STATE v LORENZ
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NO. 94-286 IN THE SUPREME COURT OF THE STATE OF MONTANA 1994 THE STATE OF MONTANA, Plaintiff and Respondent, -vJOHN JACOB LORENZ, Defendant and Appellant. APPEAL FROM: District Court of the Seventh Judicial District, In and for the County of Richland, The Honorable Richard G. Phillips, Judge presiding. COUNSEL OF RECORD: For Appellant: William Hooks, Helena, Montana For Respondent: Hon. Joseph P. Mazurek, AttorneGyen~nxal, Crew Helena, Coughlin, Asistant Attorney County Montana; Gary Ryder, Deputy Richla'nd Attorney, Sidney, Montana Submitted on Briefs: October 13, 1994 Decided: October 20, 1994 Clerk Justice James This of the from appeal Seventh purposes of sole interpreting law, that Lorenz Lorenz, a of along dangerous his entered court and findings a jury court a did "Statement stated as and the its State St. hold its "sole dangerous offender was its requiring such the Wing 223, for and sex for matter Section 46-18-404(l), interpretation MCA, provides, found guilty offenses. of Lorenz On as Court a "for a dangerous or Lorenz (1994) _ hearing, but, instead, Designation." designating of in 5 Lorenz 46-18-404, pertinent The as MCA, part: [T]he sentencing court shall designate an offender a nondangerous offender for purposes of eligibility for parole under part 2 of chapter 23 if: (a) during the 5 years preceding the commission of the offense for which the offender is being sentenced, the offender was neither convicted of nor incarcerated for an offense committed in this state or any other jurisdiction for which a sentence to a term of 2 of 229. Court's for a erred designation. a reason" Court District and additional Reasons that v. Rep. an tried reasons for offender. felony to prior offender as designation case reasons its District dangerous the of remand. require, various reversed 51 of a statement the to Court. dangerous reverse MCA, articulating not a whether of remanded P.2d __, as the supporting codefendant, was designation." _, The with sentence, we nondangerous is designated County offender additional appeal of the Court We 46-18-404(l), be Richland appeal Mont. § on of (Lorenz) eligibility. issue O'pinion entry District J. Lorenz parole the the Judicial John of The by delivered. an is designation in C. Nelson a as imprisonment in excess of 1 year could have been imposed: and the court has determined, based on any (b) presentence report and the evidence presented at the trial and the sentencing hearing, that the offender does not represent a substantial danger to other persons or society. The District Court interpreted this statute as requiring a dangerous designation unless conditions of both the defendant can satisfy the (a) and (b)--i.e. that he not have been convicted of nor incarcerated for any felony within the preceding five years and that he does not represent a danger to other persons or society. Since the court found that Lorenz had two prior felony convictions within the last five years, it concluded that he must be designated a dangerous offender as a matter of law. The court did not make any finding concerning whether Lorenz represented a substantial danger to other persons or society. We review the District Court's conclusions of law to determine whether its interpretation of the law was correct. Christensen (1994), _ Mont. -, ___ P.2d _, State v. 51 St. Rep. 542. Here, we hold that the District Court incorrectly interpreted § 4G18-404(l), MCA. Lorenz argues, and the State concedes, that our decision in State v. Dahl (1980), 190 Mont. 207, 620 P.2d 361, is dispositive of the issue raised in the instant appeal. In that case the defendant had a prior felony within five years of the offense involved in the appeal. The district court, concluding that it was required to do so under the statute, designated Dahl as a dangerous offender at sentencing. -...-.-, Dahl 620 P.2d at 364-65. 3 We determined that the district court erred and that, while not a model of clarity, the statute is "mandatory only where the circumstances require the sentencing court to sentence one as a nondangerous offender." 404(l), Dahl - , MCA, 620 P.2d at 365. We concluded that § 46-18- "does not require the judge to designate one as dangerous; rather, it sets forth the circumstances under which the defendant must be designated as nondangerous." Dahl -(I 620 P.2d at 365. Under the statute, as interpreted in m, if the defendant satisfies both subsections (a) and (b) of 5 46-18-404(l), MCA, then he & be designated as a nondangerous offender for parole eligibility purposes. On the other hand, if the defendant satisfies the prerequisites of only one of the subsections of § 4618-404(1) then the court may, in its discretion, designate the defendant either dangerous or nondangerous. (19881, State v. Miller 231 Mont. 497, 517, 757 P.2d 1275, 1287. Here, the court erroneously concluded that it had no discretion and that it was required to designate Lorenz a dangerous offender as a matter of law. Accordingly, no inquiry was made nor were any findings entered or reasons articulated as to whether Lorenz represents a substantial danger to other persons or society. Where the court refuses to exercise its discretion because it erroneously concludes that, as a matter of law, it has none, reversal and remand are required. The District Court's designation of Lorenz as a dangerous offender is, accordingly, reversed, and this case is remanded with 4 instructions that the court hold a hearing on whether Lorenz represents a substantial danger to other persons or society under 5 46-18-404(1)(b), MCA. In addition to any presentence report and the evidence at trial and sentencing hearing, the court shall consider, along with the arguments of counsel, such additional admissible evidence as the defendant and the State may wish to offer. Thereafter the court shall enter its finding designating Lorenz either dangerous or nondangerous for parole eligibility purposes and shall articulate its reasons for such designation. See, § 46-18-404(3), MCA; State v. Buckman (1989), 236 Mont. 37, 40, 768 P.2d 1361, 1363; and State v. Belmarez (1991), 248 Mont. 378, 381-82, 812 P.2d 341, 343-44. REVERSED and REMANDED for further proceedings consistent with this opinion.
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