State v. Larry Garland , 339 Mont. 433 ( 2007 )

November 6 2007
DA 06-0659
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 280STATE OF MONTANA,
Plaintiff and Appellee,
v.
LARRY STEVEN GARLAND,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis And Clark, Cause No. ADC 1993-169
Honorable Dorothy McCarter, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Larry Steven Garland (Pro Se), Shelby, Montana
For Appellee:
Hon. Mike McGrath, Montana Attorney General, C. Mark Fowler,
Assistant Attorney General, Helena, Montana
Leo Gallagher, Lewis and Clark County Attorney, Lisa Leckie,
Deputy County Attorney, Helena, Montana
Submitted on Briefs: July 18, 2007
Decided: November 6, 2007
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Appellant Larry Steven Garland, proceeding pro se, appeals from the decision of
the District Court for the First Judicial District, Lewis and Clark County, denying
Garland’s Petition to Modify Defendant’s Written Judgment to Conform to the Courts’
Oral Pronouncement of Sentence. We affirm.
¶2 The issue on appeal is as follows: Does the District Court’s written judgment and
commitment conform to the court’s oral pronouncement of sentence?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On October 29, 1993, Garland was charged by information with one count of
deliberate homicide, in violation of § 45-5-102, MCA. This charge stemmed from an
October 22, 1993 incident in which Garland shot and killed his wife, Nina Jean Garland.
Garland pleaded not guilty to the charge on November 2, 1993.
¶4 On March 16, 1994, Garland changed his plea to guilty of one count of mitigated
deliberate homicide. The District Court, the Honorable Dorothy McCarter presiding,
ordered a presentence investigation and set Garland’s sentencing hearing for April 26,
1994. Present at that hearing were Judge McCarter, Lewis and Clark County Attorney
Mike McGrath, Garland, and his attorney, J. Mayo Ashley. Initially, Judge McCarter
imposed a 30-year sentence for mitigated deliberate homicide and a 10-year sentence for
use of a dangerous weapon in the commission of this offense and ordered these sentences
to be served consecutively. Judge McCarter then explained her reasoning behind the
sentence as well as the conditions on Garland’s parole eligibility.
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¶5 After doing so, Judge McCarter asked the county attorney if she had omitted
anything, at which point the following discussion ensued:
MR. MCGRATH: Your Honor, for point of clarification in terms of
supervision upon his release from a practical standpoint what would work
much better would be for the Court to impose a 40 year sentence with ten
suspended so that then it is clear you are still impossing [sic] the identical
sentence but then it is clear there is a suspended portion of the sentence and
that allows the probation office to supervise him with the conditions that
you have imposed.
THE COURT: I am wondering how that will affect the time of his
parole eligibility.
MR. MCGRATH: It doesn’t.
THE COURT: It won’t?
MR. MCGRATH: It is the same.
THE COURT: Okay.
MR. MCGRATH: The effect is the same, just adds a tail at the end.
MR. ASHLEY: I am not sure that is true, Your Honor. If you have
got two sentences running consecutively, you have got to discharge one, at
least one portion of it before the other one kicks in.
THE COURT: I think with the previous ten years consecutive after
the 30 years --
MR. MCGRATH: I understand from Mr. Piskolich [the probation
and parole officer who prepared the presentence investigation report] that
they can parole him from the first sentence to the second sentence and my
understanding is i t works the same, but what this does is give us a
suspended portion so that they know what they are supposed to do and have
the ability to supervise.
THE COURT: Okay. We will do that. So it will be 40 years with
ten suspended. As long as -- I want it understood that as long as that
doesn’t make his parole eligibility sooner. I don’t want his parole
eligibility any sooner than it would be with 40 straight years. Okay.
MR. MCGRATH: That will be fine.
THE COURT: Okay.
¶6 The following day, Judge McCarter entered the written judgment and
commitment, which reflected the original sentence of 30 years for the offense of
mitigated deliberate homicide plus 10 years for use of a dangerous weapon in the
commission of this offense, to be served consecutively and with no portion of either
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sentence suspended. As a result, Garland wrote a letter to Judge McCarter, inquiring as
follows:
I was sentenced on April 22 [sic], 1994 in your court. You sentenced me to
30 years with 10 years suspended + 10 years for use of a weapon to run
consecutively. The court sent the papers to the prison in error and did not
reflect the 10 year suspension you gave me but 40 years non-dangerous. Is
it possible for someone to send me a copy of the sentencing transcript so I
can get the proper credit and correct sentence you gave me.
¶7 In response to this letter, Judge McCarter wrote to Garland explaining:
As you recall, during the sentencing proceeding I discussed with the
attorneys the possibility of suspending a portion of your sentence.
However, upon further discussion with the attorneys, it became apparent
that suspending a portion of the sentence would affect your parole
eligibility. It was my intention that your parole eligibility be based on 40
straight years. Therefore, I ultimately decided to impose a sentence of 30
years for the offense, and 10 years for use of a dangerous weapon, both
sentences to run consecutively. I did not suspend any portion of your
sentence.
Judge McCarter concluded that the sentence contained in the written judgment and
commitment “is accurate,” and Garland did not appeal this determination.
¶8 Almost twelve years later, on August 15, 2006, Garland submitted a Petition to
Modify Defendant’s Written Judgment to Conform to the Courts’ Oral Pronouncement of
Sentence. Garland relied on § 46-18-117, MCA (1993),1 which states: “The court may
correct an erroneous sentence or disposition at any time . . . .” Garland claimed that the
sentence contained in the District Court’s written judgment dated April 27, 1994, was
erroneous because it was different than, and in direct conflict with, the court’s oral
1
The applicable sentencing statutes are those in effect at the time the underlying offense was
committed. State v. Seals, 2007 MT 71, ¶ 8, 336 Mont. 416, ¶ 8, 156 P.3d 15, ¶ 8. As noted
above, Garland’s offense was committed October 22, 1993.
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pronouncement of sentence the previous day. Garland claimed this violated State v.
Lane, 1998 MT 76, 288 Mont. 286, 957 P.2d 9, and its progeny, which hold that the
sentence orally pronounced from the bench, in the defendant’s presence, is the legally
effective sentence and final judgment. See Lane, ¶ 40; State v. Simpson, 1999 MT 259,
¶ 14, 296 Mont. 335, ¶ 14, 989 P.2d 361, ¶ 14; State v. Johnson, 2000 MT 290, ¶ 15, 302
Mont. 265, ¶ 15, 14 P.3d 480, ¶ 15; State v. Lucero, 2004 MT 248, ¶ 24, 323 Mont. 42,
¶ 24, 97 P.3d 1106, ¶ 24.
¶9 The State filed a response to Garland’s petition on August 28, 2006, and on
September 5, 2006, the District Court entered its decision and order denying Garland’s
petition on the ground that the written judgment was not in conflict with the oral
pronouncement. The court explained:
Everyone, including Defendant, understood the discussion at the
sentencing hearing that the ten years would be suspended only if it had no
effect on the time of parole eligibility. Prior to signing the written
judgment, the Court learned that suspending ten years would indeed shorten
the time of Defendant’s parole eligibility. Thus, the written judgment
indicated a straight 40-year sentence.
This appeal followed.
STANDARD OF REVIEW
¶10 We review a criminal sentence for legality only. State v. Eaton, 2004 MT 283,
¶ 11, 323 Mont. 287, ¶ 11, 99 P.3d 661, ¶ 11. A determination of a sentence’s legality is
a question of law and we review such questions de novo. State v. Seals, 2007 MT 71,
¶ 7, 336 Mont. 416, ¶ 7, 156 P.3d 15, ¶ 7.
DISCUSSION
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¶11 Does the District Court’s written judgment and commitment conform to the
court’s oral pronouncement of sentence?
¶12 Garland contends that the written judgment, under which he was sentenced on
April 27, 1994, and is currently incarcerated, is invalid as it does not conform to the
District Court’s oral pronouncement of sentence. Citing Lane, ¶ 40, Garland argues that
the sentence orally pronounced from the bench in the presence of the defendant is the
legally effective sentence and valid, final judgment. Garland claims that while his
sentence at the April 26, 1994 hearing was pronounced as 40 years with 10 years
suspended, the written judgment reflects a sentence of 30 years plus 10 years to be served
consecutively and with no portion of either sentence suspended. Garland asserts,
therefore, that the District Court erred in denying his petition and that we should vacate
his sentence and remand the case for resentencing to reflect what Garland claims was the
orally pronounced (and legally effective) sentence of 40 years with 10 years suspended.
¶13 We note that at the time Garland was sentenced, our cases held that the oral
pronouncement of sentence was not the final judgment and the court could change the
sentence prior to entry of the written judgment. See e.g. State v. Enfinger, 222 Mont.
438, 444, 722 P.2d 1170, 1174 (1986); State v. Wirtala, 231 Mont. 264, 270, 752 P.2d
177, 181 (1988). Garland, however, relies on Lane, a case decided nearly four years after
his conviction and sentencing, for the proposition that the oral pronouncement of
sentence is the legally effective sentence. Garland apparently assumes that Lane applies
retroactively to his sentence. We need not decide that question, however, because we
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conclude that Garland’s assertion that the oral and written sentences conflict is factually
incorrect.
¶14 As discussed above, Judge McCarter initially imposed a sentence of 30 years for
mitigated deliberate homicide plus 10 years for use of a dangerous weapon at the April
26, 1994 sentencing hearing. She did not say that any portion of this sentence was to be
suspended. The county attorney then requested that the court instead impose a 40-year
sentence with 10 years of that suspended. The court agreed to do so but only “as long as
that doesn’t make [Garland’s] parole eligibility sooner.” This contingency was stated
explicitly and in Garland’s presence.
¶15 As it turned out, Judge McCarter subsequently determined, “upon further
discussion with the attorneys,” that suspending a portion of Garland’s sentence would, in
fact, make his parole eligibility sooner. Therefore, her written judgment reflects the
original sentence pronounced at the hearing—30 years for mitigated deliberate homicide
plus 10 years for use of a dangerous weapon in the commission of an offense, to be
served consecutively and with no portion of either sentence suspended. Simply stated,
the contingency was not satisfied and, thus, the original sentence remained effective. The
written judgment accurately reflects this fact. Accordingly, we conclude that the District
Court’s written judgment and commitment conforms to the court’s oral pronouncement
of sentence.
CONCLUSION
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¶16 We hold that the District Court did not err in refusing to grant Garland’s Petition
to Modify Defendant’s Written Judgment to Conform to the Courts’ Oral Pronouncement
of Sentence.
¶17 Affirmed.
/S/ JAMES C. NELSON
We Concur:
/S/ KARLA M. GRAY
/S/ JIM RICE
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
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