No. 82-55
I N THE SUPREME COURT O F THE STATE OF MONTANA
STATE O MONTANA, F
P l a i n t i f f and Respondent,
-vs-
FORREST STANLEY BALLARD,
Defendant and A p p e l l a n t .
Appeal from: D i s t r i c t Court of t h e F i f t h J u d i c i a l D i s t r i c t , I n and f o r t h e County o f Beaverhead, The Honor- a b l e Arnold O l s e n , Judge p r e s i d i n g .
Counsel o f Record:
For A p p e l l a n t :
C h e s t e r L. J o n e s , V i r g i n i a C i t y , Montana
For Respondent :
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , Helena, Eonkana W. G. G i l b e r t , County A t t o r n e y , D i l l o n , Montana
S u b m i t t e d on B r i e f s : September 1 6 , 1982
Decided: December 29, 1982
Filed: DEC 2 9 2382 Mr. C h i e f J u s t i c e F r a n k I . H a s w e l l d e l i v e r e d t h e i l p i n i o n o f t h e Court.
Defendant appeals from h i s c o n v i c t i o n on two c o u n t s
of negligent homicide i n t h e D i s t r i c t Court of beaverhead
County. ive a f f i r m .
O f f i c e r S t e p h e n S h a f f e r o f t h e D i l l o n p o l i c e f o r c e was
on d u t y i n t h e e a r l y m o r n i n g of F e b r u a r y 1 4 , 1 9 8 1 . A t about
1 : 4 9 a.m. h e r a d i o e d t o t h e p o l i c e d i s p a t c h e r t h a t t h e r e was
a p o s s i b l e drunk d r i v e r p a s s e d o u t i n t h e m i d d l e of Selway
D r i v e on t h e e d g e of town. S h a f f e r h a d come upon a p i c k u p
truck operated by Benny Williams. Williams' truck had
stopped i n t h e southbound l a n e .
Snaffer, likewise headed south, stopped behind
Williams' truck and had his flashing warning lights on.
D u r i n g t h e s t o p b o t h men w e r e s t a n d i n g a n d t a l k i n g b e s i d e
their vehicles.
D e f e n d a n t was d r i v i n g a p i c k u p h e a d e d n o r t h o n S e l w a y
Drive. Defendant's t r u c k s t r u c k t h e Williams v e h i c l e , hit
and k i l l e d b o t h W i l l i a m s and S h a f f e r , s t r u c k t h e l e f t f r o n t
p a r t of t h e p o l i c e c a r and came t o r e s t i n a d i t c h o f f t h e
e a s t edge o f Selway D r i v e .
On F e b r u a r y 1 7 , 1 9 8 1 , d e f e n d a n t was c h a r g e d w i t h two
counts of negligent homicide. On F e b r u a r y 24, 1981, the
S t a t e gave n o t i c e to the defendant of its i n t e n t t o have
defendant designated a persistent felony offender and to
s e e k i n c r e a s e d punishment based on d e f e n d a n t ' s c o n v i c t i o n o f
burglary ( a felony) on March 25, 1975, and the five-year
s e n t e n c e imposed. D e f e n d a n t was r e l e a s e d on p a r o l e on March
1 7 , 1976.
The defendant, upon release from the Montana State
P r i s o n , was p a r o l e d a n d h e l d on f e d e r a l d e t a i n e r f o r p a r o l e violation after convicted of a car theft committed in 1970. Defendant was placed on a federal furlough program and was released from the program on July 28, 1977.
On September 17, 1981, defendant filed a motion for change of venue and a motion to quash the State's notice of
intent to seek increased punishment. The change of venue was denied after a hearing on September 23, and defendant's motion to quash was similarly denied. After a trial in early October, the jury returned a
verdict of guilty on each count. At the sentencing hearing on November 2, 1981, the judge found defendant to be a persistent felony offender and sentenced him to twenty years on each count to run consecutively or a total of forty years. Defendant appeals and presents two issues for our review: 1. Did the District Court err in failing to grant
defendant's motion for change of venue? 2. Did the District Court err in applying the persis- tent felony offender statute to defendant? Appellant correctly refers us to State v. Link (1981), Mont. , 640 P.2d 366, 38 St.Rep. 982, as setting forth tne present test as to when a change of venue should be granted: "[T]he rule is that an accused is enti- tled to a change of venue when it appears there are reasonable grounds to believe that the prejudice alleged actually exists and that by reason of the preju- dice there is a reasonable apprehension that the accused cannot receive a fair and impartial trial. People v. Berry (1967), 37 I11.2d 329, 226 N.E.2d 591, 592-593." 640 P.2d at 368, 38 St.Rep. at 985. Appeilant argues that there was a reasonable apprehen- s i o n t h a t t h e d e f e n d a n t would n o t r e c e l v e a fair t r i a l I n
t h i s case for t h r e e reasons. T h e r e was community u p h e a v a l
a b o u t t h e d o u b l e d e a t n i n c l u d i n g c o n c e r n t h a t d e f e n d a n t was
n o t b r o u g h t t o a n e a r l y t r i a l and t h a t d e f e n d a n t was s t i l l
driving after the accident. T h e r e was p r e j u d i c i a l knowledge
in the community regarding defendant's prior criminal corlduct and testimony aaduced at the venue hearing that
d e f e n d a n t was " a bad e g g and had t r o u b l e h e r e i n town f o r
years and y e a r s " and that the county attorney told some
people i n q u i r i n g about d e f e n d a n t ' s p a s t conduct t o " g e t h i s
record." F ~ n a l l y , t h e f a c t t h a t no l o c a l c o u n s e l c o u l d be
obtained tor defendant further indicates that defendant
could not recelve a f a i r t r i a l i n Dillon. These are the
p r i n c i p a l b a s e s of d e f e n d a n t ' s c o n t e n t i o n s .
Appellant has not proven "reasonable grounds to
b e l i e v e t h a t t h e p r e j u d i c e a l l e g e d a c t u a l l y e x i s t s and t h a t
by r e a s o n o f t h e p r e j u d i c e t h e r e i s a r e a s o n a b l e a p p r e h e n - s i o n t h a t t h e a c c u s e d c a n n o t r e c e i v e a f a i r and i m p a r t i a l
trlal." Link, supra.
While it is t r u e t h a t d e f e n a a n t ' s argument a c c u r a t e l y
r e i l e c t s a p o r t i o n of t h e t r a n s c r i p t of t h e venue h e a r i n g , t n e r e was o t h e r testimony s h o w i n g no p r e j u d i c i a l p r e d i s p o s i -
t i o n o r "reasonable apprehension." T h e r e was t e s t i m o n y t h a t
r h e community r e a c t l o n had s u b s i d e d s i g n i t i c a n t l y w i t h i n a
few m o n t h s a f t e r t h e a c c i d e n t f r o m two o f d e f e n d a n t ' s w i t -
n e s s e s a n d two of t n e S t a t e ' s w i t n e s s e s . The e d i t o r o f t h e D l l l o r l newspaper t e s t i f i e d t h a t h e had h e a r d n o t h i n g a b o u t defendant's prlor criminal record or any s t a t e m e n t s about t h e d e f e n d a n t ' s g u i l t o r innocence. Two o t h e r w i t n e s s e s , a
l o c a l m e r c h a n t and t h e c o u n t y a t t o r n e y , t e s t i f i e d they f e l t defendant could get a fair trial in Dillon. The county attorney further testified that a maximum of five people, other than police department employees, had remarked to him that they knew defendant had been in trouble with the law betore.
Moreover, we note that, in denying defendant's motion for a change of venue, the District Court stated that the motion could be renewed at any time, including when the jury was empaneled.
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No. 82-55
I N THE SUPREME COURT O F THE STATE OF MONTANA
STATE O MONTANA, F
P l a i n t i f f and Respondent,
-vs-
FORREST STANLEY BALLARD,
Defendant and A p p e l l a n t .
Appeal from: D i s t r i c t Court of t h e F i f t h J u d i c i a l D i s t r i c t , I n and f o r t h e County o f Beaverhead, The Honor- a b l e Arnold O l s e n , Judge p r e s i d i n g .
Counsel o f Record:
For A p p e l l a n t :
C h e s t e r L. J o n e s , V i r g i n i a C i t y , Montana
For Respondent :
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , Helena, Eonkana W. G. G i l b e r t , County A t t o r n e y , D i l l o n , Montana
S u b m i t t e d on B r i e f s : September 1 6 , 1982
Decided: December 29, 1982
Filed: DEC 2 9 2382 Mr. C h i e f J u s t i c e F r a n k I . H a s w e l l d e l i v e r e d t h e i l p i n i o n o f t h e Court.
Defendant appeals from h i s c o n v i c t i o n on two c o u n t s
of negligent homicide i n t h e D i s t r i c t Court of beaverhead
County. ive a f f i r m .
O f f i c e r S t e p h e n S h a f f e r o f t h e D i l l o n p o l i c e f o r c e was
on d u t y i n t h e e a r l y m o r n i n g of F e b r u a r y 1 4 , 1 9 8 1 . A t about
1 : 4 9 a.m. h e r a d i o e d t o t h e p o l i c e d i s p a t c h e r t h a t t h e r e was
a p o s s i b l e drunk d r i v e r p a s s e d o u t i n t h e m i d d l e of Selway
D r i v e on t h e e d g e of town. S h a f f e r h a d come upon a p i c k u p
truck operated by Benny Williams. Williams' truck had
stopped i n t h e southbound l a n e .
Snaffer, likewise headed south, stopped behind
Williams' truck and had his flashing warning lights on.
D u r i n g t h e s t o p b o t h men w e r e s t a n d i n g a n d t a l k i n g b e s i d e
their vehicles.
D e f e n d a n t was d r i v i n g a p i c k u p h e a d e d n o r t h o n S e l w a y
Drive. Defendant's t r u c k s t r u c k t h e Williams v e h i c l e , hit
and k i l l e d b o t h W i l l i a m s and S h a f f e r , s t r u c k t h e l e f t f r o n t
p a r t of t h e p o l i c e c a r and came t o r e s t i n a d i t c h o f f t h e
e a s t edge o f Selway D r i v e .
On F e b r u a r y 1 7 , 1 9 8 1 , d e f e n d a n t was c h a r g e d w i t h two
counts of negligent homicide. On F e b r u a r y 24, 1981, the
S t a t e gave n o t i c e to the defendant of its i n t e n t t o have
defendant designated a persistent felony offender and to
s e e k i n c r e a s e d punishment based on d e f e n d a n t ' s c o n v i c t i o n o f
burglary ( a felony) on March 25, 1975, and the five-year
s e n t e n c e imposed. D e f e n d a n t was r e l e a s e d on p a r o l e on March
1 7 , 1976.
The defendant, upon release from the Montana State
P r i s o n , was p a r o l e d a n d h e l d on f e d e r a l d e t a i n e r f o r p a r o l e violation after convicted of a car theft committed in 1970. Defendant was placed on a federal furlough program and was released from the program on July 28, 1977.
On September 17, 1981, defendant filed a motion for change of venue and a motion to quash the State's notice of
intent to seek increased punishment. The change of venue was denied after a hearing on September 23, and defendant's motion to quash was similarly denied. After a trial in early October, the jury returned a
verdict of guilty on each count. At the sentencing hearing on November 2, 1981, the judge found defendant to be a persistent felony offender and sentenced him to twenty years on each count to run consecutively or a total of forty years. Defendant appeals and presents two issues for our review: 1. Did the District Court err in failing to grant
defendant's motion for change of venue? 2. Did the District Court err in applying the persis- tent felony offender statute to defendant? Appellant correctly refers us to State v. Link (1981), Mont. , 640 P.2d 366, 38 St.Rep. 982, as setting forth tne present test as to when a change of venue should be granted: "[T]he rule is that an accused is enti- tled to a change of venue when it appears there are reasonable grounds to believe that the prejudice alleged actually exists and that by reason of the preju- dice there is a reasonable apprehension that the accused cannot receive a fair and impartial trial. People v. Berry (1967), 37 I11.2d 329, 226 N.E.2d 591, 592-593." 640 P.2d at 368, 38 St.Rep. at 985. Appeilant argues that there was a reasonable apprehen- s i o n t h a t t h e d e f e n d a n t would n o t r e c e l v e a fair t r i a l I n
t h i s case for t h r e e reasons. T h e r e was community u p h e a v a l
a b o u t t h e d o u b l e d e a t n i n c l u d i n g c o n c e r n t h a t d e f e n d a n t was
n o t b r o u g h t t o a n e a r l y t r i a l and t h a t d e f e n d a n t was s t i l l
driving after the accident. T h e r e was p r e j u d i c i a l knowledge
in the community regarding defendant's prior criminal corlduct and testimony aaduced at the venue hearing that
d e f e n d a n t was " a bad e g g and had t r o u b l e h e r e i n town f o r
years and y e a r s " and that the county attorney told some
people i n q u i r i n g about d e f e n d a n t ' s p a s t conduct t o " g e t h i s
record." F ~ n a l l y , t h e f a c t t h a t no l o c a l c o u n s e l c o u l d be
obtained tor defendant further indicates that defendant
could not recelve a f a i r t r i a l i n Dillon. These are the
p r i n c i p a l b a s e s of d e f e n d a n t ' s c o n t e n t i o n s .
Appellant has not proven "reasonable grounds to
b e l i e v e t h a t t h e p r e j u d i c e a l l e g e d a c t u a l l y e x i s t s and t h a t
by r e a s o n o f t h e p r e j u d i c e t h e r e i s a r e a s o n a b l e a p p r e h e n - s i o n t h a t t h e a c c u s e d c a n n o t r e c e i v e a f a i r and i m p a r t i a l
trlal." Link, supra.
While it is t r u e t h a t d e f e n a a n t ' s argument a c c u r a t e l y
r e i l e c t s a p o r t i o n of t h e t r a n s c r i p t of t h e venue h e a r i n g , t n e r e was o t h e r testimony s h o w i n g no p r e j u d i c i a l p r e d i s p o s i -
t i o n o r "reasonable apprehension." T h e r e was t e s t i m o n y t h a t
r h e community r e a c t l o n had s u b s i d e d s i g n i t i c a n t l y w i t h i n a
few m o n t h s a f t e r t h e a c c i d e n t f r o m two o f d e f e n d a n t ' s w i t -
n e s s e s a n d two of t n e S t a t e ' s w i t n e s s e s . The e d i t o r o f t h e D l l l o r l newspaper t e s t i f i e d t h a t h e had h e a r d n o t h i n g a b o u t defendant's prlor criminal record or any s t a t e m e n t s about t h e d e f e n d a n t ' s g u i l t o r innocence. Two o t h e r w i t n e s s e s , a
l o c a l m e r c h a n t and t h e c o u n t y a t t o r n e y , t e s t i f i e d they f e l t defendant could get a fair trial in Dillon. The county attorney further testified that a maximum of five people, other than police department employees, had remarked to him that they knew defendant had been in trouble with the law betore.
Moreover, we note that, in denying defendant's motion for a change of venue, the District Court stated that the motion could be renewed at any time, including when the jury was empaneled. The motion for change of venue was never renewed. The voir dire portion of the transcript was not submitted on this appeal, and appellant does not address any comments in his brief alleging prejudice on the part of the jury members actually selected. The second issue revolves around the construction of section 46-18-501, MCA, which provides in part:
"Definition of persistent felony offend- er. A 'persistent felony offender' is an - offender who has previously been convict- ed of a felony and who is presently being sentenced for a second felony committed on a different occasion than the first. An offender is considered to have been previously convicted of a felony if: "(1) the previous felony conviction was for an offense committed in this state or any other jurisdiction for which a sen- tence to a term of imprisonment in excess of 1 year could have been imposed; "(2) less than 5 years have elapsed between the commission of the present offense and either: "(a) the previous felony conviction; or
"(b) the offender 's release on parole or otherwise from prison or other commitment imposed as a result of the previous felony conviction; and "(3) the offender has not been pardoned on the ground of innocence and the con- viction has not been set aside in a post- conviction hearing." (Emphasis added.) " F e l o n y " i s d e f i n e d by s e c t i o n 4 5 - 2 - 1 0 1 ( 2 1 ) , MCA:
" ( 2 1 ) ' F e l o n y ' means a n o f f e n s e i n which t h e s e n t e n c e imposed upon c o n v i c t i o n i s d e a t h o r imprisonment i n t h e s t a t e p r i s o n f o r a n y term e x c e e d i n g 1 y e a r . "
A misdemeanor i s a n o f f e n s e w h e r e t h e s e n t e n c e imposed
i s imprisonment i n t h e county j a i l o r s t a t e p r i s o n f o r one
year or l e s s . S e c t i o n 45-2-101(36), MCA.
" C o n v i c t i o n " i s d e f i n e d by s e c t i o n 4 5 - 2 - 1 0 1 ( 1 5 ) , MCA:
" ( 1 5 ) ' C o n v i c t i o n ' means a j u d g m e n t o f c o n v i c t i o n o r s e n t e n c e e n t e r e d upon a p l e a o f g u i l t y o r upon a v e r d i c t o r finding of g u i l t y of an offense rendered by a l e g a l l y c o n s t i t u t e d j u r y o r by a c o u r t of competent j u r i s d i c t i o n autho- rized t o t r y t h e case without a jury."
A p e r s o n c o n v i c t e d o f n e g l i g e n t h o m i c i d e may b e s e n t e n c e d t o
a term n o t t o exceed t e n y e a r s i n t h e s t a t e p r i s o n , s e c t i o n
45-5-184(2), MCA.
Under Montana law an o f f e n s e is not c l a s s i f i e d a s a
misdemeanor o r f e l o n y u n t i l t h e s e n t e n c e i s imposed ( s e c t i o n
45-2-101(21), MCk, supra). Defendant a r g u e s t h a t t h e per-
s i s t e n t felony offender s t a t u t e should not apply t o defen-
dant because whether defendant is convicted of a "second
felony" ( r e q u i r e d by s e c t i o n 46-18-501, MCA, supra) on a
n z g l i g e n t homicide c h a r g e depends on whether tlie District
Court s e n t e n c e s t h e defendant t o a term exceeding one year
i n t h e s t a t e prison. Our n e g l i g e n t h o m i c i d e s t a t u t e g i v e s
tlie District Court discretion to sentence a convicted
d e f e n d a n t t o a t e r m o f l e s s t h a n o n e y e a r o r n o time a t a l l ,
which would b r i n g t h e s c o p e o f t h e o f f e n s e w i t h i n t h e m i s d e -
meanor s t a t u t e .
Thus, the issue of whether the defendant will be
convicted of a "second felony" is n o t resolved until the
d e f e n d a n t i s s e n t e n c e d and from t h i s d e f e n d a n t a r g u e s t h a t h e was n o t " p r e s e n t l y b e i n g s e n t e n c e d f o r a s e c o n d f e l o n y "
under s e c t i o n 46-18-501, MCA, a t t h e t i m e h e was s e n t e n c e d
f o r t h e n e g l i g e n t homicide charges. Defendant contends t h a t
t h e c h a r g e i n t h i s c a s e i s n o t a c h a r g e o f a f e l o n y and d o e s
not become a felony until following the sentencing.
Defendant a r g u e s t h a t t h e charge remains an " o f f e n s e " u n t i l
s e n t e n c e i s imposed.
We reject defendant's contentions a s being a hyper-
t e c h n i c a l c o n s t r u c t i o n which c o n t r a v e n e s t h e p u r p o s e of t h e
persistent f e l o n y o f f e n d e r s t a t u t e . W e note t h a t defendant
d o e s n o t q u e s t i o n t h e f a c t t h a t h e h a s b e e n p r e v i o u s l y con-
v i c t e d of a felony. The nub o f d e f e n d a n t ' s argument is a
timing question and, as a practical matter, the District
C o u r t h e r e must have imposed a sentence i n e x c e s s of one
year in the state prison before the persistent felony
o f f e n d e r s t a t u t e was triggered, a l l o w i n g t h e e n h a n c e d s e n -
tence. As a result, t h e f i n a l s e n t e n c e imposed was b a s e d o n
a s e c o n d f e l o n y c o n v i c t i o n a s r e q u i r e d by s e c t i o n 46-18-501,
PICA.
S e c t i o n 4b-18-501(2), MCA, c l a s s i f i e s a person as a
persistent felony offender if less than five years have
e l a p s e d between t h e commission o f the present offense and
defendant's release on parole for the previous felony
conviction. The p r e s e n t o f f e n s e o c c u r r e d on February 14,
1981, and defendant was paroled from h i s previous felony
c o n v i c t ~ o n ( b u r g l a r y ) on March 17, 1976, clearly falling
within the five-year time l i m i t .
It is c l e a r from t h e f a c e of the persistent felony
o f i e n d e r s t a t u t e t h a t t h e p u r p o s e b e h i n d i t was t o a l l o w a
D l s t r i c t C o u r t t o impose a n i n c r e a s e d s e n t e n c e f o r d e f e n d a n t who meets the flve-year criterion set iorth above. As stated earlier, there is no question raised as to defendant's first ieiony conviction. Here, the conviction on the two counts of negligent homicide involved the defendant, legally intoxicated, killing two people witn his pickup. Clearly
defendant could have fallen within the classification of a dangerous offender in the legislative mandate that governs
Title 46, Chapter 18 (wherein the persistent felony offender statute appears), i.e., that the chapter be liberally con- strued to the end that dangerous offenders be correctively treated in custody for long terms as needed. Section 46-18- 101, MCA. Defendant's attempt to avoid the consequences of his actions by hypertechnical statutory construction is not
well taken. Persistence in crime and failure of earlier discipline to effectively deter or reform justify more drastic treat- ment. Pennsylvania ex rel. Sullivan v. Ashe (1937), 302 U.S. 51, 58 S.Ct. 59, 82 L.Ed. 43. Increasing the sentence of a persistent felony offender is entlrely consistent with the constitutional mandate that laws for the punishment of crime shall be founded on the principles of prevention and reformation. Art. 11, Sec. 28, 1972 Mont. Const.; State v. Maldonado (1978), 176 Mont. 322, 578 P.2d 296. Affirmed.
~~4.wcrcb,,&~ Chief Justice We c o n c u r :