State v. Lucas

• Court: Montana Supreme Court
• Decided: November 14, 1995
• Docket: 95-171
• Status: Published

Opinion

No. 95-171 IN THE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA, Plaintiff and Respondent,

v. '. " '" C,.,'I,: . , '. . ,';, <.VRT GENE E. LUCAS, ..; ; " "., ", , ,; i,', ,~:\~ ~

Defendant and Appellant.

APPEAL FROM: District Court of the Sixteenth Judicial District, In and for the County of Rosebud, The Honorable Joe L. Hegel, Judge presiding.

COUNSEL OF RECORD: For Appellant: William F. Hooks, Appellate Defender, Helena, Montana For Respondent: Hon. Joseph P. Mazurek, Attorney General, Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana Lee Kerr, Rosebud County Attorney, Forsyth, Montana

Submitted on Briefs: October 19, 1995 Decided: November 14, 1995 Filed: Justice Terry N. Trieweiler delivered the opinion of the Court.

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1995 Internal Operating Rules, the following decision shall not be

cited as precedent and shall be published by its filing as a public

document with the Clerk of the Supreme Court and by a report of its

result to State Reporter Publishing Company and West Publishing

Company.

Defendant Gene E. Lucas was convicted in the Sixteenth

Judicial District Court in Rosebud County of two counts of criminal

possession of dangerous drugs and misdemeanor theft. He was

designated a persistent felony offender and sentenced to serve two

consecutive terms of five and ten years in the Montana State Prison

and a concurrent term of six months in the Rosebud County Jail.

Lucas appeals the District Court's imposition of a prison sentence.

We vacate his sentence and remand to the District Court for

resentencing.

The issue on appeal is whether the District Court erred when

it failed to consider alternatives to imprisonment for a nonviolent

felony offense pursuant to §§ 46-18-201(10) and -225, MCA.

FACTUAL BACKGROUND

On October 7, 1994, the State charged Lucas by information

with one count of criminal possession of dangerous drugs, a felony,

in violation of § 45-9-102, MCA. Lucas was released on bail on

October 7, 1994. On January 26, 1995, a jury found Lucas guilty of

criminal possession of dangerous drugs.

2 On January 9, 1995, the State charged Lucas by information

with one count of felony theft in violation of § 45-6-301, MCA, and

one count of criminal possession of dangerous drugs, a felony, in

violation of § 45-9-102, MCA. Lucas was accused of committing both

crimes while awaiting trial of the first charge of criminal

possession of dangerous drugs. On January 19, 1994, the State

filed a notice of intent to seek a persistent felony offender

designation for Lucas. On January 30, 1995, Lucas pled guilty to

the second charge of criminal possession of dangerous drugs.

For the first offense of criminal possession of dangerous

drugs, the court sentenced Lucas to serve a five-year term in the

Montana State Prison. For the second offense, the court designated

Lucas a persistent felony offender and sentenced him to a term of

ten years in the Montana State Prison, to be served consecutively

with his first sentence.

On appeal, Lucas contends that since he was designated a

nonviolent felony offender as defined in § 46-18-104(3), MCA, the

District Court had to consider alternatives to imprisonment

pursuant to § 46-18-201 (10), MCA, in light of the criteria set forth in § 46-18-225, MCA. Lucas further contends that if the court determined that imprisonment was necessary, it had to state its reasons why alternatives to imprisonment were not selected

based on the criteria set forth in § 46-18-225, MCA.

3 DISCUSSION

This Court has addressed a district court's failure to

consider alternatives to imprisonment at the Montana State Prison

for a nonviolent felony offender, pursuant to §§ 46-18-201(10)

and -225, MCA, inStatev.Pence (Mont. 1995),902 P.2d41, 52 St. Rep.

937; State v. LaMere (Mont. 1995), 900 P.2d 926, 52 St. Rep. 828; and

State v. Stevens (1993), 259 Mont. 114, 854 P.2d 336. In each case, we

remanded the sentence to the district court to consider

alternatives to imprisonment at the Montana State Prison as

required by §§ 46-18-201(10) and -225, MCA.

In Pence, we set forth the obligations of a trial court when

sentencing a nonviolent felony offender:

Initially, a district court must consider alternatives to imprisonment. Second, in considering al ternati ves to imprisonment, a district court must examine the ten sentencing criteria found in § 46-18-225, MCA. Finally, if a district court decides against alternatives to imprisonment, it must provide reasons why it did not select alternatives.

Pence, 902 P.2d at 46 (citing Stevens, 854 P.2d at 337).

In this case, the State concedes that the District Court, in

sentencing Lucas, failed to articulate consideration of

alternatives to imprisonment. Therefore, we hold that in light of our previous decisions and the State's concession, this matter

should be remanded to the District Court for compliance with the

three Stevens requirements.

Lucas also contends that he is entitled to a new sentencing

hearing. However, we hold that a new sentencing hearing is

4 · ..

unnecessary. A review of the record demonstrates that a full

hearing was held prior to the original sentencing order and that

evidence presented addressed all of the relevant criteria set forth

in § 46-18-225, MCA. We note that Lucas himself testified at the

sentencing hearing and had the opportunity to present any

additional evidence that he felt the court should have considered.

For the reasons stated above, we vacate Lucas's sentence and

remand to the District Court for resentencing consistent with this

opinion and pursuant to §§ 46-18-201(10) and -225, MCA.

I~ice

We concur: