author: JUSTICE GRAY JUSTICE TRIEWEILER

text:
    GERARD WILSON, Petitioner and Appellant, v. LIBERTY MUTUAL FIRE INSURANCE, Respondent and Insurer for UNITED PARCEL SERVICE, Employer.
    No. 95-102.
    Submitted on Briefs August 17, 1995.
    Rehearing Denied October 19, 1995.
    Decided September 26, 1995.
    52 St.Rep. 990.
    903 P.2d 785.
    273 Mont. 313.

      JUSTICE TRIEWEILER specially concurring, joined by JUSTICE HUNT.
    For Appellant: Richard J. Pyfer, Attorney at Law; Small, Hatch, Doubek & Pyfer, Helena.
    For Respondent: Larry W. J ones, Attorney at Law; Liberty Northwest Insurance, Missoula.
   JUSTICE GRAY

delivered the Opinion of the Court.

Gerard Wilson (Wilson) appeals from the Findings of Fact, Conclusions of Law and Judgment of the Workers’ Compensation Court denying his claim for permanent partial disability benefits for his 1986 and 1988 work-related injuries. We affirm.

We consider the following issue on appeal:

Is the Workers’ Compensation Court’s finding that Wilson failed to establish that his present back condition was caused by his work-related injuries supported by substantial credible evidence?

Wilson began working for United Parcel Service (UPS) as a porter in 1979. Within two years, he was employed as a full-time package-car driver. Wilson suffered two work-related injuries while employed by UPS, one on April 16, 1986, and one on December 27, 1988. At the time of both of these injuries, UPS’ workers’ compensation insurer was Liberty Mutual Fire Insurance Company (Liberty). Liberty accepted liability for both injuries.

Wilson’s 1986 work-related injury occurred while loading packages onto a UPS truck. As he lifted a box to about eye level, he felt a “major pop” in his upper back. As a result of this injury, Wilson missed work from May 5, 1986, through June 2, 1986.

Various doctors examined Wilson after his 1986 injury. Dr. Michael Strekall, Dr. William Batey and Dr. Kenneth Carpenter each diagnosed Wilson with some form of back strain. On May 30, 1986, Dr. Carpenter released Wilson to return to work full-time as a package-car driver. Wilson did not seek additional medical treatment regarding back complaints until he sustained his 1988 injury.

On December 27, 1988, Wilson injured his back when he slipped and fell on a UPS customer’s driveway after delivering a package. He landed on his back, head and elbows.

The following day, Dr. Batey examined Wilson; he diagnosed a contusion of the lumbar spine and prescribed rest, heat and Motrin for the next two to three days. He observed that Wilson did not appear to be in a significant amount of pain. Wilson followed up with Dr. Batey on January 4, 1989, and informed Dr. Batey that he had returned to work but the pain had persisted. Dr. Batey diagnosed a lumbar strain.

Wilson left his job with UPS in March of 1990. He did not seek additional medical treatment regarding his back complaints until October 26, 1990, when he was examined by Dr. Harris Hanson. Dr. Hanson noted that Wilson felt a pop in his back a few days prior to this visit and diagnosed back strain in the lumbar and dorsal areas. At that time, Wilson was employed by Sweetheart Bakery as a delivery-car driver.

Wilson did not seek further medical attention relating to back problems until May 26,1993. At that time, he saw Dr. Batey and told him that he had been experiencing ongoing back pain since his 1986 and 1988 injuries. Dr. Batey examined Wilson and diagnosed chronic lumbar strain. On June 9,1993, Dr. Batey noted no improvement and referred Wilson to Dr. Allen Weinert.

Dr. Weinert diagnosed degenerative disc disease in the L4-5 and L5-S1 levels and opined that Wilson suffered from chronic discogenic pain. His diagnosis was based primarily on Wilson’s medical history. Dr. Weinert provided a five percent impairment rating with respect to Wilson’s back condition, apportioned as three percent for Wilson’s 1986 injury, one percent for the 1988 injury, and one percent for “his March of 1990 injury.” Liberty paid Wilson a five percent indemnity award based on Dr. Weinert’s impairment rating.

At Liberty’s request, Dr. Robert Chambers examined Wilson on March 9, 1994. He disagreed with Dr. Weinert’s diagnosis of degenerative disc disease and diagnosed Wilson with chronic back pain syndrome. Upon receipt of Dr. Chambers’ report, Liberty denied farther liability for permanent partial disability benefits.

In May of 1994, Wilson petitioned the Workers’ Compensation Court for permanent partial disability benefits. After a hearing on Wilson’s claim, the Workers’ Compensation Court found that Wilson failed to establish that his present back problems were attributable to his 1986 and 1988 work-related injuries. The court concluded, on that basis, that he was not entitled to permanent partial disability benefits. Wilson appeals.

Is the Workers’ Compensation Court’s finding that Wilson failed to establish that his present back condition was caused by his work-related injuries supported by substantial credible evidence?

The law in effect at the time of a work-related injury governs the determination of workers’ compensation benefits. Buckman v. Montana Deaconess Hospital (1986), 224 Mont. 318, 321, 730 P.2d 380, 382. Here, the 1985 version of the Workers’ Compensation Act (the Act) applies to Wilson’s 1986 back injury and the 1987 version of the Act applies to his 1988 injury. Pursuant to both versions of the Act, a claimant must establish that a work-related injury caused his disabling condition. See §§ 39-71-116(12), MCA (1985), and 39-71-116(14), MCA (1987).

After considering the evidence presented at trial, the Workers’ Compensation Court found it more likely that Wilson’s 1986 and 1988 injuries were strains which were wholly resolved within weeks and, therefore, that Wilson had not established a causal connection between those injuries and his present back problems. This finding is pivotal because, absent Wilson establishing the statutorily-required causal connection, he is not entitled to permanent partial disability benefits.

Our standard in reviewing findings of the Workers’ Compensation Court is whether they are supported by substantial credible evidence. Miller v. Frasure (1991), 248 Mont. 132, 137, 809 P.2d 1257, 1260. Substantial evidence is more than a mere scintilla of evidence but may be less than a preponderance of the evidence. Miller, 809 P.2d at 1261. We will not substitute our judgment for that of the trial court when the issue relates to the weight given to certain evidence or the credibility of the witnesses. Burns v. Plum Creek Timber Co. (1994), 268 Mont. 82, 84, 885 P.2d 508, 509 (citation omitted).

Wilson points out that, because the medical evidence in this case was presented through depositions, we are in as good a position as the Workers’ Compensation Court to judge the weight to be given to that evidence. We have stated, however, that our review of medical evidence presented through depositions must be considered in the context of the other evidence presented at trial which was relevant to the medical issue. Caekaert v. State Compensation Mutual Ins. Fund (1994), 268 Mont. 105, 110, 885 P.2d 495, 498; citing McIntyre v. Glen Lake Irrigation District (1991), 249 Mont. 63, 68, 813 P.2d 451, 454. Therefore, although Wilson correctly states our standard in reviewing medical evidence presented through depositions on a stand-alone basis, we will uphold the decision of the Workers’ Compensation Court where substantial credible evidence supports that overall decision. Sciuchetti v. Hurt Construction (1989), 238 Mont. 170, 174, 777 P.2d 308, 311.

Here, the Workers’ Compensation Court weighed conflicting evidence regarding whether Wilson’s present back problems were caused by his 1986 and 1988 work-related injuries and made credibility determinations. Having done so, the court found it more likely that Wilson’s 1986 and 1988 work-related injuries were strains which were wholly resolved within weeks than that the earlier injuries caused Wilson’s current back problems. The court relied, in part, on Dr. Chambers’ testimony.

Dr. Chambers interviewed Wilson and considered his medical history. He also reviewed reports prepared by the doctors who examined Wilson subsequent to his 1986 and 1988 injuries. Dr. Chambers examined Wilson on March 9,1994. During Wilson’s physical examination, Dr. Chambers observed that “no supporting objective findings could be detected that would support or explain [Wilson’s] peripheral complaints on a physical basis.” He opined that the progression of Wilson’s subjective complaints was consistent with the natural history of chronic back pain syndrome and concluded that Wilson did not sustain any permanent impairment as a result of his 1986 and 1988 injuries.

Dr. Chambers subsequently had x-rays of Wilson’s spine forwarded to him for his review. After reviewing and comparing four sets of x-rays taken between January 4, 1989, and September 7, 1993, Dr. Chambers concluded that the x-rays “show no evidence of change that could reflect an ongoing reactive process that could be related to either of [Wilson’s] industrial incidents.”

Additional medical evidence buttresses Dr. Chambers’ opinion. Dr. Batey reviewed x-rays of Wilson’s lumbar spine taken on March 26, 1990, and concluded that they appeared normal. Additionally, Dr. Dan Alzheimer x-rayed Wilson’s lumbar spine at Dr. Weinert’s request and reported that Wilson’s lumbar spine was normal and “demonstrate[d] no evidence of disc space compromise.” Dr. Weinert agreed with this report.

It is true, as Wilson argues, that other portions of Dr. Weinert’s testimony support Wilson’s claim that he has suffered ongoing back pain since his work-related injuries. Our standard, however, is not whether evidence supports findings different from those made by the Workers’ Compensation Court, but whether substantial credible evidence supports the court’s findings. Caekaert, 885 P.2d at 498 (citation omitted).

In any event, the Workers’ Compensation Court determined that Dr. Weinert’s testimony was problematic in several respects. Dr. Weinert repudiated his earlier apportionment of one percent of Wilson’s five percent impairment rating to an unconfirmed March 1990 injury and simply amended the impairment rating to exclude reference to the 1990 injury. In doing so, he reapportioned the five percent impairment rating between the 1986 and 1988 injuries. Furthermore, Dr. Weinert adhered to his medical opinion that Wilson suffers from degenerative disc disease attributable to the 1986 and 1988 work-related injuries notwithstanding his agreement with Dr. Alzheimer’s report that Wilson’s lumbar spine was normal.

Moreover, Dr. Weinert’s diagnosis was based primarily on the medical history provided by Wilson. The Workers’ Compensation Court had an opportunity at trial to observe Wilson’s demeanor and to consider his testimony in light of all of the evidence presented. The court found that Wilson was not a credible witness. It is well-settled that we will not substitute our judgment for that of the Workers’ Compensation Court concerning the credibility of witnesses or the weight to be given their testimony. Shupert v. Anaconda Aluminum Co. (1985), 215 Mont. 182, 187, 696 P.2d 436, 439 (citation omitted).

Wilson asserted that he has suffered ongoing back pain since his 1986 and 1988 injuries. However, other evidence presented at trial directly contradicted Wilson’s testimony. On April 20, 1988, Wilson underwent a United States Department of Transportation (DOT) physical examination in which the examining physician noted that Wilson had pulled muscles in his back but that, regarding this problem, there was “nothing on going.” Wilson underwent another DOT examination on March 26,1990. Dr. Batey noted “no problems” and that Wilson was “doing well.” Approximately six months later, Dr. Batey examined Wilson regarding an eye problem. He noted no changes in Wilson’s health since the March DOT examination and approved Wilson to take a fire-fighter physical examination. On March 23, 1992, Wilson underwent another DOT examination. Wilson passed the examination and there was no indication of any back problems at that time. Additionally, it appears from the record that Wilson did not tell any doctor that he had suffered ongoing back pain since his work-related injuries until May 26, 1993, when he was examined by Dr. Batey.

We conclude that substantial credible evidence supports the Workers’ Compensation Court’s finding that the 1986 and 1988 injuries were strains which were wholly resolved within weeks and, therefore, that Wilson failed to establish that his present back condition was caused by those injuries.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICE NELSON concur.

JUSTICE TRIEWEILER

specially concurring.

I concur with the majority’s conclusion that there was substantial evidence to support the judgment of the Workers’ Compensation Court. Therefore, I would affirm that judgment. However, I do not agree with all that is said in the majority opinion.

JUSTICE HUNT joins in the foregoing specially concurring opinion.


source: Caselaw Access Project

author: JUSTICE HUNT

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. FRANK RICHARD HANSEN, Defendant and Respondent.
    No. 94-584.
    Submitted on Briefs June 15, 1995.
    Decided September 26, 1995.
    52 St.Rep. 993.
    903 P.2d 194.
    273 Mont. 321.

      For Appellant: Hon. Joseph P. Mazurek, Attorney General, Cregg W. Coughlin, Assistant Attorney General, Helena; Carlo Canty, Deputy Silver Bow County Attorney, Butte.
    For Respondent: Deirdre Caughlan, Dunlap & Caughlan, Butte.
   JUSTICE HUNT

delivered the Opinion of the Court.

Respondent Frank Hansen was arrested and charged with third offense domestic abuse. Section 45-5-206(3), MCA, provides that a third offense for domestic abuse may be charged as a felony. Consequently, the State filed an information charging respondent with felony domestic abuse. Respondent moved to dismiss the felony charge, claiming that he had not knowingly waived counsel during his first misdemeanor domestic abuse conviction. He argued that a prior uncounseled misdemeanor conviction cannot be used to convert a misdemeanor charge into a felony. The District Court granted his motion to dismiss the felony charge, and the State appeals. We reverse.

The following issue was raised on appeal:

Did the District Court err in ruling that a valid prior uncounseled misdemeanor conviction may not be used to convert a later charge from a misdemeanor to a felony?

FACTS

On April 20, 1992, respondent was charged with first offense domestic abuse, which is a misdemeanor under § 45-5-206(3), MCA. Unrepresented by counsel, he pled guilty and was ordered to complete a domestic violence treatment program, with a fine and jail term being suspended.

On September 30, 1992, respondent pled guilty to second offense domestic abuse, a misdemeanor, and received a suspended sentence. Respondent was represented by counsel when he pled guilty to this second offense.

On May 10, 1994, respondent was again arrested for domestic abuse. Because this was his third offense, the State filed an information charging him with felony domestic abuse. Respondent moved to dismiss the information, arguing that his April, 1992, uncounseled misdemeanor conviction could not be used to convert a subsequent charge from a misdemeanor to a felony.

The District Court found that the record did not show respondent had made a knowing waiver of counsel before pleading guilty to the April, 1992 charge. The court further found, absent proof of an informed waiver of a right to counsel, the first misdemeanor conviction could not be used as a basis for making the third charge a felony. For these reasons, the District Court dismissed the felony domestic abuse charge. We reverse and hold that a valid prior uncounseled misdemeanor conviction may be used to convert a subsequent charge from a misdemeanor to a felony.

STANDARD OF REVIEW

Whether a prior conviction may be used for sentence enhancement is a question of law, as is the appropriateness of granting (or failing to grant) a purely procedural motion to dismiss in a criminal case. The standard of review of a district court’s conclusions of law is plenary, and we will review to determine whether those conclusions of law are correct. State v. Rushton (1994), 264 Mont. 248, 255, 870 P.2d 1355, 1359. See also State v. Sage (1992), 255 Mont. 227, 229, 841 P.2d 1142, 1143.

ISSUE

May a valid prior uncounseled misdemeanor be used to convert a later charge from a misdemeanor to a felony?

Respondent was charged with third offense domestic abuse pursuant to § 45-5-206(3), MCA, which provides as follows:

A person convicted of domestic abuse for the first or second time shall be fined not to exceed $1,000 or be imprisoned in the county jail not to exceed 1 year, or both. On a third or subsequent conviction for domestic abuse, the person convicted shall be fined not less that $500 and not more than $50,000 and be imprisoned in the county jail or in the state prison for a term not less than 10 days and not more than 5 years, or both.

Respondent moved to quash his felony domestic abuse charge because he had not been represented by counsel at his first misdemeanor conviction. Then and now, he contends that a prior uncounseled misdemeanor cannot be used to enhance a later sentence. In framing this argument, respondent relies almost entirely on the United States Supreme Court case Baldasar v. Illinois (1980), 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169. In Baldasar, the Court held that an uncounseled misdemeanor conviction may not be used under an enhanced penalty statute to convert a subsequent misdemeanor into a felony with a prison term. Baldasar, 446 U.S. at 222, 100 S.Ct. at 1585. If Baldasar remained good law, it would dispose of this case entirely.

Appellant, however, argues that Baldasar has been overturned by Nichols v. United States (1994), __ U.S. __., 114 S.Ct. 1921, 128 L.Ed.2d 745. In Nichols, the Supreme Court held that an uncounseled misdemeanor conviction is also valid when used to enhance punishment at a subsequent conviction. Nichols, 114 S.Ct. at 1928.

Respondent insists Nichols is distinguishable and serves only to modify Baldasar. Nichols dealt with a defendant whose sentence was increased under the Federal Sentencing Guidelines because of a prior misdemeanor. Respondent contends that Nichols therefore is applicable to federal sentencing cases only. Moreover, respondent points out that the defendant in Nichols was already charged with a felony when the question of a potential sentence increase arose. In the case at bar, the prior misdemeanor would serve to convert the latest charge from a misdemeanor to a felony. Respondent advocates a narrow reading of Nichols, while appellant insists it should be read more broadly. In short, the disposition of this case rests on a determination of how Nichols should be construed.

Such a determination is easily made. A cursory reading reveals that Nichols does not modify Baldasar, it expressly overrules it. Nichols, 114 S.Ct. at 1928. While it is true that Nichols did not deal with the conversion of a misdemeanor to a felony, that was precisely the issue in Baldasar. Furthermore, Baldasar is a case appealed from a state court and does not concern federal sentencing procedures. Instead, it addresses the issue of whether a conviction -under state law may be converted from a misdemeanor to a felony, which is the same issue facing this Court in the instant case. If the Supreme Court had not intended the Nichols decision to apply to the facts given in Baldasar, it surely would have carefully said so, and not overruled Baldasar in its entirety.

Moreover, the language in Nichols indicates that the Supreme Court intended the decision to apply to state court cases as well as federal sentencing cases.

Enhancement statutes, whether in the nature of criminal history provisions such as those contained in the [Federal] Sentencing Guidelines, or recidivist statutes which are commonplace in state criminal laws, do not change the penalty imposed for the earlier conviction.

Nichols, 114 S.Ct. at 1927 (emphasis added). Section 45-5-206, MCA, is precisely such a recidivist statute, providing a higher penalty on a third offense for a defendant who continues to violate the law.

We hold that, under the plain language of Nichols, a prior uncounseled misdemeanor may properly be used to convert a subsequent misdemeanor to a felony.

Respondent next argues that, even if a prior uncounseled misdemeanor may generally be used for enhancement purposes, it nevertheless cannot be so used in this case because the State cannot show that respondent knowingly waived his right to counsel.

The Sixth Amendment right to counsel in misdemeanor cases is limited to those cases in which imprisonment was actually imposed. United States v. Quemado (9th Cir. 1994), 26 F.3d 920, 923. Where no sentence of imprisonment was imposed, a defendant charged with a misdemeanor has no constitutional right to counsel. Scott v. Illinois (1979), 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383. Moreover, the imprisonment must be actual; a threat of imprisonment (such as a suspended sentence) is not enough to create a constitutional right to counsel. Scott, 440 U.S. at 373, 99 S.Ct. at 1161.

It was error for the trial court to demand that the State prove respondent knowingly waived a right to counsel in the earlier misdemeanor case. Respondent had no right to counsel in the earlier case because no sentence of imprisonment was imposed; whether he knowingly waived counsel is therefore irrelevant.

Moreover, the fact that the first misdemeanor may ultimately contribute to imprisonment (should respondent be sentenced to a jail or prison term for the later converted felony) does not retroactively give respondent a right to counsel at the earlier misdemeanor. “[A]n uncounseled misdemeanor, valid under Scott because no prison term was imposed, is also valid when used to enhance punishment at a subsequent conviction.” Nichols, 114 S.Ct. at 1928.

Because we hold that a valid prior misdemeanor conviction may properly be used to convert a later charge from a misdemeanor to a felony, the decision of the District Court is reversed and this case is remanded for further proceedings consistent with this opinion.

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


text:
    DON FALCON and BERTA FALCON, husband and wife, d/b/a THE EL LEO PARTNERSHIP, Plaintiff and Respondent, v. ALLEN E. FAULKNER, d/b/a, FAULKNER QUARTER HORSES and RON THOMAS as agent/employee of FAULKNER QUARTER HORSES, Defendant and Appellant.
    No. 95-083.
    Submitted on Briefs July 28, 1995.
    Decided September 29, 1995.
    52 St.Rep. 1011.
    903 P.2d 197.
    273 Mont. 327.

      For Appellant: Jeffrey M. Murray, Murray Law Firm, Kalispell.
    For Respondent: Mark Stermitz, Kent P. Saxby, Warden, Christiansen, Johnson & Berg, Kalispell.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Ron Thomas appeals the decision of the Eleventh Judicial District Court, Flathead County, denying his motion to set aside a default judgment. We affirm.

The following issues are raised on appeal:

1. Did the District Court err in failing to find that respondent Falcon had committed fraud upon the court?

2. Did the District Court err in failing to find sufficient “other reasons” existed to warrant setting aside the default judgment?

FACTS

Respondent Don Falcon, a Montana resident, is a quarter horse breeder and the owner of a show mare named “First El Leo.” Appellant Allen Faulkner, an Oklahoma resident, is also a quarter horse breeder and the owner of a show stallion named “Impressive.” In the mid-1980’s, Appellant Ron Thomas, an Illinois resident, bought from Faulkner a number of “breeding contracts,” each of which gave the owner of the contract the right to breed a mare to Impressive.

In the early spring of 1986, Thomas assigned a breeding contract to Falcon for $5,000. The parties dispute whether the contract guaranteed the live birth of a foal, but agree the contract provided the owner would have the right to breed his mare to Impressive again the following year should a live foal not result from the first breeding. The parties also dispute how payment on the contract was arranged. Falcon alleged he and Thomas had agreed Thomas would receive $2,500 up front and the balance once First El Leo was pregnant. Thomas alleged he made it clear he expected to be paid the entire amount in advance.

First El Leo was bred to Impressive in 1986, but no pregnancy resulted. In 1987, Falcon transported First El Leo back to Oklahoma to attempt to breed her to Impressive again. On Thomas’ orders, Faulkner refused to allow the breeding because Falcon had not paid the breeding contract in full. Falcon refused to pay and no second breeding took place. Falcon took First El Leo back to Montana and successfully bred her to another stallion later that year.

In late 1987, Thomas filed suit against Falcon in Illinois for breach of contract. This suit was subsequently dismissed by the Illinois court for lack of personal jurisdiction over Falcon. In January 1988, Falcon filed suit in Montana against Faulkner and Thomas for breach of contract, and Thomas was duly served with process on the lawsuit. On the advice of his attorney, who believed Montana lacked personal jurisdiction over him, Thomas failed to answer the complaint or to appear in the suit.

Because Thomas failed to appear, his default was entered in February 1988. In January 1989, Falcon requested and received a default judgment against Thomas in the amount of $131,010.80. In 1990, Falcon petitioned an Illinois court for registration of the default judgment. Thomas opposed the petition, arguing the Montana court lacked personal jurisdiction over him and the judgment was therefore void. The Illinois court found Thomas had the requisite minimum contacts in Montana to establish personal jurisdiction, and the default judgment was duly registered in Illinois. This decision was affirmed by the Illinois appellate court.

Falcon also filed a separate action in Illinois alleging Thomas had fraudulently conveyed certain real property to his sons for the purpose of avoiding payment of the Montana judgment. The Illinois court found the property had indeed been fraudulently conveyed, and the property transfers were set aside. Thomas again appealed, and the Illinois appellate court affirmed the judgment in February 1994.

In May 1994, Thomas moved the Montana court to set aside the default judgment. Thomas alleged that Falcon had committed fraud upon the court and that other sound reasons existed to set the default aside. The District Court refused to set aside the default judgment, and Thomas appeals.

Rule 60(b), M.R.Civ.P., provides that a default judgment may be set aside for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
(6) any other reason justifying relief from the operation of the judgment.

Rule 60(b), M.R.Civ.R However, Rule 60(b) also provides that a motion made under subsections (1), (2), or (3) must be made within 60 days after the entry of judgment. Thomas’ motion to set aside the default judgment was made over five years after the default judgment was entered against him. Any claim arising under subsections (1), (2), or (3) is therefore time-barred. Since Thomas does not allege the judgment is void or has been satisfied, his motion arises from subsection (6) — other reasons exist which justify setting the judgment aside. In addition, the residual clause of Rule 60(b) allows a judgment to be set aside at any time if a party has perpetrated a fraud upon the court, which Thomas alleges Falcon has done.

STANDARD OF REVIEW

This Court will carefully scrutinize a district court’s refusal to set aside a default. Because of the sound policy favoring trial on the merits, “no great abuse of discretion need be shown to warrant reversal.” Lords v. Newman (1984), 212 Mont. 359, 364, 688 P.2d 290, 293 (citations omitted). If this Court finds even a slight abuse of discretion, the district court will be reversed and the default will be set aside. Lords, 688 P.2d at 293. See also In re Marriage of McDonald (1993), 261 Mont. 466, 469, 863 P.2d 401, 402; Blume v. Metropolitan Life Ins. Co. (1990), 242 Mont. 465, 467, 791 P.2d 784, 785. However, “the burden of proof rests on the party seeking to set aside the default judgment.” Empire Lath & Plaster, Inc. v. American Casualty Co. of Reading, Pennsylvania (1993), 256 Mont. 413, 416, 847 P.2d 276, 278.

Issue 1

Did the District Court err in failing to find that respondent Falcon had committed fraud upon the court?

Thomas alleges Falcon intentionally misrepresented material facts to the court. Specifically, Thomas contends Falcon misrepresented that:

1) his mare failed to have a foal subsequent to the 1987 breeding season;

2) he fully performed all obligations under the contract; and

3) the value of the lost foal was $100,000.

Thomas contends that these alleged misrepresentations amount to a fraud upon the court, and that the default decree should therefore be set aside under the residual clause of Rule 60, M.R.Civ.P.

“The residual clause of Rule 60 by its terms sets forth three separate avenues to obtain relief from judgment.” Salway v. Arkava (1985), 215 Mont. 135, 140, 695 P.2d 1302, 1305. These avenues are extrinsic fraud, lack of personal notification, and fraud upon the court. Brown v. Small (1992), 251 Mont. 414, 420, 825 P.2d 1209, 1213, citing Salway, supra. In this case, Thomas alleges Falcon committed fraud upon the court.

Fraud upon the comb should, we believe, embrace only that species of fraud which does or attempts to subvert the integrity of the court itself, or is fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner in its impartial task of adjudicating cases that are presented for adjudication. Relief should be denied in the absence of such conduct.

Salway, 695 P.2d at 1306 (citations omitted). See also Wise v. Nirider (1993), 261 Mont. 310, 862 P.2d 1128. “Examples of fraud upon the court include bribery, evidence fabrication, and improper attempts to influence the court by counsel.” Brown, 825 P.2d at 1213. Only “the most egregious conduct” will rise to the level of fraud upon the court. Wise, 862 P.2d at 1132. “[I]t must be such fraud as denied the adversary an opportunity to have a trial or to fully present his side of the case” in order to “constitute grounds for reopening the decree.” Lance v. Lance (1981), 195 Mont. 176, 179-80, 635 P.2d 571, 574. Intrinsic fraud that is representations or concealments made during the court proceedings, assuming they are false or fraudulent, are nevertheless not grounds for reopening a decree or judgment. Lance, 635 P.2d at 574 (citations omitted).

Thomas alleges Falcon misrepresented certain facts to the court, and those misrepresentations constituted fraud upon the court. But what Thomas terms “misrepresentations” were allegations that would properly have been disputed at trial.

The question of whether First El Leo had a foal in the 1987 season has been settled. Falcon admitted she did (by another stallion), and claimed the allegation she had not was an error brought to the trial court’s attention. In any case, the award of damages does not include any amount for a foal lost in 1987.

Whether Falcon fully performed his obligations under the contract is relevant to the issue of breach of contract. Falcon claimed he did; Thomas now claims he did not. The worth of the foal that would have been bom if a successful breeding had taken place is relevant to the issue of damages. Falcon claimed it could have been worth in excess of $100,000; Thomas now claims it would have been worth much less.

In raising these issues, Thomas attempts to argue the merits of the case itself. However, the proper place and time to argue the merits of a case is at trial. Had Thomas appeared in the case and a trial been held, he would have been afforded an opportunity to rebut Falcon’s testimony and offer his own evidence regarding the contract and damages. If Thomas had somehow been denied his right to appear at trial and contest the merits of the case, the denial of that right might constitute fraud upon the court. Salway, 695 P.2d at 1306. But, Thomas was not prevented from appearing; he chose not to appear.

The record does not indicate, nor does Thomas allege, that Falcon or his counsel engaged in the sort of egregious conduct that would justify a finding of fraud upon the court. It was not an abuse of discretion for the District Court to refuse to grant Thomas’ motion on these grounds.

Issue 2

Did the District Court err in failing to find sufficient “other reasons” existed to justify setting aside the default judgment?

Rule 60(b)(6), M.R.Civ.P., provides that “[o]n motion and upon such terms as are just, the court may relieve a party ... from a final judgment, order, or proceeding for... any other reason justifying relief from the operation of the judgment.” Thomas alleges several “other reasons” why the default judgment should be set aside.

Relief is warranted under subsection (6) of Rule 60(b), M.R.Civ.P., “in extraordinary situations when circumstances go beyond those covered by the first five subsections or when a party in whose favor judgment was entered has acted improperly.” In re Marriage of Castor (1991), 249 Mont. 495, 500, 817 P.2d 665, 668. “Other reasons” sufficient to set aside a default judgment include lack of subject matter jurisdiction (In re Marriage of Oltersdorf (1992), 256 Mont. 96, 844 P.2d 778), unavoidable absence or unavailability of counsel (Ring v. Hoselton (1982), 197 Mont. 414, 643 P.2d 1165), or potential judicial bias (Shulty v. Hooks (1994), 263 Mont. 234, 867 P.2d 1110).

Thomas first alleges fraud between the parties on the same grounds by which he alleges fraud upon the court. However, false representations made by a party constitute intrinsic fraud and are not reason enough to set aside a default judgment. Lance, 635 P.2d at 574. The intrinsic fraud Thomas alleges is addressed by subsection (3) of Rule 60(b). A party is given 60 days in which to file a motion under subsection (3); Thomas is therefore time-barred from raising this issue.

Thomas next alleges the settlement offer made to him indicates Falcon’s damages were inflated. However, settlement offers are not admissible to prove liability for or invalidity of a claim or its amount. Rule 408, M.R.Evid. Furthermore, as stated above, the question of damages is properly decided at trial. Since Thomas did not appear in this action, the District Court awarded damages based on the evidence Falcon presented. A party’s desire to retroactively argue a factual issue in the case is not a reason justifying the setting aside of a default.

Thomas also argues the judgment should be set aside because he received no notice of Falcon’s intent to enter the default. Rule 55(b), M.R.Civ.P., requires a party who has appeared in an action to be given at least three day’s notice of intent to enter a default. However, despite being duly served as a party to the case, Thomas never appeared in the action. Since he never entered an appearance, he was not entitled to specific notice of intent to enter a default. Therefore, Falcon’s failure to notify him is not a reason to set aside the default judgment. Lance, 635 P.2d at 575.

Thomas last argues that the negligence of his attorney should be reason enough to set aside the default judgment. Thomas’ failure to appear in the Montana action was due to the advice of his Illinois attorney, who incorrectly believed Montana did not have personal jurisdiction over Thomas.

Generally, mistake or neglect fall within subsection (1) of Rule 60(b) and therefore must be alleged within 60 days of the entry of judgment. Further, “[t]he general rule followed in Montana and many other jurisdictions is that the neglect of an attorney is attributable to the client. The attorney’s neglect is imputed to the client and is insufficient to set aside a default.” Lords, 688 P.2d at 295, citing First State Bank v. Larsen (1925), 72 Mont. 400, 233 P. 960. We have found in the past, however, that gross neglect of a diligent client’s case may be enough to warrant setting a default judgment aside under subsection (6). Ring, 643 P.2d at 1172.

The advice of Thomas’ Illinois attorney, which hindsight reveals was very bad indeed, nevertheless does not rise to the level of gross neglect. He believed Thomas was not subject to Montana jurisdiction, but he was wrong. He did not, however, abandon Thomas mid-way through an action, or misrepresent to Thomas the steps he was taking on Thomas’ behalf.

Thomas points out, however, that this attorney did not carry malpractice insurance and is now bankrupt, making him essentially judgment-proof. These circumstances, while unfortunate, are not relevant to the question of whether the default should be set aside. The actions of Thomas’ Illinois attorney did not constitute gross neglect. As such, they are not reason enough to set aside the default judgment.

Finally, we note that Thomas waited over five years before moving the court to set aside the judgment, during the first two of which he was actively challenging the validity of the judgment in the Illinois courts. Even after the Illinois appellate court ruled the judgment was valid in 1991, Thomas waited over three years before moving the court to set aside the judgment. Thomas offers no reason for this inexcusable delay.

Since Thomas failed to show fraud upon the court or a valid “other reason” to set aside the default judgment against him, the District Court did not abuse its discretion in denying his motion.

Affirmed.

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


author: CHIEF JUSTICE TURNAGE JUSTICE HUNT

text:
    FRANK TALLEY, Plaintiff and Appellant, v. FLATHEAD VALLEY COMMUNITY COLLEGE, a Community College organized by the voters of Flathead County, Montana, on April 7, 1967, according to the Community College Law of the 1965 Montana Legislative Assembly; HOWARD L. FRYETT, Individually and as President of Flathead Valley Community College; DENNIS P. ADAMS, Individually and as Dean of Educational Services of Flathead Valley Community College; LOWELL JAEGER, Individually and as the Chairman of the Division of Humanities of Flathead Valley Community College; and DOES 1 through 5, inclusive, Defendants and Respondents.
    No. 95-240.
    Submitted on Briefs August 31, 1995.
    Rehearing Denied October 26, 1995.
    Decided September 29, 1995.
    52 St.Rep. 1016.
    903 P.2d 789.
    273 Mont. 336.

      For Appellant: E. Eugene Atherton, E. Eugene Atherton, P.C., Kalispell.

      For Respondents: Todd A. Hammer, Warden, Christiansen, Johnson & Berg, Kalispell.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Frank Talley appeals from a summary judgment entered by the Eleventh Judicial District Court, Flathead County, on his free speech claim. We affirm.

The issue is whether the District Court erred in granting defendants’ motion for summary judgment on the free speech claim and denying Talley’s motion for summary judgment on the same claim.

From 1982 until 1989, Talley was employed under a series of term contracts as a part-time philosophy and religious studies instructor at Flathead Valley Community College (FVCC). During the winter of 1989, FVCC cancelled Talley’s religious studies class, but later reinstated it. Talley’s classes for spring quarter 1989 were cancelled. From that time forward, FVCC did not rehire Talley.

Upon learning that his classes for spring 1989 had been cancelled, Talley asserted his belief that he had a right to continued employment. He communicated this belief to FVCC’s president personally, to FVCC through letters from his attorney, and to the FVCC Board of Trustees personally. Talley’s attorney wrote: “[I]f [Talley] is employed, it will tend to look as though the college has followed through with its intent to continuously employ my client.”

FVCC responded by letter through its attorney that any claim by Talley of a continuing right of employment was not supported under the language of his employment contracts. FVCC’s attorney asked Talley to disavow his expectation of continued employment. “In absence of such a disavowal and acknowledgement, I must advise [FVCC] ... not to employ Mr. Talley for the summer quarter and to employ him very sparingly thereafter.” FVCC’s counsel cautioned that Talley’s expectation might otherwise ripen into a reasonable expectation of continued employment.

In October 1989, Talley filed a complaint listing multiple claims for relief relating to FVCC’s failure to rehire him. The District Court granted summary judgment to defendants on most of Talley’s claims. The court certified its judgment for interlocutory appeal pursuant to Rule 54(b), M.R.Civ.P. This Court affirmed. Talley v. Flathead Valley Community College (1993), 259 Mont. 479, 857 P.2d 701. Talley’s case then resumed in District Court on his remaining claims, violation of his right to free speech and slander.

Both Talley and the defendants moved for summary judgment on the free speech claim. Talley maintained that FVCC conditioned his continued employment at FVCC upon his abandonment of his position that he had a right to continued employment, and, in so doing, violated his right to free speech. The District Court ruled as a matter of law that Talley’s speech was not constitutionally protected in this instance because it did not address a public interest or concern but rather involved private, employment-related issues. The court therefore granted defendants’ motion for summary judgment.

The case then went to trial on the remaining claim of slander by defendant Lowell Jaeger. The jury returned a verdict for Jaeger. Talley now appeals the summary judgment on his free speech claim.

Did the District Court err in granting defendants’ motion for summary judgment on the free speech claim and denying Talley’s motion for summary judgment on the same claim?

This Court’s standard of review of a summary judgment is the same as the standard initially used by the district court and set forth at Rule 56(c), M.R.Civ.P. This Court must determine whether there is a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law, based upon the facts set forth in the pleadings and any depositions, answers to interrogatories and requests for admissions, and affidavits filed. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214.

In this case, Talley’s cross-motion for summary judgment demonstrates that there are no issues of material fact. The question is whether, based upon the record, FVCC was entitled to judgment as a matter of law.

The First Amendment protects speech of public employees upon matters of public concern. This furthers the purpose of the First Amendment “to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” Connick v. Myers (1983), 461 U.S. 138, 145, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708, 718 (citation omitted).

However, except in “the most unusual circumstances,” the First Amendment does not provide immunity for speech concerning matters only of personal interest to the public employee. Connick, 461 U.S. at 147, 103 S.Ct. at 1690. This assures government employees the same rights as those who do not work for the government. Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record. Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690-91. The inquiry into the protected status of speech is one of law, not fact. Connick, 461 U.S. at 148, n. 7, 103 S.Ct. at 1690, n. 7.

Although “most unusual circumstances” were not defined in Con-nick, Talley argues that such circumstances are present here. He asserts that the elimination of his classes at FVCC was a matter of public concern; that he spoke out publicly as well as privately about it; and that after his last contract with FVCC expired, he was an ordinary public citizen and his comments about FVCC were no longer subject to the threshold inquiry from Connick.

Talley submitted to the court copies of letters between FVCC’s attorney and his attorney, and defendant Howard Fryett’s responses to interrogatories and requests for admissions. He submitted his own affidavit, in which he recounted his “quest for due process.” He also submitted a copy of an April 1989 article from the local newspaper, describing an FVCC board meeting. The headlined result of the meeting was an increase in tuition fees. The article included a paragraph stating that Talley had appeared before the board to protest the elimination of his classes and to threaten a lawsuit.

Talley cites as comparable to this case Trotman v. Board of Trustees of Lincoln University (3rd Cir. 1980), 635 F.2d 216, in which James Trotman successfully sued Lincoln University for failing to renew his teaching contract. Trotman was decided prior to Connick, and the Connick distinction between matters of public concern and matters of private concern was not addressed therein. The Trotman opinion does, however, allude to the widespread nature of the dispute between teachers and the administration of Lincoln University. Trotman, 635 F.2d at 219.

The Fifth Circuit Court of Appeals has ruled that grievances or complaints about the subject of class scheduling are not a matter of public concern, but are instead personal or private employment-related grievances not within constitutionally-protected “free speech” claims under the First Amendment. See Dorsett v. Bd. of Tr. for St. Colleges & Univ. (5th Cir. 1991), 940 F.2d 121. In Dorsett, a tenured associate math professor brought a 42 U.S.C. § 1983 civil rights claim against university officials for alleged harassment and violation of First Amendment rights. The professor alleged that he had been denied summer employment by the administration in retaliation for publicly supporting another professor who refused to lower academic standards. He alleged that his exercise of free speech on matters of public education caused the retaliation. The court disagreed.

Communication ... rises to the level of public concern if a person speaks primarily as a citizen rather than as an employee. We must assess, therefore, Dorsett’s motivation in complaining to the administration. After reviewing the summary judgment evidence, we conclude that Dorsett’s complaints at the time of the alleged harassment reflected predominantly his concerns about the assignment of summer and overload classes to himself and to his friends in the department. These concerns are matters of private, not public, interest.

Dorsett, 940 F.2d at 124 (citations omitted).

In the present case, the record does not establish that FVCC’s failure to rehire Talley was a matter of public debate or interest in the community at large. The record, however, does establish that Talley’s primary motivation for his statements was his desire for more teaching contracts for himself. We conclude that Trotman is not persuasive authority for Talley’s position in this case. We further conclude that Talley has not demonstrated “most unusual circumstances” justifying an exception from the general rule set forth in Connick and applied in Dorsett.

Talley also makes an argument concerning interference with his freedom of thought. However, it was Talley’s statements, not his thoughts, which FVCC asked him to disavow.

Finally, Talley points out that the District Court did not grant summary judgment on the free speech claim prior to the first appeal, and that in its opinion on that appeal, this Court wrote:

We conclude that the only constitutional claim which has merit under the pleadings is the claim of denial of free speech according to the First Amendment to the United States Constitution and the attendant § 1983 claim.

Talley, 857 P.2d at 708. He argues that this represented a ruling that his free speech claim must be allowed to proceed to trial.

The District Court’s failure to grant summary judgment on the free speech claim was not an issue before this Court in the first appeal. In that opinion, we further stated: “No summary judgment being issued, [the free speech] claim is still alive.” Talley, 857 P.2d at 708. The language cited by Talley was not a ruling on the merits of the free speech claim; it was merely dicta.

In the current appeal, in contrast, the propriety of summary judgment on the free speech claim is the issue before this Court. We have now reviewed the summary judgment, and we hold that entry of summary judgment for defendants on the free speech claim was correct.

Affirmed.

JUSTICES NELSON, GRAY and LEAPHART concur.

JUSTICE HUNT

respectfully dissents:

I do not agree with the conclusion of the majority that the language of our opinion in Talley, 857 P.2d at 708, is dicta, when this court wrote:

We conclude that the only constitutional claim which has merit under the pleadings is the claim of denial of free speech according to the First Amendment to the United States Constitution and the attendant 1983 claim.

Talley, 857 P.2d at 708. Our conclusion was a ruling on the merits of the free speech claim. I would reverse the summary judgment by the District Corut and allow the matter to go to trial.


author: JUSTICE NELSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RONALD DeSALVO, a/k/a RONALD SALVATI, Defendant and Appellant.
    No. 95-049.
    Submitted on Briefs July 27, 1995.
    Decided September 29, 1995.
    52 St.Rep. 1019.
    903 P.2d 202.
    273 Mont. 343.

      For Appellant: David L. Irving, Glasgow.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena; Kenneth Oster, Valley County Attorney, Glasgow.
   JUSTICE NELSON

delivered the Opinion of the Corut.

Following a pre-sentence investigation, the Seventeenth Judicial District Court, Valley County, sentenced Appellant Ronald DeSalvo, a/k/a Ronald Salvati (DeSalvo) to 15 years in the Montana State Prison as a persistent felony offender. The District Court denied DeSalvo’s motion for reconsideration. DeSalvo appeals the District Court’s denial of his motion for reconsideration and its judgment entered November 14, 1994. We affirm.

ISSUES

DeSalvo presents the following issues on appeal:

Did the District Court abuse its discretion by:

1) not considering evidence of mitigation at the sentencing hearing;

2) finding that based on the evidence, DeSalvo’s mental capacity was not significantly impaired;

3) relying on substantially incorrect information at the sentencing hearing;

4) denying DeSalvo the right to confront a witness at the sentencing hearing by relying on a 20-year old psychiatric report prepared by a person not at the hearing; and

5) imposing a sentence which represents cruel and unusual punishment?

BACKGROUND

DeSalvo broke into a drugstore in Glasgow, Montana, and stole prescription drugs. The County Attorney for Valley County charged DeSalvo with burglary, theft, and criminal possession of dangerous drugs, all felonies. Upon motion by the State to dismiss the charges of burglary and theft, the District Court ordered the dismissals. Initially, DeSalvo pleaded guilty to criminal possession of dangerous drugs, but the District Court did not accept the plea because DeSalvo was not willing to admit to all elements of the offense. On May 2, 1994, the District Court accepted DeSalvo’s guilty plea.

The State filed a notice of intent to seek sentencing for DeSalvo as a persistent felony offender. DeSalvo requested the District Court to appoint a professional to conduct a psychological evaluation and to help evaluate his psychiatric record from the Warm Springs State Hospital. The District Court appointed Dr. Kay Dorr. DeSalvo then applied for a hearing on exceptions to mandatory minimum sentences. The District Court granted the hearing and heard the evidence on exceptions, finding that DeSalvo had no significant impairment and therefore his application for an exception to the mandatory minimum sentence did not apply. At the sentencing hearing, the District Court found DeSalvo to be a persistent felony offender and sentenced Mm to 15 years in the Montana State Prison. DeSalvo moved for reconsideration, and the District Court subsequently denied the motion. DeSalvo appeals from the District Court’s order denying his motion for reconsideration and from the judgment filed November 14, 1994.

DISCUSSION

DeSalvo claims that the District Court abused its discretion by sentencing Mm to 15 years M prison as a persistent felony offender. Specifically, he argues that the District Court committed five errors that amount to an abuse of discretion. Each of these will subsequently be addressed m turn.

At the outset, however, it is important to reemphasize that we consistently grant trial judges broad discretion to determine appropriate punishment and will not review a sentence on appeal for mere inequity or disparity. State v. Hembd (1992), 254 Mont. 407, 411, 838 P.2d 412, 415; State v. Dahms (1992), 252 Mont. 1, 13, 825 P.2d 1214, 1221. Accordmgly, we review a district court’s sentencing decision for legality only and will not disturb the decision unless the district court abused its discretion. State v. Blanchard (1995), 270 Mont. 11, 889 P.2d 1180, 1182 (citing State v. Hurlbert (1988), 232 Mont. 115, 123, 756 P.2d 1110, 1115).

The District Court sentenced DeSalvo for criminal possession of dangerous drugs, pursuant to § 45-9-102(5), MCA, the maximum sentence for wMch is not more than five years incarceration. However, because the District Court found DeSalvo to be a persistent felony offender, it applied § 46-18-502, MCA. Section 46-18-502, MCA, states that “a persistent felony offender shall be imprisoned m the state prison for a term of not less than 5 years or more than 100 years ....” In accordance with our decision in State v. Fitzpatrick (1991), 247 Mont. 205, 805 P.2d 584, the District Court used § 46-18-502, MCA, in place of the maximum sentence and not as an additional sentence.

DeSalvo claims that the mandatory minimum sentence of five years does not apply to him because he falls within the exceptions found in § 46-18-222, MCA. Section 46-18-222(2), MCA, provides in part:

All mandatory minimum sentences ... do not apply if: ... (2) the defendant’s mental capacity, at the time of the commission of the offense for which the defendant is to be sentenced, was sigmficantly impaired, although not so impaired as to constitute a defense to the prosecution. However, a voluntarily induced intoxicated or drugged condition may not be considered an impairment for the purposes of this subsection.

Specifically, DeSalvo claims that his mental capacity at the time of the commission of his offense was significantly impaired. Dr. Kay Dorr, the court appointed professional, testified that DeSalvo had dementia, a contemporary term for organic brain syndrome, and that by definition, dementia amounted to significant impairment. However, a psychological report conducted by Dr. James Dick at the Warm Springs State Hospital stated that DeSalvo’s testing was not indicative of organic impairment. Additionally, the psychiatric evaluation by Dr. Alexander, the clinical director at Warm Springs State hospital, also noted that there were no indications of organic impairment.

1. Did the District Court abuse its discretion by not considering evidence of mitigation at the sentencing hearing?

In support of his claim of abuse of discretion, DeSalvo first argues that the District Court failed to consider the evidence he offered supporting mitigation of his sentence. Section 46-18-115, MCA, requires the sentencing court to afford the parties an opportunity to be heard on any matter relevant to disposition, including the applicability of mandatory minimum sentences and to ascertain if the defendant wishes to present any information in mitigation of punishment. DeSalvo presented evidence of mitigation of punishment arguing that the exceptions to the mandatory minimum sentence for persistent felony offenders should have applied.

The State agreed that the sentencing court must consider evidence of mitigation of punishment. In fact, the State argued that the District Court did fully consider the evidence and expressly acknowledged Dr. Kay Dorr’s testimony regarding dementia. DeSalvo concedes that the District Court granted an extension of sentencing, appointed Dr. Kay Dorr to examine him and to assist in evaluating his mental health reports, and heard testimony regarding Dr. Kay Dorr’s and the Warm Springs State Hospital’s evaluations of him. DeSalvo simply does not agree with the District Court’s finding that the evidence did not support the exception to the mandatory minimum sentence.

As demonstrated by both the State and DeSalvo, the District Court fully considered DeSalvo’s evidence of mitigation of punishment. DeSalvo presented no evidence that the District Court abused its discretion. Accordingly, we hold that the District Court complied with its statutory duty to consider evidence of mitigation of punishment.

2. Did the District Court abuse its discretion by finding that based on the evidence, DeSalvo’s mental capacity was not significantly impaired?

Second, DeSalvo claims that the District Court’s finding that his mental state was not significantly impaired was contrary to the evidence presented at the sentencing hearing. The State argues, however, that the District Court, like any trier of fact, is free to accept or reject any expert opinion evidence in light of all of the evidence presented to the trier of fact. In addition, the State claims that the exceptions pursuant to § 46-18-222, MCA, apply only when the sentencing court intends to sentence the defendant to less than the mandatory minimum sentence.

In State v. Arlington (1994), 265 Mont. 127, 875 P.2d 307, the defendant argued that two of the exceptions to the mandatory minimum sentence applied. The district court conducted a hearing to determine if the exceptions applied and concluded that defendant’s mental capacity was not substantially impaired. Arlington, 875 P.2d at 331. On review, we stated that “ ‘[bjecause the judge was not disposed to give the minimum sentence, there is no chance that he would have given less than the minimum sentence.’ Therefore, we hold that the sentencing court correctly found § 46-18-222, MCA, inapplicable.” Arlington, 875 P.2d at 331 (quoting State v. Stroud (1984), 210 Mont. 58, 78, 683 P.2d 459, 469).

In the instant case, the District Court stated that it did not intend to sentence DeSalvo to less than the mandatory minimum sentence. In its order denying reconsideration, the District Court stated that it was not disposed to consider the minimum sentence for a persistent felony offender and therefore the exceptions did not apply. DeSalvo himself recommended a sentence longer than the mandatory minimum sentence. Given the evidence presented, we hold that there was substantial evidence to support the District Court’s decision that DeSalvo’s mental state was not significantly impaired and, therefore, the District Court did not abuse its discretion.

3. Did the District Court abuse its discretion by relying on substantially incorrect information at the sentencing hearing?

Third, DeSalvo argues that the District Court relied on erroneous information in the sentencing hearing. DeSalvo claims that the 20-year old psychiatric report prepared by Dr. James Dick conflicted with other reports from the Warm Springs State Hospital and with Dr. Kay Dorr’s testimony and evaluation. The State contends that the District Court’s ruling on DeSalvo’s mental impairment is immaterial because the exceptions to § 46-18-222, MCA, did not apply. The State further argues that DeSalvo failed to show that the District Court relied on incorrect facts to reach its conclusion.

In State v. Petroff (1988), 232 Mont. 20, 757 P.2d 759, the defendant contended that the district court relied on incorrect information in sentencing him. Petroff, 757 P.2d at 761. We stated that although a criminal defendant has a right to a sentence based on substantially correct information, we will not strain to find a mistake. “Rather, the District Court is presumed to be correct." Petroff, 757 P.2d at 761 (citing State v. Lane (1977), 175 Mont. 225, 231, 573 P.2d 198, 202); see also State v. McPherson (1989), 236 Mont. 484, 490, 771 P.2d 120, 124.

In the instant case we find no indication that the District Court relied on incorrect information. The District Court based its conclusion that DeSalvo was deceptive on an assessment of all the evidence including the testimony of the probation officer and Dr. Kay Dorr. Furthermore, as pointed out above, DeSalvo’s alleged significant mental impairment is immaterial because the District Court did not consider the mandatory minimum sentence for DeSalvo. Therefore, we hold that the District Court did not abuse its discretion in relying on the Warm Springs State Hospital reports as well as the testimony of Dr. Kay Dorr to determine that DeSalvo’s mental capacity was not significantly impaired.

4. Did the District Court abuse its discretion by denying DeSalvo the right to confront a witness at the sentencing hearing by relying on a 20-year old psychiatric report prepared by a person not at the hearing?

Fourth, DeSalvo argues that by relying on Dr. James Dick’s 20-year old report, the District Court denied his Sixth Amendment right to confront the witnesses against him. Specifically, DeSalvo argues that because Dr. James Dick was not present at the sentencing hearing, DeSalvo could not cross-examine him. The State contends that a sentencing judge may use information from sources other than the testimony of witnesses in open court, and thus, at a sentencing hearing, a court may receive any probative evidence. We agree.

In State v. Higley (1980), 190 Mont. 412, 621 P.2d 1043, we held that the rules of evidence do not apply to the sentencing hearing. Higley, 621 P.2d at 1054-55 (citing Williams v. New York (1949), 337 U.S. 241, 250-51, 69 S.Ct. 1079, 1085, 93 L.Ed. 1337, 1344 (holding that a denial of confrontation and cross-examination of witnesses in a sentencing hearing did not violate due process rights)); see also State v. D.B.S. (1985), 216 Mont. 234, 248, 700 P.2d 630, 639. In Higley, the sentencing judge told the defendant the facts he was relying on and gave the defendant the opportunity to refute the information and therefore adequately protected the defendant’s rights. Higley, 621 P.2d at 1055.

In the instant case, the District Court did not violate DeSalvo’s right to confrontation at the sentencing hearing because the sentencing judge provided DeSalvo the opportunity to know what information would be presented and the opportunity to rebut that information. DeSalvo knew that the Warm Springs State Hospital reports would be considered and he had the opportunity to rebut the information contained in the reports. Accordingly, we hold that the District Court properly considered the Warm Springs State Hospital’s reports at the sentencing hearing.

5. Did the District Court abuse its discretion by imposing a sentence which represents cruel and unusual punishment?

Fifth, DeSalvo argues that his 15-year sentence constitutes cruel and unusual punishment because it was excessive and based on punishment rather than rehabilitation. The State contends that a sentence is not cruel or unusual punishment if it falls within the maximum statutory guidelines. Moreover, review of sentences which do not exceed the statutory maximum properly lies with the Sentence Review Division. DeSalvo agrees, but counters that his punishment is greatly disproportionate to his crime and that it shocks the conscience and outrages the moral sense of the community.

We have held that “[t]he general rule regarding sentencing is that a sentence within the maximum statutory guidelines does not violate the Eighth Amendment prohibition against cruel and unusual punishment.” Dahms, 825 P.2d at 1221. Moreover, the proper channel for a challenge to the equity of a sentence as opposed to its legality is through the Sentence Review Division. Dahms, 825 P.2d at 1221. We have consistently held that “we will not review a sentence on appeal for mere inequity or disparity.” Dahms, 825 P.2d at 1221 (citing State v. Almanza (1987), 229 Mont. 383, 386, 746 P.2d 1089, 1090-91).

In the instant case, the District Court sentenced DeSalvo within the maximum statutory guidelines. For that reason, the District Court did not impose cruel and unusual punishment on DeSalvo. We hold that further review of the sentence for any alleged inequity properly lies with the Sentence Review Division.

AFFIRMED.

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


author: JUSTICE LEAPHART

text:
    IN THE MATTER OF THE PATERNITY OF “ADAM,” A Minor Child. “BOB,” Petitioner and Appellant, and “MARY” and “JOHN,” Defendants and Respondents.
    No. 95-019.
    Submitted on Briefs May 25, 1995.
    Rehearing Denied October 19, 1995.
    Decided September 29, 1995.
    52 St.Rep. 1026.
    903 P.2d 207.
    273 Mont. 351.

      For Appellant: Robert G. McCarthy; Hennessey, Joyce, McCarthy & Wing, Butte.
    For Respondents: John M. Morrison; Meloy & Morrison, Helena.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

“Bob” appeals from an order of the Eighteenth Judicial District Court, Gallatin County, concluding that it was not in “Adam’s,” a minor child, best interest to declare paternity in “Bob.” We affirm.

BACKGROUND

“Mary” and “John” moved to Bozeman together in 1990 to establish a restaurant and bakery. At that time, Mary and John lived together and their relationship was platonic. Mary met Bob in a business context in 1991 and thereafter they began an intimate relationship. Bob moved into Mary’s and John’s apartment in the early months of 1992. In April 1992, Bob’s and Mary’s relationship ended and Bob moved out of Mary’s and John’s apartment.

In late May of 1992, Mary learned that she was pregnant. In June of 1992, Mary requested that Bob relinquish his parental rights. Bob refused. Mary and John married on September 9,1992. On December 15, 1992, Bob filed what was titled a “Notice of Intent to Claim Paternity” with the Clerk of Court for the Eighteenth Judicial District, Gallatin County. Mary gave birth to Adam on December 21, 1992. John was listed as Adam’s father on the birth certificate.

On January 5, 1993, Bob filed a petition in which he asserted that he was Adam’s biological father. Bob sought a determination of Adam’s paternity and a determination of child custody, visitation, and child support obligations. The court appointed a guardian ad litem to monitor Adam and report to the court on a monthly basis. The parties agreed to submit the question of Bob’s standing for a pre-trial ruling. The court ruled that Bob did have standing to challenge the presumption that John was the father pursuant to § 40-6-107(1), MCA.

The District Court ordered blood drawn from Bob, John and Adam to determine paternity. Mary and John opposed the order for blood samples and sought a writ of supervisory control from this Court. We denied the writ. Without waiving her right to object to a judicial determination of the father/child relationship, Mary stipulated that Bob was Adam’s biological father.

After a bench trial, the court issued Findings of Fact and Conclusions of Law in which it determined that it was not in Adam’s best interest to declare paternity in Bob and, thus, dismissed Bob’s petition. Mary and John raise numerous issues which we do not address because they neither appealed nor cross-appealed. See Rule 4, M.R.App.P. Bob’s dispositive issues are summarized as follows:

1. Whether the District Court erred when it used the best interest of the child as the standard for determining whether to make a judicial declaration of paternity.

2. Whether the District Court erred in denying Bob’s motion for a continuance.

DISCUSSION

1. Whether the District Court erred when it used the best interest of the child as the standard for determining whether to make a judicial declaration of paternity.

The District Court recognized that Bob was, in all probability, Adam’s biological father. However, in its order determining paternity, the District Court stated that “it is not in [Adam’s] best interest to determine paternity in [Bob].” In its order denying Bob’s motion to reconsider, the District Court stated that “none of the arguments set forth in [Bob’s] brief persuade the court that a different decision would be in [Adam’s] best interest.” Bob argues that the District Court erred in using the “best interest of the child” standard and, for the first time on appeal, that the District Court failed to consider his constitutional rights to equal protection and due process in its balancing of “conflicting presumptions of paternity and legitimacy.” We disagree.

This is a case of first impression in Montana. We therefore look to other jurisdictions for guidance in applying the Uniform Parentage Act (UPA). The District Court relied heavily on Lehr v. Robertson (1983), 463 U.S. 248, 103 S.Ct 2985, 77 L.Ed.2d 614. Lehr was the putative father of a child born out of wedlock. The mother married another man after the child was born. When the child was about two years old, the husband was granted a decree of adoption. Although he never supported the child or offered to marry the child’s mother, Lehr then filed an action to challenge the adoption as violating his rights of due process and equal protection. In rejecting Lehr’s arguments, the United States Supreme Court drew a distinction between a “developed parent-child relationship” as opposed to a “potential” relationship.

When an unwed father demonstrates a full commitment to the responsibilities of parenthood by “com[ing] forward to participate in the rearing of his child,” Caban [v. Mohammed], 441 U.S. [380], at 392, [99 S.Ct. 1760, 1768, 60 L.Ed.2d 297], his interest in personal contact with his child acquires substantial protection under the Due Process Clause. At that point it may be said that he “act[s] as a father toward his children.” Id. at 389, n.7, [99 S.Ct. at 1766, n.7]. But the mere existence of abiological link does not merit equivalent constitutional protection. The actions of judges neither create nor sever genetic bonds. “[T]he importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in ‘promoting] a way of life’through the instruction of children... as well as from the fact of blood relationship.” [Citations omitted; emphasis added.]

Lehr, 463 U.S. at 261, 103 S.Ct. at 2993. The Court then went on to explain that the biological connection merely gives a natural father the opportunity to become a “parent”:

The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child’s future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child’s development. If he fails to do so, the Federal Constitution will not automatically compel a State to listen to his opinion of where the child’s best interests lie.

Lehr, 463 U.S. at 262, 103 S.Ct. at 2993-94.

On December 15, 1992, prior to Adam’s birth, Bob filed a “Notice of Intent to Claim Paternity” with the Clerk of the Eighteenth Judicial District Court. Section 40-6-105, MCA, provides in relevant part:

A man is presumed to be the natural father of a child if:
(a) he and the child’s natural mother are or have been married to each other and the child is born during the marriage or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce or after a decree of separation is entered by a court;
....
(d) while the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child; or
(e) he acknowledges his paternity of the child in a writing filed with the department of health and environmental sciences or with the district court of the county where he resides, which court or department shall promptly inform the mother of the filing of the acknowledgment, and she does not dispute the acknowledgment within a reasonable time after being informed thereof, in a writing filed with the department of health and environmental sciences or with the district court of the county where the acknowledgment was filed. If another man is presumed under this section to be the child’s father, acknowledgment may be effected only with the written consent of the presumed father or after the presumption has been rebutted.
(2) A presumption under this section may be rebutted in an appropriate action by a preponderance of the evidence. [Emphasis added.]

In this case, subsections (a) and (d) favor John as the natural father. These presumptions in John’s favor, however, are rebutted by Mary’s acknowledgment that Bob is the biological father. See In re Marriage of Miller (1992), 251 Mont. 300, 825 P.2d 189, in which a statutory presumption of paternity was rebutted when mother and husband acknowledged under oath that the husband was not the natural father. In addition, subsection (e) supports Bob’s claim to paternity since he filed an acknowledgment which the natural mother did not dispute.

Although the UPA utilizes a “best interest” standard in certain contexts, it does not specifically establish that standard for determining whether a court should declare the father/child relationship. The court, therefore, based its decision on case law from other states as well as UPA guidelines which it interpreted as promoting legitimacy.

The California Court of Appeals has held that even if a putative father establishes his biological paternity to a child conceived out of wedlock, but born after the mother married another man, the nature of his relationship to the child is governed by the best interest of the child. Michael M. v. Giovanna F. (Cal. Ct. App. 1992), 7 Cal.Rptr.2d 460, 468.

The Washington Supreme Court has held that “[t]he best interest of the child standard does not entitle a court to presume that paternity determination is automatically in the child’s best interest.” McDaniels v. Carlson (Wash. 1987), 738 P.2d 254, 261. The court in McDaniels set out factors to be considered when determining whether a paternity determination is in the child’s best interest:

[I]n determining whether it is in the child’s best interest to allow a paternity action by one outside the present family, the trial court should consider the stability of the present home environment, the existence or lack thereof of an ongoing family unit, the extent to which uncertainty of parentage already exists in the child’s mind, and any factors which may be relevant in assessing the potential benefits or detriment to the child.

McDaniels, 738 P.2d at 262. A court must conclude that paternity determination is in the child’s best interest based on the facts in the record. In re Marriage of Ross v. Austin (Kan. 1990), 783 P.2d 331, 339.

We agree with the District Court’s analysis and adopt the “best interest of the child” standard for deciding whether there should be a judicial declaration of the father/child relationship in a paternity dispute under Montana’s UPA. In determining whether paternity should be declared in Bob, the District Court considered: the parties’ relationships with each other, their lifestyles and incomes; testimony from the parties, testimony from Adam’s guardian ad litem, and testimony from a social worker retained by Mary and John. The District Court concluded that based on § 40-6-201, MCA, there is a rebuttable presumption that a child born into wedlock is legitimate. The court further considered the UPA’s presumptions that a man is the natural father of a child if the man is married to the child’s mother at the time of birth, § 40-6-105(1)(a), MCA; that there is a presumption of paternity when properly acknowledged, § 40-6-105(1)(e), MCA; and that these presumptions of paternity are subject to rebuttal, § 40-6-105(2), MCA.

Through the mother’s stipulation that Bob was Adam’s father, the statutory presumptions in favor of John as the biological father were rebutted. However, as pointed out by the United States Supreme Court in Lehr, that biological determination merely sets the stage for the next question: Is it in the best interest of Adam to judicially declare the father/child relationship and thereby grant Bob the prerogatives of a parent? The probability that Bob is the natural father, although a weighty factor in applying the best interest analysis, is not the controlling consideration in judicially determining the parent/child relationship. As set forth above, the best interest analysis requires the court to look beyond the biological ties. The court must consider: the existence of a home environment; the stability of the present home and family; the extent to which uncertainty of parentage already exists in the child’s mind; the efforts and commitments (if any) that the putative father has taken to establish supportive and financial ties with the child; as well as any other factors which may be relevant in assessing the potential benefits or detriments to the child.

In the present case, the District Court considered that Bob is probably Adam’s father, a fact essentially conceded by Mary. Further, the court noted that Bob has had no contact with Adam and has demonstrated no personal commitment to or responsibility for Adam; nor has he taken steps to obtain suitable employment or housing or to establish a child support fund. The District Court weighed these facts against the stability of Mary’s and John’s marital relationship, their care for Adam, and their financial stability. The District Court noted that John’s name appears on Adam’s birth certificate, that Adam has always lived with Mary and John and they all share a strong emotional relationship, and that Adam is, by all accounts, loved and well cared for in a safe and suitable home environment.

Application of the “best interest of the child” test involves a discretionary decision by the district court. In reviewing discretionary rulings by the district court we apply the abuse of discretion standard. Montana Rail Link v. Byard (1993), 260 Mont. 331, 337, 860 P.2d 121, 125. We hold that the District Court did not abuse its discretion in deciding not to declare the father/child relationship in Bob. Rather, it correctly applied the “best interest of the child” test by considering the stability of the family relationship of Mary and John contrasted with Bob’s failure to show any commitment towards establishing a “parental” as opposed to a biological role. The court properly concluded that it was not in Adam’s best interest to judicially declare paternity in Bob.

Bob did not raise the constitutional issues of equal protection or due process below. We have held that issues not raised before the district court are generally not considered on appeal. Miller v. Catholic Diocese of Great Falls (1986), 224 Mont. 113, 116, 728 P.2d 794, 795. We therefore decline to further consider Bob’s constitutional issues.

2. Whether the District Court erred in denying Bob’s motion for a continuance.

Bob argues that the District Court abused its discretion when it denied his motion for a continuance when the guardian ad litem and the attorney for the guardian ad litem, had not been given notice of the trial and the guardian ad litem had not revised her report to the court. We disagree.

Bob did not subpoena the guardian ad litem, she therefore proceeded with a planned vacation and was out of state at the time of trial. By express agreement of both parties, she testified by telephone. She testified that she relied “on common sense” and that she had not seen Adam in seventeen months. She appears to have made only limited efforts to monitor and report on Adam. Given these facts, we hold that the District Court did not abuse its discretion when it denied Bob’s motion for an extension of time so that the guardian ad litem could update her report. To conclude on this issue, we note that the guardian ad litem did not appeal the decision of the District Court.

Affirmed.

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

      . Pseudonyms have been used in place of the parties’ actual names.

      . Section 40-6-130, MCA provides that when a child is the subject of an adoption proceeding, the court must determine whether it will be in the best interest of the child to award custody to the putative father. Since Adam is not the subject of an adoption proceeding, this section is inapplicable. Section 40-6-114, MCA, provides for a pretrial recommendation of whether judicial determination of paternity would be in the best interest of the child. If the recommendation is not accepted and the matter goes to trial, the UPA does not provide a standard for resolution of the paternity issue.
      Section 40-6-116(3)(a), MCA, allows the judgment of the court determining the existence or nonexistence of the parent/child relationship to address such things as custody, visitation, bond “or any other matter in the best interest of the child.”