                                               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 :
