State v. Buffalo ( 1993 )

No. 92-57
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
STATE OF MONTANA,
Plaintiff and Respondent,
JOHN BUFFALO,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
L. Sanford Selvey, 11, Yellowstone County Public
Defender, Billings, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, John
P ~ u ~ s o ~ , Attorney General, Helena, Montana
Ass't
Dennis J. Paxinos, Yellowstone County Attorney,
Billings, Montana
Submitted on Briefs: September 16, 1993
Decided: October 14, 1993
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
John Buffalo appeals from an order of the Thirteenth Judicial
District Court, Yellowstone County, designating him a dangerous
offender. We affirm.
The sole issue on appeal is whether the District Court
adequately articulated its reasons for designating Buffalo a
dangerous offender under 1 46-18-404, MCA.
On October 31, 1991, an information was filed against John
Buffalo (Buffalo) alleging one count of attempted sexual
intercourse without consent and one count of attempted kidnapping,
According to the affidavit filed in support of the information and
the evidence introduced at trial, at approximately 9:35 a.m, on
October 27, 1991, Buffalo attacked G.M. from behind and hit her in
the face with his closed fist. He then carried her between a row
of parked cars, where he threw her to the ground and attempted to
tear her clothes off. A Yellowstone County deputy sheriff observed
the incident by chance and interceded; Buffalo fled the scene.
Buffalo then encountered C.T., who was leaving her car to
attend a church service. Buffalo ordered C.T. into the car and
then shoved her inside. C.T. began to scream and kick at Buffalo.
Deputies in the area saw the altercation, responded, and
apprehended Buffalo after a short chase. Neither victim knew
Buffalo prior to the attacks.
Following a two-day trial, a jury found Buffalo guilty of
attempted sexual intercourse without consent and attempted
kidnapping. A presentence report and psychological examination
2
were obtained for sentencing purposes. On September 3, 1992, the
~istrictCourt sentenced Buffalo to twenty years imprisonment for
attempted sexual intercourse without consent and ten years
imprisonment for attempted kidnapping. The court ordered the
sentences to run concurrently and designated Buffalo a dangerous
offender. Buffalo appeals only the dangerous offender designation
contained in his sentence.
Did the District Court adequately articulate its reasons for
designating Buffalo a dangerous offender under S 46-18-404, MCA?
Under Montana's sentencing provisions, the designation of an
offender as either nondangerous or dangerous is an important factor
in determining parole eligibility. See 5 46-23-201(2), MCA; State
v. Belmarez (1991), 248 Mont. 378, 379, 812 P.2d 341, 342. As a
general rule, a district court must designate an offender
nondangerous if he has no other felony convictions in the preceding
five years and it determines that the offender does not represent
a substantial danger to other persons or society. Section 46-18-
404(1) and (2), MCA. Under § 46-18-404(3), MCA, " [ ; I f the court
determines that an offender is a dangerous offender, it shall make
that determination a part of the sentence imposed and shall state
the determination in the judgment. . . ." Moreover, we require
sentencing courts to articulate the reasons underlying decisions to
designate an offender as "dangerous;" more than a mere recital of
the statutory language is required. State v. Morrison (Mont.
1993), 848 P.2d 514, 517, 50 St-Rep. 270, 272. Belmarez, 812 P.2d
at 342.
In this case, the District Court articulated the following
3
reasons for its sentence and dangerous offender designation:
1. The Court has considered the contents of the
presentence report, as well as the recommendations of
counsel.
2. The Court has considered that a jury, after hearing
the evidence, found the defendant guilty on both Counts,
each of these serious crimes. Although the jury had
trouble with Count 11, the Attempted Kidnapping. [sic]
3 . The Court considered the very nature of these crimes
abhorrent in that the defendant had no prior acquaintance
with the victims, the time of the offenses being early
Sunday morning and the place being relatively deserted at
that hour. The Court knows that both of these totally
innocent victims were terrified and justly so.
4. The Court considered defendant's age and prior
criminal record which includes a Felony conviction in
1987 and a Misdemeanor sexual assault.
5 . The Court has considered the psychological evaluation
and which it agrees [sic] that it and the other records
show a need for alcohol treatment. The Court is
concerned about the defendant's apparent proclivity for
violent sexual activity.
6. While the Court does not believe that the prior
felony conviction in June of 1987 necessarily mandates a
designation of dangerous, certainly the entire criminal
nature and the vicious and serious nature of these
offenses as committed justify such designation.
Relying on Morrison and Belmarez, Buffalo argues that the
reasons given by the District Court are mere variations of the
statutory language of 5 46-18-404, MCA, and, therefore, the court
did not sufficiently set forth its reasons for designating him a
dangerous offender. Belmarez and Morrison lend no support to
Buffalo's argument
In Morrison, the district court stated only that it had
considered the contents of the presentence report and the nature
and seriousness of the offense. Because the record supported a
dangerous offender designation, we remanded the case for entry of
findings to support that conclusion. Morrison, 848 P.2d at 517-18.
In Belmarez, although the district court stated that it had
considered the presentence report and the plea bargain and
concluded that the defendant was a danger to society, it also
stated that the defendant was sincerely remorseful and that he had
no prior criminal record. We determined that the court's findings
did not support its determination that the defendant was a danger
to society; indeed, we stated that the findings just as easily
could have supported a nondangerous designation. Belmarez, 812
P.2d at 343.
Here, the District Court did not merely recite the statutory
language, but made numerous specific findings applying the
statutory factors to the facts of this case. The court detailed
the serious and vicious nature of the crimes and the effect on the
innocent victims, set forth Buffalo's prior criminal history and
explained both the need for alcohol treatment and Buffalo's
apparent proclivity for violent sexual activity. The District
Court's findings are clearly distinguishable from those in Morrison
and Belmarez.
In light of the circumstances of this case, we conclude that
the District Court acted within its discretion and adequately
articulated its reasons for designating Buffalo a dangerous
offender for purposes of parole eligibility.
Af firmed .
Pursuant to Section I Paragraph 3 (c),Montana Supreme Court
1988 Internal Operating Rules, this 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 Montana Law Week, State Reporter and West Publishing Company.
We concur:
October 14, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
L. Sanford Selvey, I1
Yellowstone County Public Defender
2720 3rd Avenue North, Suite 200
Billings, MT 59101
Hon. JOSEPH P. MAZUREK, Attorney General
John Paulson, Assistant
215 N. Sanders, Justice Building
Helena, MT 59620
Dennis James Paxinos
Yellowstone County Attorney
P. 0 . Box 35025
Billings, MT 5910'7
ED SMITH
,