State v. Ballard ( 1982 )

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 :