Cavanaugh v. Crist

• Decision Date: 14 August 1980
• Docket Number: No. 80-194,80-194
• Parties: James P. CAVANAUGH and James I. Mesler, Petitioners, v. Roger W. CRIST, Warden, Montana State Prison, Respondent.
• Court: Montana Supreme Court

Page 890

615 P.2d 890

189 Mont. 274

James P. CAVANAUGH and James I. Mesler, Petitioners, v. Roger W. CRIST, Warden, Montana State Prison, Respondent.

No. 80-194.

Supreme Court of Montana.

Submitted July 29, 1980.

Decided Aug. 14, 1980.

James P. Cavanaugh and James I. Mesler, pro se.

Mike Greely, Atty. Gen., Helena, Donald White, County Atty., Bozeman, J. Fred Bourdeau, County Atty., Great Falls, for respondent.

HARRISON, Justice.

This is an original application for a writ of habeas corpus in which petitioners James Cavanaugh and James Mesler jointly challenge the constitutionality of section 46-18-202(2), MCA. That section permits district judges to sentence persons convicted of felonies to imprisonment with no possibility of parole or participation in the prisoner furlough program.

James Cavanaugh received concurrent sentences of one hundred years and twenty years for aggravated kidnapping and aggravated assault. James Mesler was sentenced to ten years for robbery. The district judges imposed the restrictions of section 46-18-202(2), MCA, on both petitioners. Both pleaded guilty to the offenses charged.

The application for habeas corpus relief alleges that section 46-18-202(2), MCA, is unconstitutional on equal protection, due process and vagueness grounds and as an unlawful delegation of legislative authority. Among the numerous contentions raised by petitioners is that their convictions and sentences are invalid. However, the constitutional attack on the statute is not an attack on the underlying convictions. The district judge's decision whether to impose the full restrictions of section 46-18-202(2) occurs subsequent to and does not affect the underlying conviction. Therefore, the issue presented is one of a sentencing statute. If it were to be found unconstitutional, the only appropriate remedy would be to remand for resentencing and not overturn the convictions.

This Court will address only the issue of whether the restrictions on petitioners' parole and prisoner furlough eligibility imposed pursuant to section 46-18-202(2), MCA, are constitutional.

In 1977, the legislature amended section 95-2206, R.C.M.1947, which set out the sentencing options available to a district judge by adding subdivision (3) (b). See Chapter 580, Laws of 1977. That provision, now section 46-18-202(2), MCA, states:

"Whenever the district court imposes a sentence of imprisonment in the state prison for a term exceeding 1 year, the court may also impose the restriction that the defendant be ineligible for parole and participation in the prisoner furlough program while serving his term. If such a restriction is to be imposed, the court shall state the reasons for it in writing. If the court finds that the restriction is necessary for the protection of society, it shall impose the restriction as part of the sentence and the judgment shall contain a statement of the reasons for the restriction." (Emphasis added.)

The clear effect of section 46-18-202(2) is to permit a district judge to close one avenue for escaping the full force of a sentence. This complete restriction on parole and furlough program eligibility is distinct from the partial restriction that follows a determination by the District Court that a defendant is ineligible for designation as a nondangerous offender. See section 46-18-404, MCA. In the latter case, a defendant must serve at least one-half of his full term, less good time, to be eligible for parole. A defendant who is designated a nondangerous offender becomes eligible for parole after serving one-quarter of his full term, less good time. Section 46-23-201, MCA. Unless he is sentenced under section 46-18-202(2), MCA, a defendant may apply to participate in the furlough program after serving at least one-half of the time required to be considered for parole. Section 46-23-411, MCA.

Petitioners contend that section 46-18-202(2) fails to include procedural elements which they allege are required to meet due process standards. The elements presented are: (1) notice that a complete restriction on parole and furlough program eligibility may be imposed as a part of the sentence; (2) a jury trial specifically addressing this matter; and (3) proof beyond a reasonable doubt that the restriction is required.

Petitioners rely on decisions involving sentence enhancement statutes and cite Specht v. Patterson (1967), 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326, as controlling. In Specht the defendant was convicted of "indecent liberties" under a Colorado statute which carried a ten-year maximum sentence. The defendant, however, was sentenced under the state's Sex Offender Act which permitted an indeterminate term of from one day to life. His sentencing followed a separate commitment proceeding conducted pursuant to the act, to determine whether the defendant constitutes a threat of bodily harm to members of the public, or is an habitual offender and mentally ill. The defendant was not given notice or an opportunity to be heard as to that determination and argued that the due process clause was therefore, violated. The Supreme Court agreed.

The Court found in Specht that the Colorado act required the trial court to determine a fact that was not an ingredient of the charged offense and compared the act's proceedings to "those under recidivist statutes where an habitual criminal issue is a 'distinct issue' . . . on which a defendant 'must receive reasonable notice and an opportunity to be heard.' " Specht v. Patterson, 386 U.S. at 610, 87 S.Ct. at 1212. The Court ruled where such commitment proceedings are involved, due process requires the defendant to be present with counsel, to have an opportunity to be heard, to confront witnesses against him, and to present witnesses of his own.

Due process standards are required where a sentence is to be enhanced on the basis of a psychiatric evaluation and past behavior and pursuant to a separate act (as in Specht ). It is not required for section 46-18-202(2), MCA. This statute is not a sentence enhancement statute. The statute does not permit district judges to add any time beyond the statutory maximum for the underlying offense. In this respect, section 46-18-202(2) is fundamentally different from the kinds of statutes examined in the cases petitioners cite. In Specht, for instance, while the underlying offense carried a ten-year maximum sentence, the Sex Offender Act permitted a sentence of from one day to life.

The Montana statute does not permit enhancement. It insures that the length of the penalty enacted by the legislature and imposed by the court is carried out. The restriction on parole and furlough eligibility permitted by section 46-18-202(2) has no existence beyond the term of the sentence imposed for the underlying offense. The Specht -type statute entails a proceeding which is separate from the ordinary sentencing proceeding. As the Supreme Court emphasized in Specht, the Colorado Sex Offender Act "makes one conviction the basis for commencing another proceeding under another Act . . . " 386 U.S. at 608, 87 S.Ct. at 1211.

Section 46-18-202(2), on the other hand, has no such effect. The restriction of parole and furlough program eligibility is "a part of the sentence" by the express terms of the statute and does not involve any proceeding except the ordinary sentencing proceeding. It represents one option, among others, the legislature has made available to district judges in the course of ordinary sentencing. The full restriction on parole and furlough eligibility permitted by section 46-18-202(2) has no existence apart from the sentence imposed for the underlying offense.

Petitioners further contend that section 46-18-202(2) is similar to the Specht -type statute in that the full restriction on parole and furlough program eligibility must be necessary for "the protection of society." They argue this is a fact determination that requires a jury.

District Courts are required to determine whether the full restriction on parole and furlough eligibility is necessary for "the protection of society" when a person is sentenced after conviction. This matter is not an element of determining whether the underlying offense was committed. After conviction, such considerations as to "protect society from the actions of the guilty" is a matter of the ordinary course of sentencing proceedings.

The source of the constitutional doctrine sanctioning the traditional relaxation of trial standards is Williams v. New York (1949), 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337. In Williams the defendant was convicted of murder and then sentenced to death, rather than life imprisonment, largely on the basis of background information contained in a presentence report prepared by probation authorities. He challenged the sentence because he had been given no opportunity to confront and cross-examine the witnesses who supplied the information in the report. The Supreme Court upheld the sentence and approved the trial judge's use of such unchallenged evidence. It relied on a nonadversarial theory of penology in which punishment is individualized to fit the offender and not merely the crime. The sentencing judge should be concerned with obtaining as much information about the defendant as possible, the Court asserted, and most information that courts relied upon in the "intelligent imposition of sentences" would become unavailable if it could be obtained only in open court and subject to cross-examination. Williams, 337 U.S. at 250, 69 S.Ct. at 1084.

The Supreme Court allowed very broad judicial discretion, based on the principle that courts should not be encumbered by the procedural formality required at trial. This remains the rule. The Specht court classified Williams as "a case where at the end of the trial and in the same proceeding the fixing of the penalty for first degree murder was involved." Specht, 386 U.S. at 606-607, 87 S.Ct. at 1210-1211. Here is a case...