STATE v MCGUIRE
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NO. 93-070 IN THE SUPREME COURT OF THE STATE OF MONTANA 1993 STATE OF MONTANA, Plaintiff and Respondent, -vsJOHN LEE McGUIRE, i Defendant and Appellant. APPEAL FROM: District Court of the Eighteenth Judicial District, In and for the County of Gallatin, The Honorable Larry W. Moran, Judge presiding. COUNSEL OF RECORD: For Appellant: Jeannette Ellen Berry; Berry & Bordy, Bozeman, Montana For Respondent: Hon. Joseph P. Mazurek, Attorney General, Micheal S. Wellenstein, Ass't Attorney General, Helena, Montana A. Michael Salvagni, Gallatin County Attorney, Marty Lambert, Chief Deputy Gallatin County Attorney, Bozeman, Montana Submitted on Briefs: Decided: Filed: August 12, 1993 October 4, 1993 Justice Karla M. Gray delivered the Opinion of the Court. John McGuire appeals the sentence imposed by the Eighteenth CoUnty, Judicial District Court, Gallatin following conviction for one count each of felony theft and burglary. We affirm. The procedural facts relevant to this appeal are set forth in State v. McGuire, No. 92-534 (Oct. 4, 1993) (McGuire I). Subsequent to sentencing in Flathead County, McGuire was sentenced on the Gallatin County theft and burglary convictions to concurrent terms of ten and twenty years imprisonment, respectively, with five years suspended. The District Court's sentence contained no reference to the Flathead County sentence and did not expressly provide that it would run concurrently with that previously imposed sentence. The issue on appeal is whether the District Court erred in sentencing McGuire on the Gallatin County charges. McGuire correctly notes that the court in Flathead County expressly made its sentence consecutive to the one to be imposed in Gallatin County. 18-401(1) He also correctly argues that, pursuant to 5 46- (a), MCA, his Gallatin County sentence is consecutive to the Flathead County sentence because it was not expressly ordered to run concurrently. On that basis, McGuire contends that the sentences are ambiguous because they run consecutively to each other and neither has a definite commencement date. While McGuire argues that the Gallatin County sentence was invalid and illegal, any ambiguity resulting from the combined effects of the Flathead and Gallatin County sentences was removed 2 by our decision in McGuire I. There, we determined that the court in Flathead County exceeded its sentencing authority under § 46-18401, MCA, by ordering its sentence to be served consecutively to one not yet imposed. We modified that sentence and judgment, striking the portion providing for consecutive sentences. McGuire concedes that 5 46-18-401(1)(a), MCA, authorizes the District Court in Gallatin County to make its sentence consecutive to the one imposed by the court in Flathead County. Under that statute, the court imposing the second sentence has the discretion to make the sentences concurrent; results in consecutive sentences. failure to expressly do so McGuire I, No. 92-534, slip op. at 3. It is clear that the District Court in Gallatin County had the statutory authority, but no affirmative duty, to merge its sentence with the one imposed in Flathead County: it declined to do so. McGuire asserts no actual error by the District Court in Gallatin County in exercising its discretion under, or in otherwise applying, § 46-18-401(1)(a), MCA. We hold that the District Court did not err in sentencing McGuire on the Gallatin County charges. and this case is that the The effect of McGuire I Gallatin County sentence will run consecutive to the sentence imposed in Flathead County, as modified by this Court in McGuire I. Affirmed. We concur: October 4, 1993 CERTIFICATE OF SERVICE I hereby certify that the following order was sent by United States mail, prepaid, to the following named: Jeannette Ellen Berry Berry & Bordy 2631 W. Main St. Bozeman, MT 59715 Hon. Joseph P. Mazurek Attorney General Justice Bldg. Helena, MT 59620 A. Michael Salvagni, County Attorney Marty Lambert, Deputy County Attorney 615 So. 16th Ave., Rm. 100 Bozeman, MT 59715 ED SMITH CLERK OF THE SUPREME COURT STATE OF MONTANA
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