Rules” means Rules One through Eleven hereof.

(g) State. “State” means the State of Montana.

(h) Unauthorized Practice of Law. “Unauthorized Practice of Law” means the practice of law without being first duly qualified, as prohibited by statute, court rule, or case law of the State.

RULE THREE — COMMISSION ON UNAUTHORIZED PRACTICE OF LAW.

(a) Membership. The Supreme Court shall appoint a nine (9) member commission to be known as the “Commission on Unauthorized Practice of Law” which shall be composed of:

(1) Five (5) practicing lawyers who shall be residents of the State and licensed and admitted to practice in the State.

(2) Four (4) non-lawyer members, who shall be residents of the State.

(3) Of the nine members referred to above, there shall be at least one member from each of the following areas:

Area A shall comprise the Fourth, Eleventh, Nineteenth and Twentieth Judicial Districts.

Area B shall comprise the Second, Third and Fifth Judicial Districts.

Area C shall comprise the Eighth and Ninth Judicial Districts.

Area D shall comprise the Twelfth, Fifteenth and Seventeenth Judicial Districts.

Area E shall comprise the First, Sixth and Eighteenth Judicial Districts.

Area F shall comprise the Tenth and Fourteenth Judicial Districts.

Area G shall comprise the Thirteenth Judicial District.

Area H shall comprise the Seventh and Sixteenth Judicial Districts.

(b) Term. Of the initial members of the Commission appointed by the Supreme Court:

(1) One lawyer member and one non-lawyer member shall be appointed for an initial term ending January 1,1992.

(2) Two lawyer members and one non-lawyer member shall be appointed for an initial term ending January 1,1993.

(3) Two lawyer members and two non-lawyer members shall be appointed for an initial term ending January 1,1994.

Subsequent terms of all members shall be for three (3) years. Subsequent members shall be appointed by the Supreme Court. In the event of a vacancy in the Commission, a successor shall be appointed by the Supreme Court for the unexpired term of the member whose office is vacated. Members of the Commission may terminate their membership at their pleasure, and their membership may be terminated by the Court at its pleasure. No member shall serve more than two (2) consecutive terms.

(c) Officers. The Supreme Court shall appoint a Chairperson of the Commission to serve for a term of two (2) years. The Chairperson shall appoint a Vice-Chairperson and a Secretary. The Chairperson, and in his or her absence the Vice-Chairperson, shall be responsible for calling and presiding over meetings of the Commission and for certifying to the Supreme Court all recommendations concerning matters which come before the Commission.

(d) Quorum. Five (5) members of the Commission shall constitute a quorum. All decisions of the Commission must be by majority vote of those present at a meeting at which a quorum is present.

(e) Meetings. Members of the Commission shall meet at times and places designated by the Chairperson or, in the absence of the Chairperson by the Vice-Chairperson, who shall determine the agenda for meetings. Notice of any such meeting shall be given by mail or by telephone not less than seven (7) days in advance of the time for such meeting, except in cases of emergency or urgency requiring, in the judgment of the person calling the meeting, a shorter time of notice. Also, the Supreme Court may call a meeting of the members to be held at a time and place ordered by the Court. Notice of any such meeting shall be given as above provided. The minutes of any meeting of the Commission, which shall be prepared by the Secretary, shall state the form and time of notice of meeting given to the members. Meetings of the Commission may be held by conference telephone or similar communications equipment.

(f) Duties and Powers. The Commission shall have the following powers and duties:

(1) To receive complaints of unauthorized practice of law;

(2) To refer complaints to area committees for investigation;

(3) To supervise and be responsible for the area committees;

(4) To review area committee reports containing the investigative findings relative to complaints of unauthorized practice of law;

(5) To make and submit findings and recommendations, together with the record of the proceedings before it, to the Supreme Court;

(6) To adopt additional rules of procedure subject to approval of the Supreme Court;

(7) To issue cease and desist letters seeking voluntary compliance with unauthorized practice of law statutes, rules and case law;

(8) To take action as authorized by Rule Six(b).

(g) Conflicts. Members of the Commission shall refrain from taking part in any proceedings in which a judge, similarly situated, would be required to abstain. If, in any given case, the number of Commission members who may properly render a decision falls below a quorum, the Supreme Court may appoint, for that case only, the number of ad hoc members necessary to restore the Commission to full membership. Each ad hoc member shall fulfill all the responsibilities of the member whom he or she replaces.

RULE FOUR — AREA COMMITTEES.

(a) Appointment. The Commission may, from time to time, appoint area committees for all or any of the areas fisted in Rule Three(a)(3) above. An area committee shall consist of two lawyer and one non-lawyer members, all of whom shall be residents in the area. Any procedural rules deemed necessary by the Commission for area committee operations shall be established by the Commission from time to time. Area committees shall have the powers and duties hereinafter set forth.

(b) Term of Office. The members of area committees shall serve at the pleasure of the Commission, and members of area committees may resign at their pleasure.

(c) Quorum. A majority of the members shall constitute a quorum of an area committee. The committee shall act only with the concurrence of a majority of the members present at a meeting at which a quorum is present. The area committee may elect a chairperson from among its members.

(d) Powers and Duties. Area committees are investigatoiy bodies and shall investigate matters that are assigned to them by the Commission. Each area committee shall have the following powers and duties:

(1) To take and have transcribed the testimony and evidence of witnesses who may be sworn by any person authorized by law to administer oaths;

(2) To make prompt written report of its investigations and findings to the Commission on Unauthorized Practice of Law;

(3) To submit to the Commission its report, together with the record of any proceedings before it.

(e) Compensation and Expenses. Members of an area committee on unauthorized practice of law shall receive no compensation for their services but may be reimbursed for their travel and other expenses incidental to the performance of their duties under these Rules.

RULE FIVE — INVESTIGATORS AND SPECIAL COUNSEL.

(a) Investigators. The Commission may appoint investigators, either lawyers or non-lawyers, to investigate complaints and report to the Commission.

(b) Special Counsel. If, as hereinafter provided, the Commission determines that a formal complaint should be filed to stop or prevent the unauthorized practice of law, the Commission may appoint special counsel for the purpose of preparing and filing such a complaint and conducting the prosecution thereof. Special counsel shall be lawyers who are residents of the State of Montana and who are duly licensed and admitted to practice in the State of Montana.

RULE SIX — INVESTIGATION AND PRELIMINARY PROCEEDINGS.

(a) Screening Complaints. All complaints alleging the unauthorized practice of law shall be referred to the Commission. Upon preliminary consideration by the Commission, if it appears to the Commission that the facts do not indicate the unauthorized practice of law, the Commission may dismiss the matter and so notify the complainant. If the matter is not dismissed by the Commission after preliminary consideration, the Commission may refer the matter for investigation either to an area committee or to an investigator. Also, the Commission may cause an investigation to be instituted if it becomes aware, by any means, of information of possible unauthorized practice of law. Unless the Commission directs otherwise, the respondent shall be notified by the Commission that the matter has been referred to an area committee or investigator and the respondent shall be afforded an opportunity to be heard by the area committee or by the investigator. Within thirty (30) days after completion of investigations, area committees or investigators shall submit to the Commission a written report. Area committees and investigators may, but are not required to, submit with their reports recommendations that formal complaints be filed against respondents or that charges be dismissed. The Commission is not bound by such recommendations.

(b) Action by Commission. Upon receipt of the area committee’s • findings and recommendations, the Commission shall review the matter on the record before it to determine if there is probable cause to believe the respondent has engaged, or is about to engage, in the unauthorized practice of law. Within sixty (60) days following receipt of the report, the Commission may:

(1) Adopt, modify or reject the fin dings and recommendations;

(2) Remand the matter to the area committee for further investigation;

(3) Issue a cease and desist letter and/or seek seek assurance of voluntary compliance from the respondent;

(4) Approve the filing of a civil injunctive proceeding as provided in Rule Eight(a);

(5) Approve the filing of a civil contempt proceeding as provided in Rule Eight(b);

(6) Recommend the filing of a criminal contempt proceeding as provided in Rule Eight(c).

RULE SEVEN — VOLUNTARY COMPLIANCE.

(a)The Commission may accept an assurance of voluntary compliance that respondent will not continue the unauthorized practice of law. An assurance of voluntary compliance shall be in writing and shall be filed in the official records of the Commission.

ft)) A violation of such assurance of voluntary compliance shall establish a presumption that the person subject thereto knows, or in the exercise of due care should know, that he or she has violated the law prohibiting the unauthorized practice of law.

RULE EIGHT — FORMAL PROCEEDINGS.

Formal proceedings shall be initiated and processed under the following procedures:

(a) Civil Injunctive Proceedings.

(1) Complaints shall be by written petition filed by the Commission in its name with the district court in the district in which the respondent resides or maintains his or her principal place of business.

(2) Each such petition shall be processed in the district court in accordance with the Montana Rules of Civil Procedure and the laws of the State of Montana.

(b) Civil Contempt Proceedings.

(1) A civil contempt proceeding for unauthorized practice of law, as provided by § 37-61-210, MCA, shall be prosecuted in the manner provided by § 3-1-501 et seq., MCA.

(2) The procedure and punishment for a civil contempt shall be provided by § 3-1-501 et seq., MCA.

(3) Nothing set forth herein shall be construed to prohibit or limit the right of the district court to issue a permanent injunction in lieu of or in addition to any punishment imposed for a civil contempt.

(c) Criminal Contempt Proceedings.

(1) If a respondent violates a court-ordered injunction, the Commission may request the county attorney in the county where the alleged violation occurred to prosecute the respondent for criminal contempt, pursuant to § 45-7-309, MCA.

(2) Once the Commission has recommended prosecution to the county attorney, the Commission shall take no further action unless it deems the county attorney’s actions unacceptable. In that event, the Commission may contact the attorney general and request that the attorney general pursue the alleged violation.

RULE NINE — OATHS, SUBPOENA POWER AND DISCOVERY.

(a) Oaths. Any member of the Commission and any member of an area committee may administer oaths and affirmations in matters pending before the Commission or an area committee.

(b) Subpoenas. The Chairperson or Vice-Chairperson of the Commission may, at the request of an area committee investigator, special counsel, or respondent, compel, by subpoena, the attendance of witnesses and the production of pertinent books, papers, and documents.

Any person subpoenaed to appear and give testimony, or to produce pertinent books, papers or documents, who fails or refuses to appear or to produce such books, papers, or documents, or any person having been sworn to testify, who refuses to answer any proper questions, may upon request of the Commission be cited for contempt of the Supreme Court, which proceeding may be brought by the Commission in any district court in the State, the Supreme Court hereby granting the jurisdiction to hear such contempt proceedings to the district courts. Proceedings before a district court shall be had as in cases of other contempts. A district court may, upon proper application, enforce the attendance of any witness and the production of any documents subpoenaed.

(c) Quashing Subpoena. Any attack on the validity of a subpoena so issued shall be heard and determined by the Chairperson of the Commission, subject to review by any district court of the State, the Supreme Court hereby granting to the district courts the jurisdiction to hear such proceedings.

(d) Discovery. Special counsel and respondent shall be afforded reciprocal discovery. Disputes concerning the scope and other aspects of discovery shall be determined by the Chairperson of the Commission.

RULE TEN — IMMUNITY.

(a) Complaints, testimony and other presentation or arguments submitted to the Commission on Unauthorized Practice of Law, an area committee, any member of the Commission or of any such committee, and any Commission investigator or special counsel, all proceedings and conduct maintained or engaged in, and all testimony and showings with respect to any of said matters shall be absolutely privileged, and no civil litigation predicated thereon may be instituted or maintained.

(b) Members of the Commission on Unauthorized Practice, members of the area committees, investigators, special counsel, and members of their respective staffs shall be immune from civil suit and damages for any conduct or occurrence in the course of or arising out of performance of any official duties in connection with these Rules.

RULE ELEVEN — COMPENSATION AND EXPENSES.

(a) Commission and Area Committee Members. The members of the Commission and members of an area committee shall receive no compensation for their services, but may be reimbursed for their travel and other expenses reasonably incurred by them in the performance of their duties under these Rules, if authorized pursuant to any budget for the Commission approved by the Supreme Court.

(b) Investigators and Special Counsel. Investigators and special counsel shall be compensated in such amounts, and shall be entitled to reimbursement for travel and other expenses reasonably incurred by them in the performance of their duties under these Rules, as the Supreme Court may authorize from time to time.

(c) Witness Fees. Witness fees and mileage for witnesses in Commission or area committee proceedings shall be the same as provided by law for witnesses in civil actions in the district courts of the State of Montana.


text:
    The Honorable C.B. McNeil, Chairman, The Honorable Leif B. Erickson, The Honorable Ed. McLean, Judges.
    MARCH 1990 CALENDAR
    FROM: THE DISTRICT COURT OF THE FIRST JUDICIAL DISTRICT, COUNTY OF LEWIS AND CLARK,
    STATE OF MONTANA, Plaintiff, vs. JERRY W. BRANDER, Defendant.
    NO. ACD-86-035 DECISION
    DATED this 8th day of March, 1990.
   On April 21, 1989, the Defendant had his sentence for Assault revoked. He was sentenced to ten (10) years with five (5) years suspended plus conditions and under no circumstances can he operate a motor vehicle at any time.

On March 8, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Peter Steele, of the Montana Defender Project. The state was not represented.

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that sentence imposed shall be affirmed.

The reason for the decision is based upon Rule 17 of the Rules of the Sentence Review Division, that the sentence imposed by the District Court is presumed correct.


text:
    FROM: THE DISTRICT COURT OF THE FOURTEENTH JUDICIAL DISTRICT, COUNTY OF MEAGHER,
    STATE OF MONTANA, Plaintiff, vs. JOHN A. HARTMAN, Defendant.
    NO. CR-89-01 DECISION
    DATED this 8th day of March, 1990.
   On May 2, 1989, the Defendant was sentenced to Count I, Intimidation, ten (10) years;; Count II, Attempted Mitigated Deliberate Homicide, eighteen (18) years plus two (2) years for the use of a dangerous weapon to run consecutively; Counts I and II shall be served concurrently; dangerous designation.

On March 8, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Lois Adams, of the Montana Defender Project and Mark Yeshe, Attorney at Law from Helena. The state was not represented.

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence imposed shall be affirmed.

The reason for the decision is based upon Rule 17 of the Sentence Review Division’s Rules, the district court judge is presumed correct.


text:
    FROM: THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT, COUNTY OF MISSOULA,
    STATE OF MONTANA, Plaintiff, vs. ALLEN E. NELSON, Defendant.
    NO. 7987 DECISION
    DATED this 9th day of March, 1990.
   On January 17, 1990 the Defendant had his sentence for Attempted Aggravated Assault revoked. He received eight (8) years, dangerous designation, and ineligible for parole until defendant presents a plan to the Parole Board for alcohol treatment upon release from Montana State Prison; plus 108 days credit for time served.

On March 9, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Dirk Beccari, Attorney at Law from Missoula. The state was not represented.

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be modified by changing the dangerous designation to non-dangerous offender. The remaining portion of the sentence shall remain the same.

The reasons for the modification are the case of State v. Beecham, 616 P.2d 337, and the Sentence Review Division’s belief that the change in designation from non-dangerous to dangerous after the date of the offense would amount to an ex post facto application of the law to the detriment of the defendant.


text:
    FROM: THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT, COUNTY OF RAVALLI,
    STATE OF MONTANA, Plaintiff, vs. ROBERT LEE BAUER, Defendant.
    NO. CR-89-31 DECISION
    DATED this 8th day of March, 1990.
   On July 5, 1989, the Defendant was sentenced to two counts of Theft, 10 years on the felony theft and six months in the County Jail on the misdemeanor theft, to be served concurrently; $510 in restitution to victims and 75 days credit for time served.

On March 8, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Peter Steele, of the Montana Defender Project. The state was not represented.

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence imposed shall be affirmed.

The reason for the decision is based upon the presumption of the correctness of the sentencing judge.


text:
    FROM: THE DISTRICT COURT OF THE SIXTEENTH JUDICIAL DISTRICT, COUNTY OF ROSEBUD,
    STATE OF MONTANA, Plaintiff, vs. CODY R. MIX, Defendant.
    NO. DC-87-29 DECISION
    DATED this 8th day of March, 1990.
   On March 31, 1988, the Defendant was sentenced to one hundred 5(100) years for Deliberate Homicide plus ten (10) years for the use of a weapon; the sentences shall be served consecutively; and he must complete restitution for Court Appointed Counsel; restitution for expenses of the victim’s funeral in the amount of $5,185; plus receive credit for 211 days credit for time served; dangerous designation.

On March 8,1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Roger Carey, of the Montana Defender Project. The state was represented by Marvin Quinlan, Deputy County Attorney from Rosebud County.

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence imposed shall be remanded back to the Sixteenth Judicial District for findings as to the reasons for designating the defendant as a dangerous offender for parole purposes as required by MCA, Sec. 46-18-404(3).

The sentence is further remanded to the District Court to either suspend the restitution ordered for the cost of court appointed counsel and for expenses of the victim’s funeral or to suspend a portion of the sentence imposed to allow defendant time within which to pay such restitution; restitution may only be ordered as a reasonable condition during the period of a suspended or deferred sentence, pursuant to MCA, Sec. 46-18-201.

The sentence shall then be returned to the Sentence Review Division for its final decision.


text:
    FROM: THE DISTRICT COURT OF THE THIRTEENTH JUDICIAL DISTRICT, COUNTY OF YELLOWSTONE,
    STATE OF MONTANA, Plaintiff, vs. ROBERT ELMORE FRIES, Defendant.
    NO. DC-88-362 DECISION
    DATED this 8th day of March, 1990.
   On May 4, 1989, the Defendant was sentenced to three (3) counts of Deviate Sexual Conduct and was sentenced to twenty (20) years on each count to be served concurrently.

On March 8, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Michael G. Moses and Jay F. Lansing, Attorneys at Law from Billings. The state was represented by Brent Brooks, Deputy County Attorney from Yellowstone County.

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence imposed by the District Court is presumed correct. The Sentence Review Division will also add an additional provision to the Judgment and that is that the Defendant not be considered for parole until he has successfully completed the inpatient sex offender program at the Montana State Prison.

The reason for the decision is based upon Rule 17 of the Rules of the Sentence Review Board.


text:
    FROM: THE DISTRICT COURT OF THE THIRTEENTH JUDICIAL DISTRICT, COUNTY OF YELLOWSTONE,
    STATE OF MONTANA, Plaintiff, vs. HAROLD D. DOWDY, JR., Defendant.
    NO. BC-89-398 DECISION
    DATED this 8th day of March, 1990.
   On November 21, 1989, the Defendant was sentenced to Count I, Burglary, ten (10) years; Count II, Theft, ten (10) years; the sentences shall be served concurrently; with 100 days credit for time served.

On March 8, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by David L. Ohler, of the Montana Defender Project. The state was represented by Brent Brooks, Deputy County Attorney from Yellowstone County.

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence is affirmed.

The reason for the decision is based upon Rule 17 of the Sentence Review Rules, the District Court Judge is presumed correct.


text:
    FROM: THE DISTRICT COURT OF THE THIRTEENTH JUDICIAL DISTRICT, COUNTY OF YELLOWSTONE,
    STATE OF MONTANA, Plaintiff, vs. LANCE KEVIN KOLESAR, Defendant.
    NO. DC-87-308 DECISION
    DATED this 8th day of March, 1990.
   On April 1,1988, the Defendant was sentenced to Count I and VIII, Robbery, twenty (20) years on each count plus ten (10) years for the use of a weapon to run consecutively plus twenty (20) years for persistent felony offender to run consecutively; Counts II, III, IV, V, VI and VII, Assault, ten (10) years on each counts plus five (5) years for persistent felony offender to run consecutively; Counts I, II and VIII shall run consecutive but concurrent to Counts III, IV, V, VI and VII for a total of 115 years; plus 177 days credit for time served; dangerous designation and ineligible for parole and participation in the supervised release program.

On March 8, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Rose Mary Urbigkeit, of the Montana Defender Project. The state was represented by Brent Brooks, Deputy County Attorney from Yellowstone County.

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence is affirmed except to delete therefrom, the provision that the defendant is ineligible for parole. All other aspects of the judgment are affirmed.

The reason for deleting the ineligibility for parole provision from the judgment is to conform to the State policy permitting and encouraging rehabilitation.


text:
    FROM: THE DISTRICT COURT OF THE THIRTEENTH JUDICIAL DISTRICT, COUNTY OF YELLOWSTONE,
    STATE OF MONTANA, Plaintiff, vs. CHRIS R. MAHONEY, Defendant.
    NO. DC-89-256 DECISION
    DATED this 8th day of March, 1990.
   On November 22, 1989, the Defendant was sentenced to Count I, Attempted Deliberate Homicide, forty (40) years Plus eight (8) years for the use of a weapon to run consecutive; Count II, Attempted Sexual Intercourse without Consent, eighteen (18) years, Counts I and II shall run consecutively; plus 177 days credit for time served; and the defendant must complete the sex offender program at Montana State Prison; and the defendant shall not live within 500 miles of the victim. He shall be designated a dangerous offender for purposes of parole.

On March 8, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Thomas J. Schmitt, of the Montana Defender Project. The state was represented by Brent Brooks, Deputy County Attorney from Yellowstone County.

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the judgment imposed by the District Court is affirmed.

The reason for the decision is based upon Sentence Review Rule 17. That the sentence is presumed correct.


author: JUSTICE SHEEHY

text:
    In re the MARRIAGE OF EDGAR C. SCOTT, Petitioner and Respondent, v. CHARLOTTE L. SCOTT, Respondent and Appellant.
    No. 89-434.
    Submitted on briefs Aug. 23, 1990.
    Decided Dec. 12, 1990.
    As Modified Dec. 20, 1990.
    247 Mont. 37.
    803 P.2d 620.

      Paul N. Cooley, Missoula, for respondent and appellant.
    Daniel R. Sweeney, Butte, for petitioner and respondent.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

Charlotte Loy Scott appeals the dissolution proceeding in the District Court of the Second Judicial District, Silver Bow County. We reverse and remand.

The parties raise the following issues on appeal:

1. Whether the District Court erred in not ordering the sale of the family residence?

2. Whether the District Court erred in receiving the inventory and appraisement of the Elmer L. Mayhew Estate?

3. Whether the District Court erred in valuing Charlotte’s equity in her 1976 Cadillac?

4. Whether the District Court erred in equitably distributing the marital estate?

5. Whether the District Court failed to take into account Edgar’s vested benefits raider the company pension plan?

6. Whether Edgar failed to disclose all of his Westinghouse savings plan?

7. Whether the District Court failed to account for funds which Edgar applied to marital obligations?

8. Whether the District Court erred in valuing Charlotte’s equity in the family home at $39,500?

9. Whether the District Court erred in denying Charlotte maintenance?

Charlotte and Edgar were married in Malta, Montana, on June 14, 1964. Twenty-four years later, on August 22, 1988, Edgar filed a petition for dissolution with the District Court. The couple have four children. At the time of the hearing, however, only Rhonda, was under the age of 18, and thus the issues of child support and custody only concern Rhonda.

Charlotte has a high school education, and has been a housewife during all of the parties’ 25-year marriage. Charlotte possesses no real job skills, and would require extensive job training to compete in the current job market. To compound Charlotte’s economic woes, she suffers from chronic alcoholism.

The District Court found that Charlotte has admitted “to receiving a devise from her father, Elmer Mayhem’s Estate in the amount of $42,000, of which she has spent approximately $34,000 for her living expenses since their separation, which were not reimbursed by petitioner and has assigned to her sister an addition sum of approximately $66,420 from her father’s estate.” Furthermore, the District Court explained that Charlotte “may be entitled to approximately $400 per month from promissory notes due and owing in her father’s estate.”

Edgar has a college education, and earns approximately $50,974 a year plus bonuses as an engineer for Westinghouse. He supports Rhonda without financial assistance from his wife. His job with Westinghouse provides him with full benefits, life insurance and a pension. The parties dispute the value of the pension. Charlotte contends the pension plan has a present value of $51,000 that will pay Edgar about $1,400 per month at retirement if he quit working today. Edgar values his pension plan at $18,214. The District Court agreed with Edgar.

The District Court found the parties acquired the following real property:

Family residence, Butte, Mt (FMV) $140,000.00
Mortgage Balance due 61,000.00
Equity $ 79,000.00
Condominium, Phoenix, Az (FMV) $ 47,000.00
Mortgage Balance Due 21,858.00
Equity 25,142.00

The District Court awarded the possession and use of the family residence in Butte to Edgar, until Rhonda reached the age of majority, or is otherwise emancipated. At that time the court ordered the residence sold and half of the equity in the family home, as of the date of the decree, turned over to Charlotte. The District Court awarded the Phoenix condominium solely to Charlotte. The District Court suggested that Charlotte sell the condominium to aid in her maintenance.

Next, the District Court found the parties acquired the following personal property during their marriage:

Cash in American Federal Savings $12,800
Petitioner’s Westinghouse Retirement 18,214
Petitioner’s Westinghouse Savings Plan 14,828
Kemper Funds IRA’s 14,230
Stocks 11,084
Household furnishings 8,240
1976 Cadillac 1,500
1956 Austin Healey 500
TOTAL $81,396

The District Court also found the parties incurred the following debts during their marriage:

VISA $ 2,415
J.C. Penney 368
Dr. Silva - Dentist 341
Dr. Milanovich - Orthodontist 1,795
Dr. Charles - Eye Specialist 345
University Phyicians - Eye Specialist 3,016
University Hospital 176
First Citizens Bank - Loan 2,900
State of Montana Hospital 1,994
Highland View 898
A-l Ambulance 239
Rocky Mtn. Plastic Surgery 7,026
Butte Pathology 195
OB GYN 868
TOTAL $22,576

The District Court applied the parties’ cash on deposit in the American Federal Savings and Loan Association in the amount of $12,800, and $4,000 of the parties’ Westinghouse stock to the above debts, leaving a balance due of $5,776. The court ordered Edgar responsible for the remaining $5,776.

Based on the above figures the District Court found the net value of the marital estate was $168,738. The District Court then distributed the marital estate as follows:

Petitioner ÍEdgar)

Kemper IRA $ 7,115
Petitioner’s Westinghouse Retirement 18,214
Home Equity - family residence 39,500
Peitioner’s Westinghouse Savings 14,828
Household Furnishings 4,212
1956 Austin Healy 500
TOTAL $84,369
Respondent ('Charlotte)
Kemper IRA $ 7 ,115
Condomium in Phoenix 25,142
1976 Cadillac 1,500
Stocks 7,084
Household Furnishings 4,028
Home Equity - Family 39,500
TOTAL $84,369

Charlotte testified that she needed maintenance in the amount of $500 per month. The District Court determined that Charlotte was not in need of maintenance in addition to her share of the marital estate.

The District Court awarded custody of Rhonda to Edgar, and granted Charlotte liberal vitiation rights. The court did not hold Charlotte responsible for any child support obligations while Rhonda is in the care and custody of her father.

Charlotte now, with different counsel, challenges the District Court’s valuation and distribution of the marital estate. Our standard of review is that the District Court’s judgment, when based upon substantial credible evidence, will not be altered unless a clear abuse of discretion is shown. In Re the Marriage of Watson (1987), 227 Mont. 383, 387, 739 P.2d 951, 954; In Re the Marriage of Stewart (1988), 232 Mont. 40, 42, 757 P.2d 765, 767. With this standard in mind, we now review the issues presented to this Court.

I. Whether the District Court erred in not ordering the sale of the family residence?

Charlotte contends that given her immediate need for housing, at the time of the decree she was living with her sister, it was an abuse of discretion not to order the family home sold. We disagree with Charlotte. The District Court awarded the possession and use of the family home to Edgar until Rhonda “reaches the age of majority, or is otherwise emancipated.” The family home is necessary to provide a stable environment for the parties’ minor child Rhonda as determined by the District Court.

Next Charlotte relying on In Re the Marriage of Hereford (1986), 223 Mont. 31, 34-35, 723 P.2d 960, 962, argues that the District Court failed to place a burden on an identifiable party with regards to the eventual sale of the family home. In Hereford, we discussed the problems the parties face when a decree fails to make one party responsible for the sale of the family home:

“The problem in this case is in the drafting of the original dissolution decree. The language ‘the parties shall cause the said property to be appraised by a qualified appraiser, and placed for sale ...’ is not a model of clarity in drafting. The decree places no specific burden on an identifiable party within any time period. It requires only that someone appraise and list the house. It technically does not even require the house to be sold. The property could be, and has been, listed for years without selling. Yet sales remain within the language, if not the spirit, of the decree. Clearly the decree must be modified to place specific burdens on identifiable parties to get the house sold within a reasonable time.”

Hereford, 723 P.2d at 962.

The District Court’s order does provide a specific time for the sale of the family home, Rhonda’s majority or her emancipation, the order, however, fails to list a specific person responsible for the sale. Rather than remand this issue back to the District Court, we order Edgar responsible for the sale of the property at the time Rhonda reaches her majority or is otherwise emancipated. This revision of the District Court’s order complies with our holding in Hereford.

II. Whether the District Court erred in receiving the inventory and appraisement of the Elmer L. Mayhew Estate?

Charlotte claims the District Court abused its discretion when it received the inventory and appraisement of her father’s estate without taking testimony to determine its weight and credibility. During the dissolution hearing, the parties disputed the amount of the devise Charlotte renounced from her father’s estate. In order to determine the value of the assets renounced by Charlotte, the District Court order Charlotte’s trial counsel to file the inventory and appraisement. He filed the inventory and appraisement in compliance with the court order and made no request of a hearing to determine the document’s weight and credibility.

The District Court could clearly ascertain from the inventory and appraisement the size of the devise that Charlotte renounced. Contrary to Charlotte’s assertion, we see no need for a hearing on the credibility of this document, especially in light of the fact that her own counsel submitted it to the District Court. The District Court, after reviewing the inventory and appraisement, and considering this information with the evidence relating to this matter at the hearing properly concluded that Charlotte had renounced over $66,000 in assets from her father’s estate and found she may be entitled to an additional $400 per month still available from her father’s estate.

HI. Whether the District Court erred in valuing Charlotte’s equity in her 1976 Cadillac?

Charlotte purchased the 1976 Cadillac from her father’s estate for $450. The car had been driven over 100,000 miles when Charlotte purchased it. As the record reveals, she purchased the Cadillac when the parties, though separated, were still married. At the hearing, Charlotte valued the car at $500. In contrast, Edgar testified that through his conversation with various automobile dealers, the fair market value of the Cadillac ranged between $800 and $1,800. Edgar valued the Cadillac at $1,500, and the District Court adopted Edgar’s value for the car. The record reveals that no written estimates were submitted to the court by either party.

Now, Charlotte claims the District Court’s finding is not supported by substantial credible evidence. While it is true the District Court was not given the best evidence on which to base its valuation of the Cadillac, the District Court’s determination of the Cadillac’s value will stand unless it is not supported by the record. In Re the Marriage of Hurley (1986), 222 Mont. 287, 296, 721 P.2d 1279, 1285; In Re the Marriage of Luisi (1988), 232 Mont. 243, 247, 756 P.2d 456, 459. Upon the review of the record, the District Court’s finding is supported by the record. Charlotte cannot now find fault with the District Court’s valuation of the Cadillac, when she herself offered no professional estimates of the Cadillac’s value at the hearing.

In the alternative, Charlotte claims the car is not part of the marital estate, since she purchased it from her father’s estate when the parties were separated. Generally, property acquired during the course of a marriage, belonging to either or both parties however acquired, is part of the marital estate. Luisi, 756 P2d at 458; See § 40-4-202, MCA. The Cadillac, though purchased by only Charlotte, was bought during the marriage of the parties, thus making the Cadillac a marital asset distributable by the District Court.

IV. Whether the District Court erred in equitably distributing the marital estate?

The issue before this Court is whether the District Court complied with the provisions under § 40-4-202, MCA, in making the distribution of the marital property in an equitable manner. In In Re the Marriage of Dirnberger (1989), 237 Mont. 398, 401, 773 P.2d 330, 332, we reiterated the longstanding rule that district courts must determine the net worth of the parties in order to properly comply with § 40-4-202, MCA. In Dirnberger, we explained:

“The basic goal is that the court must ‘finally equitably apportion between the parties the property and assets ...’ In construing this statute, this Court has consistently held that this apportionment must be predicated upon a finding of the net worth of the estate. Only after a finding of net worth can the trial court make an equitable apportionment. The District Court must make complete findings of fact, including assets and liabilities, from which can be established a net worth of the parties. Schultz v. Schultz (1980), 188 Mont. 363, 613 P.2d 1022, and cases cited therein; Cook v. Cook (1980), 188 Mont. 472, 614 P.2d 511. Additionally, ‘[i]f the District Court’s findings and conclusions do not reflect the net worth of the parties’ marital assets at the time of the divorce, this Court on appeal cannot determine if the property was equitably divided.’ Robertson v. Robertson (1979), 180 Mont. 226, 231, 590 P.2d 113, 116.”

The District Court findings reveal the parties had assets totaling $185,538 and debts of $22,576. In order to reduce the debts of the couple the District Court ordered that “the parties cash on deposit in the American Federal Savings and Loan Association in the amount of $12,800 and $4,000 worth of the parties’ Westinghouse stock should be applied to the payments of these obligations leaving a balance of $5,776. The petitioner shall be responsible for the payment of these obligations ...” The District Court then found the net worth of the marital estate to be $168,738. Next, the District Court split the value of the marital estate evenly between the parties, the court awarded $84,369 for Charlotte and $84,369 for Edgar.

Charlotte finds fault with the amount of debt the District Court listed in its findings. She maintains the District Court abused its discretion when it blindly accepted Edgar’s list of the parties’ marital debts. The record does show that the District Court accepted most of Edgar’s valuation of the couple’s debts. According to Charlotte, Edgar over-estimated the amount of the couple’s debt in his proposed findings, making it impossible for the District Court to properly calculate the parties’ net worth. As Charlotte correctly notes, without a proper calculation of net worth, this Court cannot determine if the District Corut equitably divided the marital estate. Dirnberger, supra. Edgar argues the District Court’s findings are based on substantial evidence and thus Charlotte’s bare allegations are not grounds for reversal by this Court. To determine if the District Court’s findings are based on substantial evidence we must review the disputed list of debts in the District Court’s findings.

The first debt in dispute is the VISA bill. At the hearing, and in his proposed findings, Edgar claimed the parties sustained a debt to VISA amounting to $2,415. As seen in the court’s findings, the court accepted Edgar’s claim. Charlotte alleges the record supports a different amount and we agree. In his December 21,1988, answer to interrogatory No. 18, Edgar claimed that the VISA bill was originally $2,476.42 and he paid $2,174.27 leaving a balance still due of $302.15 in September, 1988. However, the VISA bill ballooned up to $2,415 by April, 1989. Edgar claims this VISA debt was incurred between the time interrogatories were answered and the hearing, a period of 7 months. Edgar explained the purchases on the VISA card consisted of marital liabilities such as clothing for the parties’ child. Edgar failed to offer, and the court did not request him to produce, any VISA receipts to substantiate his claim that the VISA bill paid exclusively for marital liabilities. We remand the valuation of the VISA debt to the District Court to determine if the VISA charges covered marital liabilities. Presently, the record does not support such a large VISA bill. Edgar must substantiate the $2,415 VISA bill with something more than a mere statement that it was used for clothing for the parties’ minor child.

The second debt that Charlotte alleges is not supported by the record is $7,026 to Dr. Stronger of Rocky Mountain Plastic Surgery. In his proposed findings Edgar listed the bill as $7,026. Edgar admitted in his answer to interrogatories, and during the hearing that his insurance medical plan reimburses the doctor or Edgar for at least 85% of the provided medical services. After Edgar submitted his bill of $7,026 to Rocky Mountain Plastic Surgery, the District Court discovered during the hearing that Edgar received an insurance check of $1,900 to cover a portion of the Rocky Mountain Plastic Surgery bill. The court ordered Edgar to apply the $1,900 to the debt, and Edgar agreed to turn the check over to Rocky Mountain Plastic Surgery. Despite this testimony in the record, the District Court’s findings do not show a bill of $5,176 ($7,026 minus $1,900), but the whole $7,026 bill, with the $1,900 check conspicuously not deducted from the $7,026 original bill.

Edgar argues that since the District Court absolved Charlotte from paying any of the marital debt, she now has no reason to challenge the trial court’s findings on this point. We disagree with Edgar’s reasoning. First, in order for the District Court to equitably divide up the marital estate the court needs to know the net worth of the parties. Again, the District Court must make complete findings of fact, including assets and liabilities, from which can be established a net worth of the parties. Dirnberger, 773 P.2d at 332. Here, when the District Court failed to subtract the $1,900 insurance check from the original debt, the court failed to make a proper finding regarding one of the parties’ liabilities, and thus the court could not correctly establish the couple’s net worth. If the District Court’s findings and conclusions do not represent the net worth of the couple’s marital assets at the time of their dissolution, this Court on appeal cannot determine if the property was equitably distributed. Vivian v. Vivian (1978), 178 Mont. 341, 344, 583 P.2d 1072, 1074; Robertson v. Robertson (1979), 180 Mont. 226, 231, 590 P.2d 113, 116.

Furthermore, the District Court took $16,800 in the parties’ assets to reduce the original $22,576 debt. The District Court may not have chosen to apply these assets to the parties’ debt if the debt was less than $22,576. A court cannot equitably distribute property if its calculations are based upon faulty asset and debt figures. Accordingly, we remand to the District Court the valuation of the Rocky Mountain Plastic Surgery debt.

In addition to the Rocky Mountain Plastic Surgery, Charlotte claims that a number of other debts listed in the District Court’s findings as unpaid debts were paid by the insurance company before the April, 1989 hearing. Charlotte claims Edgar deceived the court by not applying the insurance reimbursement checks to the parties’ marital medical debts. Charlotte’s allegations are supported by insurance records that her appellate counsel discovered after the District Court hearing, and now seeks to introduce them for the first time on appeal. Unfortunately, however, this Court cannot accept the insurance company records as evidence of Edgar’s true debt since they were not introduced first in the District Court. This Court will not consider evidence extraneous to the record. Section 3-2-204, MCA; Downs v. Smyk (1979), 185 Mont. 16, 24, 604 P.2d 307, 312; In Re the Marriage of Stout (1985), 216 Mont. 342, 351, 701 P.2d 729, 735. Section 3-2-204(5), MCA, states in pertinent part:

“In equity cases and in matters and proceedings of an equitable matter, the Supreme Cotut shall review all questions of fact arising upon the evidence presented in the record ...”

Accordingly, we may not consider the insurance company records since they were not introduced first in the District Court. They may be considered on remand.

V. Whether the District Court failed to take into account Edgar’s vested benefits under the company pension plan?

Charlotte maintains the District Court failed to take into account Edgar’s vested benefits under the Westinghouse pension plan, primarily because Edgar never disclosed then. In interrogatory No. 60, Charlotte asked Edgar, “Do you participate in any pension program in connection with your employment?” Edgar answered affirmatively, and allegedly attached the pension plan booklet to his interrogatories. Charlotte claims she never received the pension booklet, and only obtained the pension booklet by subpoena after the entry of decree in preparation for her motion for a new trial. In his answer to interrogatory No. 67, Edgar claimed the pension plan amounted to $18,214. This figure was later adopted in the District Court’s findings as “Petitioner’s Westinghouse Retirement.”

Charlotte now claims Edgar failed to specify the “vested matching contributions” portion of the pension plan in his answer to her interrogatory requests. Edgar maintains that he complied fully with Charlotte’s discovery requests, and supplied all the requested information, including the pension booklet. According to Edgar, the interrogatories were placed into evidence by Charlotte without the booklet attached. Edgar argues if the pension booklet was not received prior to the final hearing, her trial attorney would have noted this oversight. There is no such objection by Charlotte’s counsel in the record.

Furthermore, Edgar claims the amount of the pension plan or the number of pension plans were never contested by Charlotte in the District Court and she never presented any argument which conflicted with Edgar’s pension valuation. Edgar relying on Rule 52, M.R.Civ.P., argues that the trial court made a finding based on substantial credible evidence presented at the hearing and it must be upheld by this Court. We agree the time for Charlotte to raise contentions regarding the pension plan was at the District Court. The District Court’s finding is supported by substantial credible evidence in the record and will not be overturned on appeal. Stewart, 757 P.2d at 76; Watson, 739 P.2d at 951. However, in view of the remand here, the issue may be reviewed in the District Court.

VI. Whether Edgar failed to disclose all of his Westinghouse savings plan?

Edgar claimed in his proposed findings that his employee savings plan totaled $14,828, and this figure was later adopted by the District Court. After the hearing, via subpoena, Charlotte discovered that Edgar’s Westinghouse savings plan allegedly amounted to over $24,000, not the $14,828 claimed by Edgar. Charlotte contends Edgar purposely excluded an “after tax account” and a “401(k) account” from the District Court. Edgar claims he properly complied with Charlotte’s discovery requests, and presented the savings plan information supplied to him by Westinghouse. Furthermore, he claims that Charlotte’s exhibit showing the alleged extra savings plans is dated August 2, 1989, several months after the final hearing, and therefore it has no bearing on the June 9, 1989 District Court order.

The District Court’s finding of $14,828 in the Westinghouse Savings plan was supported by the evidence presented to the court. We will not reverse the finding with evidence that lists the alleged status of the savings plan several months after the District Court hearing.

Accordingly, we find the District Court’s findings regarding the savings plan are based upon the substantial credible evidence in the record. Stewart, 757 P.2d at 767; Watson, 739 P.2d at 954.

VII. Whether the District Court failed to account for funds which Edgar applied to marital obligations?

In June 1988, Charlotte was involved in a car accident, from which she was later sued. Edgar worried about the couple’s liability in the lawsuit, forged his wife’s name, and withdrew $25,884 from the couple’s cash account at D.A. Davidson. Edgar then placed one-half of the couple’s funds in a joint savings account and placed the rest in a trust account with himself as the trustee. The money in the joint savings account, according to Edgar, was used to pay off marital obligations. When this matter came before the District Court the only money left of the $25,884 D.A. Davidson account was the $12,942 in the trust account.

Charlotte claims Edgar lied to the court, and spent the joint savings account money for his own personal use rather than for marital obligations. At the hearing, Edgar could not present a complete list of marital expenses paid for by the joint savings account, so the District Court requested Edgar to submit an itemized list of expenses paid for with the $12,942 from the joint savings account to substantiate his claims. The record reveals Edgar did submit a list of expenses as ordered by the District Court. Contrary to Charlotte’s assertion, the itemized list of expenses supports Edgar’s claims that the $12,942 was used to pay marital obligations.

VIII. Whether the District Court erred in valuing Charlotte’s equity in the family home at $39,500?

The District Court in its findings valued Charlotte’s one-half equity in the home at $39,500, but then ordered that Edgar did not need to pay that amount until Rhonda “reaches the age of majority, or is otherwise emancipated.” Charlotte relying on In Re the Marriage of Kis (1982), 196 Mont. 296, 639 P.2d 1151; and In Re the Marriage of Summerfelt (1984), 212 Mont. 332, 688 P.2d 8, argues that the District Court must apply a present value to Charlotte’s equity in the house, not one in the future. Charlotte argues the court had an obligation to award interest until 1995 or reduce the wife’s awarded equity amount to a present value.

Charlotte’s counsel mistakes the meaning of present value, however. A present value determination is necessary where the recipient will be credited for the value of a payment or an object now, but which money or value of an object will be delivered to the recipient in the future. Here, Charlotte was awarded a present equity in the house of $39,500, but will not receive that amount until the house is sold in the future. Since the husband will continue to occupy the house, and in effect enjoy her contribution of $39,500 in equity until the house is sold, it would be more appropriate to provide that Charlotte will receive, when the house is sold, the principal sum of $39,500, plus an appropriate rate of interest per annum until she receives her money.

We remand the issue to the District Court to determine Charlotte’s right to interest based on her present equity of $39,500 in the home.

IX. Whether the District Court erred in denying Charlotte maintenance?

Charlotte testified that she needed maintenance of $500 per month, in order to maintain the standard of living achieved during the marriage, and to prevent her from becoming a ward of the State. The District Court determined that Charlotte “is not in need of maintenance in addition to the property division.”

In the past, this Court has held that “[generally, the award of maintenance is not favored in states, such as Montana, which have adopted the Uniform Marriage and Divorce Act. The intent of the drafters, as demonstrated by the Commission Comments to § 40-4-203, MCA, indicates a desire to ‘encourage the court to provide for the financial needs of the spouse by property disposition rather than an award of maintenance.’ ” Commission Comments MCA Annotations, Vol. 5, p. 145; Luisi, 756 P.2d at 459; see also In Re the Marriage of Johnsrud (1977), 181 Mont. 544, 572 P.2d 902.

Before a district court can order a maintenance award, the Court must equitably distribute the marital estate. Johnsrud, 572 P.2d at 905. As we stated in Johnsrud, “After the court makes a decision on property division, then any additional needs of spouse petitioning for maintenance should be readily apparent.” Johnsrud, 572 P.2d at 905; See also § 40-4-203(1), MCA. As we have previously explained, the District Court must determine the net worth of the parties in order to equitably distribute the marital property in accordance with § 40-4-202, MCA. Here, the District Court must properly apportion the marital estate.

We cannot effectively decide the issues of equitable division of the marital estate and maintenance until the court properly determines the net worth of the parties’ estate. Charlotte’s need for maintenance can only be determined after the court equitably divides the marital estate. Accordingly, the District Court shall address the issue of maintenance only after it determines the net worth of the parties’ estate and makes an equitable distribution of the marital estate.

Remanded for proceedings in accordance with this opinions.

JUSTICES HUNT, BARZ, McDONOUGH and WEBER concur.


text:
    APRIL 1990 CALENDAR
    The Honorable C.B. McNeil, Chairman, The Honorable Leif B. Erickson and The Honorable Ed McLean, Judges.
    FROM: THE DISTRICT COURT OF THE EIGHTH JUDICIAL DISTRICT, COUNTY OF CASCADE,
    STATE OF MONTANA, Plaintiff, vs. RICHARD PAUL HALL, Defendant.
    NO. CDC-87-026a DECISION
   On November 24,1987, the Defendant was sentenced to Count I, forty (40) years for Robbery; ten (10) years for persistent felony offender and ten (10) years for the use of a dangerous weapon, all sentences are to run consecutively. If paroled, the defendant is to pay restitution in the amount of $22,733; dangerous offender designation.

On November 16, 1989 the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Rose Mary Urbigkeit, of the Montana Defender Project. The state was represented by J.KimSchulke, Deputy County Attorney from Cascade County

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

After careful consideration, it was the unanimous decision of the Sentence Review Division that the sentence shall be remanded back to Judge Thomas McKittrick of the District Court in Cascade County pursuant to the State v. Camitsch case to make findings with respect to his reasons for designating the defendant as a dangerous offender.

January 30, 1990, Judge McKittrick filed findings as to his reasons for designating the defendant a dangerous offender.

Judge McNeil and Judge Erickson were the only judges present who sat on the sentence review panel at the time the sentence was remanded back to the Eighth Judicial District, therefore, it is their unanimous decision that the sentence shall be affirmed as originally imposed, including the designation of dangerous offender.

The reason for the decision is the district court judge is presumed correct.

DATED this 9th day of March, 1990.


text:
    FROM: THE DISTRICT COURT OF THE TWELFTH JUDICIAL DISTRICT, COUNTY OF CHOUTEAU,
    STATE OF MONTANA, Plaintiff, vs. CLARENCE DELBERT LABRECHE, Defendant.
    NO. DC-89-006 DECISION
    DATED this 8th day of March, 1990.
   On August 7, 1989, the Defendant was sentenced to Count I, R 2obbery, seven (7) years; Counts II, III, and IV, Assault, five (5) years on each count; said sentences are to run concurrent and concurrent to any sentence imposed in federal court; $3,000 fine; surcharge; 9 days credit for time served; dangerous designation.

On March 8, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant waived his right to be present and was represented by Walter M. Hennessey, Attorney from Butte.

The state was not represented.

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the Judgment will be affirmed with the following modification, in the Judgment of August 7,1989, page 3, line 11, delete the words “but not less than thirty (30) days prior to discharge” and substitute the following phrase “upon discharge from State and Federal custody to be paid during the term of his parole”.

The reason for the decision is not to relieve him from the payment of $3,000 nor to keep him in prison until he has paid the $3,000, but rather that it be paid after he has been paroled either from the State Prison or from his Federal custody, whichever comes later, but certainly before he is discharged from parole.


text:
    FROM: THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT, COUNTY OF DEER LODGE,
    STATE OF MONTANA, Plaintiff, vs. KEVIN T. MURPHY, Defendant.
    NO. DC-84-19 DECISION
    DATED this 8th day of March, 1990.
   On June 11, 1985, the Defendant was sentenced to Count I, Burglary, ten (10) years; Count II, Theft, ten (10) years; said sentences are to run consecutively; 84 days credit for time served plus any additional time served after sentencing; dangerous offender.

On March 8, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Lois Adams, of the Montana Defender Project. The state was not represented.

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

After careful consideration, it is the decision of the Sentence Review Division that the sentence shall be increased to twenty (20) years for Burglary; and the sentence for the Theft conviction shall remain at ten (10) years; however the two sentences shall run concurrently to each other. The dangerous designation will remain the same as originally imposed.

The reason for the decision is that the total sentence is appropriate considering the defendant’s history. He is being sentenced essentially for one act and that is the Burglary and under that circumstance the sentences shall run concurrently.

Hon. C. B. McNeil dissents. Judge McNeil would affirm the sentence imposed by the sentencing judge based upon the presumption of the correctness of the District Court Judge.


text:
    FROM: THE DISTRICT COURT OF THE TENTH JUDICIAL DISTRICT, COUNTY OF FERGUS,
    STATE OF MONTANA, Plaintiff, vs. LESTER HARTFORD, Defendant.
    NO. DC-88-16 DECISION
    DATED this 8th day of March, 1990.
   On April 17, 1989, the Defendant was sentenced to ten (10) years for Incest, he must successfully complete the alcohol treatment program and sex offender program prior to release from Montana State Prison; no unsupervised contact with his daughter or grandchildren; pay for all psychological counseling for Keil Randle as defendant is able.

On March 8, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Roger Carey, of the Montana Defender Project. The state was not represented.

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

After careful consideration, it is the -unanimous decision of the Sentence Review Division that the District Court Judgment is affirmed.

The reason for the decision is based upon the presumption that the District Court’s sentence is presumed correct.


text:
    FROM: THE DISTRICT COURT OF THE ELEVENTH JUDICIAL DISTRICT, COUNTY OF FLATHEAD,
    STATE OF MONTANA, Plaintiff, vs. RONALD E. CORK, Defendant.
    NO. DC-89-108 DECISION
    DATED this 9th day of March, 1990.
   On October 3, 1989, the Defendant was sentenced to twelve (12) years with five (5) years suspended for the crime of Burglary. He was given conditions and ordered to pay $1,250 restitution; and was given 13 days credit for time served; dangerous designation.

On March 9, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Kathleen O’Conner, of the Montana Defender Project. The state was not represented.

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

After careful consideration, it is the -unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is based upon Rule 17 of the Rules of the Sentence Review Division, that the sentence imposed by the District Court is presumed correct.


text:
    FROM: THE DISTRICT COURT OF THE FIFTH JUDICIAL DISTRICT, COUNTY OF JEFFERSON,
    STATE OF MONTANA, Plaintiff, vs. LELAND FRED DOCKEN, Defendant.
    NO. 1122 DECISION
    DATED this 8th day of March, 1990.
   On September 14, 1984, the Defendant was sentenced to one hundred (100) years for Deliberate Homicide. He was given credit for 147 days served and designated as a dangerous offender.

On March 8, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Mark T. Errebo, of the Montana Defender Project. The state was not represented.

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence imposed shall be affirmed.

The reason for the decision is based upon Rule 17 of the Rules of the Sentence Review Board, that the sentence imposed by the District Court is presumed correct.


text:
    FROM: THE DISTRICT COURT OF THE FIFTH JUDICIAL DISTRICT, COUNTY OF JEFFERSON,
    STATE OF MONTANA, Plaintiff, vs. LARRY L. HERRICK, Defendant.
    NO. 1236 DECISION
    DATED this 8th day of March, 1990.
   On March 15,1989, the Defendant was sentenced to eight (8) years for Theft, ineligible for parole until defendant has participated and completed the programs for drug and alcohol abuse at Montana State Prison; 198 days credit; dangerous offender.

On March 8, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Morgan Queal, of the Montana Defender Project. The state was not represented.

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence is affirmed as imposed.

The reason for the decision is based on Rule 17 of the Sentence Review Division Rules and the presumption that the sentence as imposed is correct.

The sentencing judge clearly pointed out in his sentence that the records of the two co-conspirators were substantially different.


author: Hon. Leif B. Erickson

text:
    FROM: THE DISTRICT COURT OF THE TWENTIETH JUDICIAL DISTRICT, COUNTY OF LAKE,
    STATE OF MONTANA, Plaintiff, vs. ALEXANDER RAYMOND COURVILLE, Defendant.
    NO. DC-87-86 DECISION
   On February 24, 1988, the Defendant was sentenced to Count I, Se 2xual Intercourse without Consent, twenty (20) years; Count II, Aggravated Burglary, twenty (20) years with ten (10) years suspended plus conditions; Counts I and II shall be served consecutively; ten (10) years for persistent felony offender to run consecutive to Counts I and II; 166 days credit for time served; dangerous designation.

On March 9, 1990, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Dave Ohler, of the Montana Defender Project. The state was represented by Larry Nistler, County Attorney from Lake County.

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended by changing the wording of the February 24,1988 Judgment. Beginning at page 2, line 1, the Judgment shall read as follows: the sentence imposed above. The Defendant is designated as a persistent felony offender, under MCA 46-18-502, because he committed these felony offenses within five years of his discharge on parole for a prior felony conviction ofRobbeiy

The Sentence Review Division finds that it was harmless error to indicate the discharge was from parole because the defendant had in fact been incarcerated through a period of time within five years of the date of his sentence and therefore, it does constitute a prior felony offender for purposes of the statute.

DATED this 9th day of March, 1990.

Judge Boyd and Judge McLean vote to affirm the balance of th 2e sentence in total.

The reason for the amendment was only to clarify the Judgment imposed by the original sentencing judgment.

Hon. Leif B. Erickson

dissents. Judge Erickson would vote to merge the sentence for the Burglary with the sentence for the Sexual Intercourse without Consent, on the basis that they are the result of one act and it is within the policy of the State to do so.

The Honorable Leif B. Erickson, Acting Chairman, dissenting, the Honorable Robert Boyd, Acting Member, The Honorable Ed. McLean, Judges.


text:
    FROM: THE DISTRICT COURT OF THE EIGHTH JUDICIAL DISTRICT, COUNTY OF CASCADE.
    STATE OF MONTANA, Plaintiff, vs. RICHARD PAUL HALL, Defendant.
    NO. CDC-87-026a
   On November 24,1987, the Defendant was sentenced to Count I, 7forty (40 years for Robbery, ten (10 years for Persistent felony offender and ten (10 years for the use ofa dangerous weapon. All sentences are to run consecutively If paroled, the defendantistopayrestitutioniniheamountof$22,733;daogerousoffenderdesignatian.

QnNovember 16,1989the Defendants applicationfor review ofthat sentence was heard by the Sentence Review Division of the Montana Supreme Court

After careful consideration, it was the unanimous decision ofthe Sentence Review Division thatthe sentence shall be remanded back to Judge Thomas McKittrick ofthe DistrictCourtin Cascade County pursuant to the State v. Camitsch case to make findings withrespecttohis reasons for designatmgthe defendant as adangerous offender.

January 30, 1990, Judge McKittrick filed findings as to his reasons for designatmgthe defendant a dangerous offender.

Upon review of the January 30, 1990 decision by Judge McKittrick, the Sentence Review Board finds that restitution was ordered without any time suspended.

DATED this 23rd day of April, 1990.

Therefore, the case is remanded back to Judge McKittrick for reconsideration. According to Section 46-18-201, MCA, part of the sentence must be suspended or the restitution must be omitted.