STATE v NOLAN
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STATE OF MOK TAhii, Plaintiff and Respondent, DONNIE NOLAN, Defendant and Appellant. APPEAL FROM. D ~ s t r ~Court of the Th~rteenth et Judlc~al District, In and For the County of Yellowstone, Honorable G Todd Baugh, Judge Presiding COGNSEL OF RECORD: For Appellant: Vellssa Eduards, 4ttomey at Law. Billmgs, Montana For Respondents: McGrath, Attorney General; Mlcheal S. Honorable M ~ k e Welienstein, Assistant Attorney General, Helena, Montana Dennis Paxinos: County Attorney, Billings, Montana Subm!ttcd on Rr~efs.July 25. 2002 Decided January 30,2003 Filed: ChicPdusticc Karla ', 4 Gray delivered the Opinion of the Co:iri. y1 Donnic Nolan appcals from ihc judgment rind senirslce entered bj the Thirteenth Judicial District Coiln, Yclicv~stone County, on a jury verdict coni.ictiny hirn of criminal endangermei~t resisting an-cst. We afirin. and 72 LVe address the following restated issues: 13 1. Did the District Court e n by instructing the jury on flight? 74 2. Did the District Coun e n by improperly considering Nolan's poverty and social relationships in determining his sentence? BtICKGROLTD 75 On December 9; 1998, the State of Montana charged Nolan by information with the felony offenses of assault on apeace officer andcriminal endailgerment. The case proceeded to a jury trial at which the following factual information was elicited through testimony. 16 1 During the early morning hotirs of December 6, 1998?Billings Police Department Officer Shawn Finnegan observed a vehicle traveling 52 miles an hour in a 35 mile-per-hour specd zone. Finuegan activated the overhead lights and siren on his patrol car, but the driver did not pull over. Instead, the driver continued driving at high speed through a residential neighborhood. Fimlegan was unable to safely match the other vehicle's specd because of the ice and snow on the road and the parked ears on both sides of the street. The speeding vehicle proceeded past bvo stop signs without slowing and eventually crashed into innltiple parked vehicles, which brought it to a stop. 77 Dcnise Biiggio ran from the passenger side of :ha: crashcd vckicle, screaming and - crying. Her face ~ v a bloodied. After tending to Boggiil: Fifinecan observed that no one else s \+-asin thc vehicle, Boggio told Finnrgan that "iolan was the driver: and deseribcd him and his clothing. Nolan and Boggio had argued while driving, he had hit her and she was scared u because of his driving: b t he had not responded to her requests to be let out of illc vehicle. 78 Cindy Johnson \+as asleep in her home, located near the crash scene, \+hen she was awakened by the sound of someone coming in her front door. She got out of bed and encountered Yolan-a stranger to her-in her house. Fle was bleeding and stated that someone was trying to kill him. When Johnson said she was going to call the police, Nolan told her not to do so, saying that he had been trying to sell drugs to the person who tried to kill him. Johnson called the police, but Nolan left the house before officers arrived. 79 Shortly thereaftcr and near the same area, Officer David Dierenfield spotted Kolan and asked to talk to him. Nolan told Dierenfield he was not cvbo they were looking for and asked to be left alone. Dierenfield then told Nolan he was under arrest and asked him to remove his left hand from his coat pocket. Xolan kept hrs hand in his pocket and began to walk towards Dierenfield. After several orders to show his hands, Nolan continued to walk towards Dierenfieid wit11 his hand in his pocket. Dierenfield drew his weapon and moved behind his patrol car for cover. As he continued towards Dierenfield, Kolan said "Go ahcad and shoot." Eventually llolan removed his cmpty !land from his pocket. Diererificld again told Xohan he was under rrrrest, but Xoian turned and walked away. Diererifleid hotstcrcd his v/er:.pon and fo!?oivedYoian, rvha began to rdn. 4:10 When DicrcnfieId caught Xoian, the two men fought, both o f ihen~ slipping on thc ice. Nolan broke free and ran. Diereniield caught him, and the two fought again. Several other officers arri~vec!and %%ere to s~ibdue handcuff X~oIan able and after pepper-spraying him. During the altercation, Dierenficld received cuts and serapes to his knuckles and knee, and one of his fiitgernails was partially tom off. 71 1 Thejury ultimately eonvictedXolanof criminal endangerment, a felony; but could not agree on a verdict on the felony charge of assault on a peace officer. Instead, the jury returned a guilty verdict on the lesser-included misdemeanor offense of resisting arrest. 7/12 Nolan did not appear at his original sentencing hearing; and the District Court issued a warrant for his arrest. Nola:: was arrested severa! months latcr in southern California and returned to Montana. On May 8,2000, the District Court sentenced him to five years in the Montana State Prison on the criminal endangerment conviction and six months in the Yellowstone County Detention Facility on the resisting arrest conviction, with the sentences to run concurrently. The District Court listed numerous reasons for its sentence. Nolan appeals. DISCIISSION 7113 1. Did the District Court err by instructing the jury on flight? 714 ,4fier Nolan's trial>we deteimined in State ~L,, Arfnl/>' i ( i 1 -r 1911 .A . ~9 J , a' ""7 4 +6: 297 ?v,lont. . l i 1,: lib. 991 P.2d 922: qi 36. ?ha: flight insrructions improperij- i q c c t argiimenl into a trial .. , court's instmctia~~s that si!ch comment sboltl be iimlted J counsel. XKe concluded that, and . : "in future cases," even where evidence of flight has becn ~ r o p e d y admitted, a flight instrtction should not be gicen. finil, u546,48. 115 In the present case, Nolan objected to the State's proposed fl~ght instruction on the grounds that the instruction was not timely filed and the circumstances did not uarrant a flight instruction. The District Court overruled the objections and instructed the jury as follows: If you are satisfied that the crime charged in the information has been committed by someone, then you may take into consideration any testimony showing, or tending to show, flight by the defendant. This testimony may be considered by the jury as a circumstance tending to prove a consciot:sness of guilt, but is not sufficient of itself to prove guilt. The weight to be given such circumstance and the significance if any, to be attached to it_are matters for the jury to determine. Nolan asserts entitlement to the application of Hall to his case 716 Our general rule is that an appellant must show that an objection mas made at trtal on the same basis as the crror asserted on appeal. See State v. Davis, 2000 M T 199,T 38,300 Mont. 458,1138,5 P.3d 547, l j 38 (citations omitted). Requiring a defendant to raise the issue in the district court through a specific objection gibes the prosecution and the trial court the ability to maid or correct the purported crror. Unvis, bj 38. 717 Since Hall; we have rejecieci--on three occasions-appcll:i~~ts'arguments against a flight instruction when the proper and spccific objction was not made at trial. See llavis> $738-39; State v Baker, 2000 h i 1 ?(IS,;7 29--?!3,301 408, T;tl29-3ii, I5 P.3$27% : "clan?. 2": 29-30; State v. I~~ctterz, lClT 295,T 67,297 Mont. 127, f 67,991 P.2d 939,T 67. Yvlien 1399 the defendant does not raise a "'finil-tyc" abjection to the flight instraction during thz settlement of instn~ctions district court, appellate review of that claim is waived. Davis, in 7 39. 718 Nolan concedes he did not raise the proper objection at trial. Here, however, unlike the defendants in Davis, Baker and Hatterz, Nolan asserts entitlement to consideration of his f-lnll-related claim on appeal pursuant to 5 46-20-701(2), MCA. Section 46-20-701(2), MCA, allows a claim of error based on constitutional rights to be raised on appeal even when not objected to at trial fthe appellant establishes the error u-as prejudicial and "tltle right assei-ted in tlre claim did not exist at the time of trial and has been determilled to be retroactive in its ilpplication[.]" Nolan contends his citnstitutional rtght to a fair trial was v~olated the giving of the fllght ~nstructionand the error was by prejudicial. We need not consider these contentions, however, because 9 46-20-701(2)(a), IMCA, applies only where the right asserted "has been determined to be retroactive in its application." \lie stated without equivocation in Ifall that our ruling that flight instructions should not be given applied only to "future trials." Hall, vli 46,18. In other u-ords,the ruling bvas prospective, not retroactive, in its application and Nolan's trial occurred before that decision. 719 We concindc that Kolan svsived his right to raise a Hail-related objection on appeal tinder Davis,which requires that the proper objection be made at trial. \Vc fu-ther conclude that Nolan has not ax?the requirements of 5 46-20-701(2)(a), MCA1 for raising a claimed constitutional error on appeal to which objection was not made at trial. Ii:e hold, therefore, that Nolan has not established emor in the District Court's giving of the flight inshuction. 720 2. Did thc District Court e n by improperly considering Kolan's po~erty social and relationships in determining his sentence? 721 The District Court sentc~lced lljolan to five years for criminal endangcmlcnt and six months for resisting arrest. Under 5 45-5-207(2), MCA, the maximum sentence for criminal endangerment is ten years. Under 3 45-7-301(3), MCA, the maximum sentence for resisting arrest is six months. Thc sentences are within statutory parameters. Nolan nevertheless contends his sentence :,iolates S 46-18-101(3)je), MCA, and his constitutional due process rights. We address each contention in turn, mindful that \uc review- criminal sentences for the legality only, confining our review to whetl~cr sentence is within statutory parameters. Our review of constitutional questions is pleilary. State v. Pvitchett, 2000 MT 261,Iq 6,27, 302 Mont. 1,711 6,27, 11 P.3d 539, $7 6, 27. $122 Section 46-IS-lOl(S)(c), MCA, which is part of Montana's correctional and sentencing policy, provides, "Scntencin_g practices must be neutral with respect to the offender's race, gender, religion: national origin, or social or economic status." Nolan contends the record indicates his sentence was based on the prohibited factors of "social or economic status." We note that the statute does not &fine "econornii status," nor does either p " y .* . . c!early do so, Nolan apparently equates "cconornic status to rndrgency or polrefly and, Tor pnvosees BF this opinion only, vie will do the same. 723 Nolan presented the testimony of three witnesses during the sentencing hearing. The thrust of the kstirnor~y was that Nolan needed counseling, no? prison. In addition, each of Nolan's witnesses, including Boggio, testified in some fasbion that Nolan is a good father, Neither the State nor the District Court inquired about this subject during Boggio's testimony. After Nolan's second witness, Cherise Lynn McArthur, testified that Kolan was a good father, the court inquired how many children Nolan has, and MeArthur responded "I believe he has five-four?" On cross-exan~ination, State also inquired about the number the of Nolan's children. On cross-examination ofNolan's third witness, Cassandra Vargas, the State asked how many children Nolan has, and S'argas responded ""Un;, five---six,actually, I'm sony." Almost immediately thereafter, the State asked Vargas whetller Kolan supports any of the children, and she stated "not that I know of." The transcript reflects that Vargas then laughed. Nolan also gave a lengthy statement to the court and talked about how much he loves his children and they love him. The court inquired about the extent to which he supports the children and Nolan's various answers reflect that the support, if any, is sporadic. He also acknowledged a 540,000 hospital debt on which he has paid nothing. 724 In its written sentencing order, the District Court listed numerous reasons for the sentence imposed, including the violence of thc felony offense at issue, Kolan's 25 traffic- rciatcd convictions, 2 prior felon; convictions involving violence, and the nuineraus opportunilics previously git-en %!an to be a rssponsible, lam--abiding citizen. In addition, coufi onsid.-.red that "wi.i?i;-employed [Xoian] fi3ili.d to he n.sp;_miihii. to.jardi pagng any debts including non-support for the number of dependents." 725 ' . Nolan argues the District Court rclied on his poverty as a factor in sentenslug in violation of 9 46-1 S-101(3)(c), MCA. 12s set forth a b o ~ ~the record does not support this e, argument. While the court notedNolanls failure to pay his debts, the record does not indicate that poverty was a factor. As a general matter; failure to pay debts does not equal poverty. Moreover, the court's obsewation that Nolan did not make payments toward his debts was expressly limited to times when Kolan was employed. We conclude the District Court did not rely on Nolan's alleged poverty in violation of 3 46-1 8-101(3)(c), MCA. qj26 Nolan also contends Iris scntcnce violates 5 36-18-101(3j(c), MCA, because the District Court focused on his "social status" by inquiring about such things as the number of children he had fathered out of wedlock. His contention is without merit. 727 First, Nolan did not object to the inquiries at the time they were made, as required by Rule 103(a)(l), M.R.Evid. Second, Uolan opened the door to the court's inquiries by presenting both witness testimony and his own statement regarding being a good father and loving his children. Having done so, he cannot now complain that the court inquired furtl~er into those subjects. Finaiiy, the court's sentencing order, from which this appeal is takcn, does not mention or rely on the number of Nolan's children. L e conclude the District Court V did not rely or,";olaii's social status in violatioii 0 " 46-1 8-10 L(2)(<), "IlcA, in snlcncing Xola:1. "28 \ire ne.xttur11 . . . iio]an's c!a!m t,~ ahis sentence r~c!.tesh i s consliiidonai dxil process i rights. He first asserrs the District Court's viola~ion 5 46-!5-IDl(?)(c)~ klCAt resulted in of a violation of his due proccss righb, Having derermincd above that the coult did not violate S 46-1 8-101 (3)(c), MCA, we need not address this contention further. 729 Nolan also makes a broader due process argument, h o u ~ x e r .Quoting from Stnte v Fai-veil (1984), 207 Mont. 483, 497, 676 P.2d 168. 176 (citation omitted), he asserts the court's consideration of his "financial background in setting. . . a sentcnce [was] so arbitrary V or unfair as to be a denial of due process." He also relies on I'ritclzctt, ljsi35, 37, u here v e held that a defendant's due process rights were >iolated when the district court record led us to conclude $lie sentence was based on indigency. Farrell and Pi-ifchert are readily distinguishable. 530 in Farvell, the defendant was convicted of theft of public assistance funds and was given the maximum ten-year sentence, all suspended. Farrell, 207 Mont. at 487, 676 P.2d at 171. The sentencing court stated that it was imposing the maximurn sentence, suspended, because it did not think the defendant could pay the restitution imposed in less than 10 years. lirrrell, 207 hlont. at 394,676 P.2d at 174. The defendant appealed the sentence. 73 1 lVe stated in Fcivueil our belief that his due process rights might have been violated because indigency may have been the sentencing criterion, which would infringe on the fi~iindan~ental fairness protected by due process rights. Fiiurzil, 207 Mont. at 498, P.Zd 676 at 177 (citation omittcdj. ""Due process r-equircs only that indigcncy or poverty not be used li, as !he touchstone fir imposing the ma:i.imum a!lovgablc piiaisi?mt.nt." F ~ ~ n - g 207 M o r t . at 499, 675 P.2d at 177. 732 in Pritciieti, the delrcndant was convicted of burgiary and given the li,axirnun32C-year sentence, all suspended. Pritchetr, 7 26. The record revealed that the person who prepared the presentenee iilvestigation report explicitly recommended the sentence "[tlo g i w the Defendant adequate time to pay off the restitution." Prirclzett, S 3. We determined that, while the sentencing court did not expressly state it was doing so, sufficient evidence of record supported a conclusion that the length of the sentence was based on the defendant's indigency, thus violating his due process rights. Pritchen, 717 30, 34-35. 533 In significant contrast to Fai-i-ell and Yriichett, Nolan did not receive the maximuin sentence for his felony offense and his sentence did not include restitution. Moreover, it u-as clear in Farrell and Pritclzett that those defendants' indigency was the "touchstone" for imposing the maximum allo\vable punishment. Here, the District Court listed numerous reasons for its sentence, including a criminal record of violent felony offenses. Only one of the considerations was that Nolan did not pay his debts "while employcd" and, as discussed above, failure to pay debts while employcd is not equivalent to poverty or indigency. Finally, it is clear in this case that the passing refkrence to Xolan's failure to pay his debts was not "tl~e touchstone" o f his s e n t c ~ ~ c e , c6nclude that Nolan's duc process rights were nor We 333 Having found no statutory or constitutional violation, we hold thc District i'nur: did not err in sentencing holan *I35 Affirmed. We concur:
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