                             NO.    91-130
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1992



STATE OF MONTANA,
               Plaintiff and Appellant,
    -vs-
HARVEY WALTER NIEMI,
               Defendant and Respondent.



APPEAL FROM:   District Court of the Eighth Judicial District,
               In and for the County of Cascade,
               The Honorable Joel G. Roth, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
                Patrick L. Paul, County Attorney; Steven Hudspeth,
                Deputy, Great Falls, Montana

           For Respondent:
                Daniel Donovan, Great Falls, Montana


                            Submitted on Briefs:     September 19, 1991
                                          Decided:   February 19, 1992
Justice Karla M. Gray delivered the Opinion of the Court.
     The State of Montana appeals a judgment of conviction and
sentencing order fromthe Eighth Judicial District, Cascade County,
which    sentenced     Harvey   Walter       Niemi   (Harvey) to    ten   years
imprisonment for attempt         (deliberate homicide) and two years
imprisonment for use        of a dangerous weapon, both              sentences
suspended except for fifteen days already served.                The District
Court further sentenced Harvey to 4000 hours of community service.
We affirm on another ground.
     We rephrase the issues presented on appeal to the following:
        Did   the   District Court err when           it   suspended Harvey's
sentences of        ten years imprisonment for attempt              (deliberate
homicide) and two years imprisonment for use of a dangerous weapon
under 5 5 46-18-201(5) and -221(3), MCA?
        Harvey and Katherine Jean Niemi (Jean) were married on June
10, 1966.       Following their marriage, the couple resided in Great
Falls, Montana.
        Both Harvey and Jean were employed as teachers:            Jean retired
in 1988 and Harvey retired in 1989.            Through the years, Harvey and
Jean generally were viewed as a happily married couple.                    Many
perceived Harvey to be a mild-mannered, non-violent, and kind
person.       Prior to January 1990, Harvey's criminal record consisted
of one minor traffic violation.



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     On January 9, 1990, Harvey and Jean began a normal day at
home.     Following a noon-time meal, Harvey told Jean that he was
going to a local store to purchase some remodeling supplies.
However, Harvey did not leave the home.      He went to the basement,
changed his clothing, put on an old pair of eyeglasses and a pair
of panty hose over his head, and placed rubber gloves on his hands.
He then waited for Jean to enter the basement.     When Jean entered
the basement to use a bathroom, Harvey stabbed her several times
with a knife, wounding her in the head, chest, stomach, and hand.
Following the stabbing, Harvey expressed remorse and said he could
not understand how he could have committed such an offense.       Jean
recovered from the stab wounds.
        On January 23, 1990, the State charged Harvey by information
with one count of attempt (deliberate homicide).        Harvey pled not
guilty to this charge on February 14, 1990. A jury trial was held
on November 13 to November 20, 1990.           At the trial, Harvey
testified that for years he had repressed anger concerning Jean.
He further testified that at the time of the stabbing, he felt he
was not in his body, but rather, was above and behind his body,
watching     what   was   happening.   Dr.    William    Stratford,   a
psychiatrist, testified that at the time of the stabbing, Harvey
experienced a dissociative state of mind.      On November 20, 1990,
the jury found Harvey guilty of the charged offense.



                                   3
     Prior to sentencing, Harvey moved the District Court to find
that 5 46-18-222, MCA, exempted him from the mandatory minimum
sentencing penalties     contained     in   §   45-5-102(2),    MCA,   the
sentencing provision for deliberate homicide, and       § 46-18-221(1),

MCA, a sentencing provision for use of a dangerous weapon.         Harvey
argued that 5 46-18-222(2) and ( 3 ) , MCA, exempted him from the
mandatory minimum sentences because at the time he stabbed Jean 1)
his mental capacity was significantly impaired, and 2) he was
acting under unusual and substantial duress.         At the sentencing
hearing, Harvey abandoned his argument that he was acting under
unusual and substantial duress at the time he stabbed Jean but
maintained that his mental capacity was significantly impaired.
     Following oral argument, the District Court               found that
Harvey's mental capacity at the time he stabbed Jean did not exempt
him from the mandatory minimum sentences under 5 5 45-5-102(2) and
46-18-221(1),   MCA.   The District Court sentenced Harvey to ten
years imprisonment for attempt (deliberate homicide) and two years
imprisonment for use       of a dangerous weapon, both          sentences
suspended except for fifteen days already served.          The District
Court further sentenced Harvey to 4000 hours of community service.
     The State filed its notice of appeal regarding Harvey's
sentence on January 15, 1991.     Harvey likewise filed a notice of
appeal on March 8, 1991.    On June 4, 1991, the State filed a brief,
which in part anticipated and discussed issues Harvey could raise

                                   4
in his cross-appeal. On August 6, 1991, Harvey filed a brief that
resembles the format of a cross-appeal. On August 13, 1991, Harvey
moved this Court to stay his appeal pending the outcome of the
State's appeal under Montana Rule of Appellate Procedure 3 .                    On
September 9, 1991, this Court granted Harvey's request for a stay
of his appeal.
      Because Harvey's cross-appeal has been stayed by this Court,
issues raised by both the State and Harvey in their respective
briefs that pertain to Harvey's cross-appeal will not be discussed
herein. Accordingly, we will limit our discussion to the following
issue:
      Did   the District Court err when               it suspended Harvey's
sentences of ten years imprisonment for attempt                         (deliberate
homicide) and two years imprisonment for use of a dangerous weapon
under 5 5 46-18-201(5) and -221(3), MCA?
       The District Court at the sentencing hearing held that
Harvey's mental capacity at the time he stabbed Jean did not exempt
him from mandatory minimum sentencing under            §   46-18-222, MCA.     The
District Court acknowledged, however, that                   it was      a   "close
question" as to whether Harvey's mental capacity was significantly
impaired at the time of the offense under 5 4 6 - 1 8 - 2 2 2 ( 2 ) ,    MCA. The
District Court stated:
      When you look at what happened here, the overall event
      that occurred it is almost incredible and it is difficult
      to believe that anybody in their right mind in full

                                         5
     possession of their mental faculties would have committed
     this offense under these circumstances.            . .
                                                       . And
     although there has been a psychiatric explanation of what
     happened, this dissociative state, the jury did not
     accept that offered evidence in determining guilt of Mr.
     Niemi.    Although the required proof, I think, to
     establish this mental capacity exception, I don't think
     it requires proof beyond a reasonable doubt as do the
     elements of the criminal offense. But, I really question
     whether -- there is certainly some indication, certainly
     some testimony here that the mental capacity of Mr. Niemi
     was impaired at that time when this offense occurred and
     maybe for a short period of time before it occurred when
     he was waiting. But, I find it difficult to accept that
     Mr. Niemi's mental capacity was so significantly impaired
     to justify an exception from mandatory minimum sentence.
     ...
     This is the most unusual criminal case that I have presided
     over in my 14 years on the bench.        It's very bizarre.
     Serious and yet the people that are involved are exemplary
     people and it just borders on mind boggling.
     The District Court further held that incarceration in this
instance would be inappropriate in light of Harvey's stellar
community   service    record,   the     nature   of   the    offense,   the
unlikelihood that Harvey would ever attempt to harm Jean again,
Harvey's remorse, and his lack of a previous criminal record.
Thereafter, the District Court, inter alia, sentenced Harvey to the
mandatory minimum sentence of ten years imprisonment for attempt
(deliberate homicide) under 5 45-5-102(2), MCA, and the mandatory
minimum sentence of two years imprisonment for use of a dangerous
weapon   under   §   46-18-221(1),   MCA;   the   court suspended both
sentences except for fifteen days already served.             The District
Court cited State v. Arbgast (1983), 202 Mont. 220, 656 P.2d 828,

                                     6
as authority for its ability to suspend Harvey's mandatory minimum
sentences.
        The State argues that Arbaast is not applicable to these
facts.     The State further argues that the District Court erred by
suspending the sentences in this case under 5 5 46-18-201(5) and
-221(3), MCA.     Section 46-18-201(5), MCA, provides "[elxcept as
provided in 46-18-222, the imposition or execution of the first 10
years of a sentence of imprisonment imposed under 45-5-102 may not
be deferred or suspended."      Section 46-18-221(3), MCA, provides
that the mandatory minimum sentence for use of a dangerous weapon
"may not be deferred or suspended, except as provided in 46-18-
222."     The State argues that because the District Court held that
§   46-18-222, MCA, did not apply, 5 5 46-18-201(5) and -221(3), MCA,

require the court to sentence Harvey to serve twelve years
imprisonment for attempt      (deliberate homicide) and use of a
dangerous weapon.
        We agree that Arbcrast is not applicable here.   In Arbqast,
suspension of the defendant's sentence was & specifically limited
by statute to one of the exceptions contained in 5 46-18-222, MCA.
Here, both statutes under which Harvey was sentenced expressly
prohibit suspension of the sentence unless 5        46-18-222,   MCA,
applies.
        However, following a careful review of the record, we hold
that the sentences at issue herein can be suspended because

                                  7
Hamey's    mental   capacity   at the time of    the    offense   was
significantly impaired under 5 46-18-222(2), MCA.      Section 46-18-
222(2), MCA, provides in part that a defendant's mandatory minimum
sentence may be suspended if "the defendant's mental capacity, at
the time of the commission of the offense for which he is to be
sentenced, was significantly impaired, althoush not so impaired as
to constitute a defense to the prosecution."     [Emphasis added. 3
Here, the jury did not find that Dr. Stratford's testimony
concerning Harvey's mental state supported a defense to the
offense.   However, 5 46-18-222(2), MCA, still allows a court in
sentencing a defendant to suspend mandatory minimum sentencing if
it finds the defendant's mental capacity was significantly impaired
but not so impaired as to constitute a defense. We emphasize again
that the District Court stated that the issue of whether Harvey was
significantly impaired was a "close question."      Moreover, we are
persuaded by Dr. Stratford's testimony, which details how Harvey
experienced a dissociative state of mind at the time of the
offense.   We therefore affirm the result of the District Court's
judgment of conviction and sentencing order on the ground that
Harvey is exempt from mandatory minimum sentencing under 5 46-18-
222(2), MCA.




                                  8
We concur:

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                                   February 19, 1992

                             CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:


Hon. Marc Racicot, Attorney General
              , Asst. Atty Gen
Justice Building
Helena, MT 59620

Patrick Paul, Cascade County Attorney
Steven Hudspeth, Deputy County Attorney
Cascade County Courthouse
Great falls, MT 59401

Daniel Donovan
Attorney at Law
P.O. Box 6573
Great Falls, MT 59406

                                               ED SMITH
                                               CLERK OF THE SUPREME COURT
                                               STATE OF MONTANA
