                                     NO.     95-042
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                            1995


STATE OF MONTANA,
          Plaintiff         and Respondent,




APPEAL FROM:    District  Court of the Twenty-First                   Judicial        District,
                In and for the County of Ravalli,
                The Honorable   Jeffrey H. Langton,                    Judge      presiding.


COUNSEL OF RECORD:
          For    Appellant:
                      William   F. Hooks,       State    Appellate        Defender,
                      Helena,   Montana

          For    Respondent:
                      Hon. Joseph P. Mazurek,            Attorney      General;
                      Patricia  Jordan, Ass't           Attorney      General,        Helena,
                      Montana
                      George Corn,    Ravalli       County    Attorney,          Hamilton,
                      Montana


                                      Submitted         on Briefs:         August       17,       1995
                                                           Decided:         October        24,      1995
Filed:
Justice      W. William              Leaphart      delivered        the Opinion              of the Court.

         Michael      Ray Nelson              (Nelson)     appeals         from the judgment                  entered
by the Twenty-First                  Judicial       District       Court,         Ravalli         County,       on his
guilty      plea     to the offenses               of felony        assault,             criminal          mischief,
and resisting              arrest.       We affirm.
         On September              7, 1994, Nelson             was charged           by information                 with
three      counts        of felony        assault,        one count         of misdemeanor                   assault,
one      count      of      misdemeanor             resisting         arrest          and         one      count        of
misdemeanor          criminal           mischief.            Two weeks later,                    Nelson       entered
pleas     of not guilty              to all     charges.         At the arraignment,                      the county
attorney         presented           a psychological             evaluation          of Nelson.               Defense
counsel         did not object            to the admission             of the evaluation.
         On October           4, 1994,          Nelson     entered         into      a plea         agreement           in
which      the     State          dismissed       two counts          of     felony          assault          and one
count of misdemeanor                  assault.         Nelson then pled guilty                       to one count
of felony         assault          and the two misdemeanors                  of resisting                 arrest     and
criminal         mischief.
           On October          4, 1994, Nelson signed                 a Plea of Guilty                    and Waiver
of     Rights.        Nelson's          Plea of Guilty              and Waiver              of     Rights       stated
that      Nelson     voluntarily              plead    guilty,       explained            the rights           being
waived,         outlined          the sufficiency          of his attorney's                     representation,
detailed         in his       own words the              factual     basis         for      his     guilty         plea,
and asserted               that      he was not           under      the      influence              of     drugs       or
alcohol.
          The next         day,      during      the court's         interrogation                 at the change
of       plea       hearing,            the       District           Court          confirmed                Nelson's
                                                           2
understanding                        of     the         nature         and potential                  penalties           for     each of the

charges                 against           him.           The court             confirmed              Nelson's          understanding                   of
the      rights               he waived                 in    entering             pleas        of guilty            and that           he had no

right              to     withdraw                 his        guilty           pleas.            The         court      determined                that

Nelson              had not            been         threatened                 or       forced        into      pleading          guilty            and

that      he had not                      consumed              any drugs               or alcohol            that      could         affect        his

judgment                  or      ability                to        communicate.                      Nelson          admitted           that        his

counsel                 was competent                        and had advised                   him well.              Nelson      explained,

in      his         own words,                    the        facts      upon           which     the        charges       and his              guilty

pleas          were            based.
              At        the       change            of        plea       hearing,               the     court          inquired           whether

Nelson             understood                 that           the     county         attorney           was not          recommending                any

particular                     sentence,                 and that              regardless              of      the     actual          sentence,

Nelson             would          have no right                      to withdraw               his     pleas.          Nelson          responded

that          he understood.                                 The     court          accepted            the      plea         agreement             and

found          Nelson                guilty             as charged.                     Defense         counsel           then         moved        the

court          to        release            Nelson             on his         own recognizance                       (hereinafter                "OR")

pending                 sentencing.                      While         this         release           was not          part      of     the       plea

agreement,                     the     State            had no objection                       to the motion.                 After          a brief

discussion                     regarding                 Nelson's             sentencing              date       and bail,             the      court

declined                  to         release                 Nelson           on       OR and          the       following               colloquy

occurred:

              THE COURT:                      .    . . .             Anything            else?

              THE DEFENDANT:      Yes, Your Honor.          I'm not going      to do
              this.   This wasn't     my agreement.       This understanding      --
              I'm not ready to plead yet.         I'd like    you to send me over
              to Warm Springs,     sir,   because     I can't    take any more of
              it.   I honest   to God can't.       They told    me that  they'd   do
              an OR.    I thought    this  was part     of the plea agreement.

                                                                                   3
           That's          not        happening           here,           sir.
           MR. STENERSON:    Your Honor,    for the record,    I did                                                                        not
           tell  him it was part of the plea agreement.       I told                                                                        him
           if he took this   plea agreement    that  Mr. Corn would                                                                         not
           oppose an OR and that was still      up to the Court.

           THE DEFENDANT:                      Your     Honor,            in regard                   to the             guilty          pleas
           __

           THE COURT: Mr.                     Nelson,            that's             already            a done               deal.           YOU
           plead guilty.

           THE DEFENDANT:     Your Honor, I can't   take                                                                 any more of
           this.   You have to send me to Warm Springs.                                                                    This isn't
           the deal that   --

           THE COURT:                    Silence,                Mr.      Nelson,                or      I        will          have        you
           removed.

           THE DEFENDANT:                       Your      Honor,              can you do something                                  or      --

           THE COURT:                   I can have               you      removed.                    Sheriff?

           Nelson         raises         three         issues           on appeal.                     First,             did      the      District
Court        fail         to       adequately                advise              Nelson           of          the          consequences                  of

pleading             guilty             and,      as         a     result,                 were         his              pleas           knowingly,

intelligently                  and voluntarily                         entered.                  Second,                 did       the     District
Court       err      in     considering                the        mental            evaluation                    report,           prepared             at

the     direction                of     the      State,            without             counsel                present               and      without

Nelson          having            been         advised             of         his      rights.                       Finally,               did         the

District            Court        fail      to     consider              alternatives                         to     imprisonment                  for         a

nonviolent                felony         offense             pursuant                 to      55 46-18-225,                          and         46-18-

201(10),            MCA, before                 sentencing                Nelson            to        a term              of      imprisonment.



1.    Did the District        Court                                fail    to adequately   advise                                         Nelson  of
the consequences    of pleading                                     guilty    and, as a result,                                            were his
pleas knowingly,   intelligently                                      and voluntarily    entered?
           Nelson         argues         that      he should                  have been allowed                                to withdraw              his


                                                                          4
guilty          pleas               because              the        District               Court           did        not         adequately                     advise
him       of         the            consequences                      of         pleading               guilty,                   specifically                        the
possibility                     that          he could                be designated                        a dangerous                       offender               thus

restricting                     his      eligibility                       for        parole.

          The            principles                  governing                   the         entry         and withdrawal                              of        guilty

pleas          are        set         forth         in     both            case        law        and statutes.                         State               v.     Enoch

(1994),              269 Mont.                 8,        11,         887 P.2d              175,         177.               District              courts             must

meet       the           statutory                  requirements                       found          in     55 46-12-210                             and        46-16-

105(l),             MCA, before                     accepting                a guilty               plea.              Section               46-16-105(2),

MCA, regarding                         the       withdrawal                      of    a guilty                  plea,            provides:

                 At any time before  or after    judgment      the court   may,
          for good cause shown, permit        the plea of guilty         to be
          withdrawn    and a plea of not guilty      substituted.

          This                 Court          has         consistently                           stated               that         no           set         rule          or
standard             exists             under            which          a district                  court             addresses                 a request                 to

withdraw                 a guilty              plea,            and that                  each        case            must         be considered                          in

light          of        its        unique          record.                 Enoch , 887 P.2d                           at      177;          State           v.     Radi

(1991),              250 Mont.                 155,            158-59,            818 P.Zd                 1203,             1206.              The grant                 or
denial              of          a     motion             to          withdraw                a      guilty                 plea         is        within              the

discretion                     of      the      district                   court.                Radi
                                                                                                 -I              818         P.2d          at         1206.           Our

standard                 in         reviewing                 a district                     court's              denial              of         a motion                 to

withdraw                 a guilty               plea            is     whether                the       district                   court              abused          its

discretion.                         Enoch,          887 P.2d                at        177;        State          v.        Reynolds               (19921,             253

Mont.          386,            390-91,           833 P.2d                  153,           155.

          When pleading                          guilty               to     a criminal                    charge             a defendant                        waives

numerous                 constitutionally                             based           rights          and protections.                                 -,
                                                                                                                                                       Radi           818

P.2d      at         1206.             In      light           of      the        significance                        of     the      rights                that      are


                                                                                      5
waived upon a plea of guilty,                         it     is well-settled               that     a guilty         plea
must be a voluntary,                     knowing,           and intelligent                 choice        among the
alternative             courses         of      action       open         to     the      defendant.               North
Carolina         v.    Alford         (1970),      400 U.S.          23, 91 S.Ct.                160,    27 L.Ed.2d
162; w,               818 P.2d at 1206.
         This      Court      balances        three        factors        when considering                a criminal
defendant's            attempt        to withdraw           a guilty           plea:      (1) the adequacy of
the      court's            interrogation           at       the        time      the      plea         was     entered
regarding          the defendant's              understanding              of the consequences                    of the
plea;      (2)        the     promptness          with       which        the     defendant             attempts           to
withdraw         the plea;           and (3) the fact              that        the plea was the result                     of
a plea      bargain           in which        the guilty           plea        was given         in exchange          for
dismissal          of another          charge.             Enoch , 887 P.2d at 177.
         In the present               case,     we need not engage in an analysis                                 of the
above three           factors        because,       although            Nelson sought             to withdraw         his
pleas     due to his             misunderstanding                  as to release             on recognizance,
Nelson did not attack                   the voluntary              nature        of his pleas.                See State
v.    Mason        (19921,       253 Mont.          419,         424,     833 P.2d          1058,        1061.        The
record      reveals           that     Nelson       did      not     move to            withdraw         his     guilty
pleas     on the grounds               that      the District             Court         failed     to adequately
advise      him that            he could         be designated                 a dangerous          offender              for
parole      purposes.             Rather,        Nelson          objected         solely         to the        District
Court's         decision         to set bail             instead        of releasing              him on his          own
recognizance            prior        to sentencing.
         Release        on his        own recognizance                  was not included                 in Nelson's
plea agreement               and, in response               to Nelson's           objection,            his attorney

                                                             6
specifically                   denied           that         release                  on         OR was               part             of       the        plea

agreement.                   Thus,      Nelson         can not                argue              that         his         objection                 to     bail

instead              of     OR was       related             to       the        voluntary                    nature              of         his      guilty

pleas       because                OR was       not         a condition                      of        his      plea            agreement.                     In

other       words,            he did          not      plead           guilty               in     order             to      gain            release           on

OR, he pled                 guilty       on the            condition                  that         the        State             drop         two of           the

felony          assault              charges.                In       fact,            Nelson's                     Plea         of         Guilty            and

Waiver          of        Rights      states:          "I     am not             entering                    this         plea         of      guilty          in
order       to get            released          from         jail."              Nor         can he relate                        his          objection

to      being             denied      OR to          the          issue          he         now         raises             that             he was            not

adequately                 advised       that        he could             be designated                         a dangerous                        offender

for     parole             purposes.

          Nelson's             objection             and motion                  to withdraw                        did     not         raise            any of

the      grounds             on which           he now appeals.                              This            Court           does            not      review

issues          which          were      not        preserved                   for         appeal              in        the         court           below.

Sections              46-20-104           and 46-20-701,                         MCA.             We have                 held         that          failure
to     raise          an issue          before         the         district                  court           bars          a defendant                     from

raising              the      issue       on        appeal            under            § 46-20-104,                          MCA.                  State       v.

Arlington                  (1994),      265 Mont.                 127,          151,         875 P.2d                 307,        321.              We hold

that      Nelson's              contemporaneous                       motion           to withdraw                        his      pleas             did      not

raise       a question                as to         the      adequacy                  of        the     court's                 interrogation.

Further,              although          § 46-16-105(2),                          MCA, would                    have          allowed                 a post-

judgment              motion          attacking              the       voluntariness                            of        the         pleas,             no    so
such motion                 was made in              the     District                 Court.                 Thus,          Nelson             is     barred

from      raising             the     issue         of whether                he was advised                          of        the         possibility

and       consequences                   of      being             designated                      a     dangerous                      offender               on


                                                                            7
appeal.
             We hold            that         Nelson           did     not,            either            before         or after             judgment,
move        to     withdraw             his         guilty           pleas             for        lack       of        voluntariness.                  The

District               Court       did         not         abuse           its        discretion                  in      denying             Nelson's

motion            to         withdraw                his          guilty               pleas             based           solely             upon       his

misunderstanding                        as to            being        released                    on his         own recognizance.


2.      Did    the     District        Court    err   in    considering      the  mental
evaluation       report,      prepared     at the direction       of the State   without
counsel     present      and without     Nelson having been first        advised   of his
rights?

            Nelson           argues          that        the       District              Court           erred         in considering                  and

relying           on an emergency                        mental        health                evaluation                report          prepared          in

violation               of      Nelson's                 Fifth         Amendment                    rights.                However,                Nelson
failed           to     object           to        the        admission                 of        the      report          either           when       the

report           was incorporated                          into       the            Presentence                  Investigation                    Report

or     at    the        sentencing                  hearing.                 This            Court         does         not      review            issues

which        were         not     preserved                    for     appeal                in     the      court            below.          Sections

46-20-205              and 46-20-701,                         MCA.          We have                held       that        failure             to    raise

an issue              before           the         district            court            bars            a defendant                  from      raising

the      issue         on appeal              under           5 46-20-104,                     MCA.         Arlinqton,                 075 P.2d          at

321.         Thus,           Nelson           is     barred           from            raising             the      issue         of     the        mental

health           report         on appeal.



3.      Did   the   District    Court   fail                                             to consider      alternatives      to
imprisonment      for a nonviolent    felony                                             offense   pursuant     to 55 46-l&
225, and 46-18-201(10),        MCA, before                                              sentencing    Nelson    to a term of
imprisonment?
            Nelson           qualified                as a nonviolent                             felony         offender.                  He argues

that        Montana             law,          § 46-18-201(10),                           MCA,            requires              the      sentencing

                                                                                 8
court      to      consider           alternatives               to       incarceration               when sentencing
nonviolent             offenders.
          In three         recent          cases in which                 the district                courts        failed        to
consider        alternatives                to incarceration                  for nonviolent              offenders,              we
remanded         for      resentencing.                  State       v.    Pence (Mont.                1995),         902 P.2d

41, 52 St.Rep.              937; State              v. LaMere (Mont.                 1995),           900 P.2d 926, 52
St.Rep.         828; State            v. Stevens            (1993),           259 Mont.          114,     854 P.2d 336.
However,         in each of these                   cases the defendants                     raised           the issue           of
consideration              of alternatives                  to incarceration                 before           the district
court.          In      Pence,        I' Ii1 mmediately               following            the    District             Court's
oral      ruling,         Pence's               counsel      asked         the     judge         to     reconsider               his
sentence,             pointing            out     that     the        court       was required                 to     consider
alternatives              to     incarceration."                     Pence
                                                                     -,            52 St.Rep.              at        939.         In
LaMere, we held that                      the defendant's                 objections          to the sentence                    and
request         for     reconsideration                   were sufficient                to preserve                the issue
for      appeal.          LaMere,           900 P.2d at 928.                     Stevens         also         specifically
raised       the       issue         of    sentencing            alternatives               before         the        district
court.          Stevens,         854 P.2d at 337.
          However,         in the           instant         case,         the    issue      of consideration                      of
alternatives              to     imprisonment               was not             raised      before            the     District
Court.          Nelson         did        not object         to the court's                 failure            to     consider
sentencing             alternatives.                The transcript                of the sentencing                    hearing
reveals         that     Nelson did not object                         to the sentence                 imposed nor did
he request             reconsideration.                   As we stated             earlier,            this         Court    does
not review             issues        which were not preserved                        for      appeal           in the court
below.          Sections         46-20-104               and 46-20-701,             MCA.          We have held               that

                                                                 9
failure               to         raise               an         issue          before            the       district               court         bars         a
defendant                  from       raising               the         issue         on appeal            under           § 46-20-104,             MCA.

Arlincrton,                 875         P.2d          at        321.           Thus,         Nelson            is   barred          from        raising
the       issue            of     consideration                         of      alternatives                   on appeal.

           We note                 that        although                  the       District              Court           enunciated             reasons

for       its        sentence,              it            did     not          specifically                reference              the      statutory

requirement                      that           it         consider                   alternatives                  to      incarcerating                    a

nonviolent                  offender                 or the             criteria             set       forth        in     § 46-18-225,             MCA.
Prior           to    sentencing                     a nonviolent                       felony         offender             to    imprisonment,

the        court            must          examine                 and          take       into         account            the      ten      specific

criteria              set         forth          in        5 46-18-225,                      MCA.

           Section       225 requires         consideration        of such things        as
           where the needs of the offender                   would be best       served.
           These       statutes      do not       provide      the    court   with    any
           discretion.          The legislature       has directed      trial courts     to
           make these considerations              before    any nonviolent     offender
           is incarcerated.

LaMere,              PO0 P.2d              at         928         (emphasis               added).               Explicit,              rather       than

implicit               consideration                             of      the          criteria            makes            for     a      much      more

meaningful                      appellate                   review.                     In       future             cases,          we      strongly

encourage                  district                  courts,              in       imposing             sentence             upon        nonviolent

offenders,                  to      specifically                        recognize                and address                the     criteria           set

forth           in    § 46-18-225,                         MCA.

           Affirmed.




                                                                                   10
We   c




         11
MICHAEL RAY NELSON,                                      )
              Defendant      and Appellant.              ;

        On October 24, 1995, the Opinion of this Court in the above-
entitled     cause was filed.          On November 2, 1995, appellant             Michael
Ray Nelson (Nelson) filed a Petitionfor                  Rehearing or Modification
of Opinion.        Nelson alleges        that this Court's          Opinion of October
24, 1995 was in direct          conflict     with controlling         decisions    of this
Court and that the Court overlooked                 material     facts.     The State of
Montana filed        its objections        to Nelson's     petition      on November 6,
1995.
       After    review of this Court's            opinion     issued on October 24,
1995, and having considered                Nelson's    Petition       for Rehearing       or
Modification        of Opinion      as well      as the State's           Objections      to
Petition      for    Rehearing,      we conclude       that     while     the following
changes are necessary            to clarify      this Opinion in regard to our
previous      opinions    in Lenihan and Hatfield,                the holding       of our
original     opinion still       stands.      Therefore,
        IT IS ORDERED:
        1. The petition       for modification         of opinion is GRANTED.
        2.   Issue 3 of this Court's            October 24, 1995, Opinion             (Slip
Op. pp. 8 through lo),            is hereby withdrawn          and replaced with the
following:

       3. Did the District       Court fail to consider alternatives
       to imprisonment     for a ncnviolent    felony offense pursuant
       to §§ 46-18-225,      and 46-18-201(11)    [formerly  (lo)], MCA,
       before ser?tsncir.g    Xelscr. to a term of imprisonment?

       Nelson    qualified     as a rcnviolent        felony    offender.       He argues
that     Montana         law,      5 46-18-201(11),                       MCA, requires                 the      sentencing
court      to     consider         alternatives                to     incarceration                    when sentencing
nonviolent          offenders.
         In three         recent      cases in which                      the district                courts      failed          to
consider         alternatives             to incarceration                  for nonviolent                offenders,              we
remanded for             resentencing.               State          v. Pence (Mont.                    1995),         902 P.2d
41, 52 St.Rep.                937; State       v. LaMere (Mont.                     19951,            900 P.2d 926, 52
St.Rep.         828; State         v. Stevens             (1993),           259 Mont.            114,     854 P.2d 336.
However,          in     these       cases          the        defendants              raised            the         issue        of
consideration             of alternatives                 to incarceration                   before           the district
court,      or,     as in Stevens,              the State                 conceded       that          the statute            had
not      been      followed.                Stevens,            854         P.2d       at        337.            In      Pence,
tl[ilmmediately               following       the District                  Court's         oral       ruling,         Pence's
counsel         asked the         judge       to reconsider                  his      sentence,            pointing           out
that       the         court       was       required               to       consider                 alternatives                to
incarceration."                  Pence
                                 -r           902 P.2d at 44.                      In LaMere,              we held           that
the      defendant's              objections              to        the      sentence              and        request            for
reconsideration                were sufficient                 to preserve             the issue               for     appeal.
LaMere,         900 P.2d at 928.
         However,         in the          instant      case,          the issue             of        consideration               of
alternatives             to     imprisonment              was not            raised         before         the        District
Court     and the State              did not concede that                          the statute                had not been
followed.              The transcript               of the          sentencing           hearing              reveals        that
Nelson      did not object            to the court's                     failure      to consider                sentencing
alternatives             nor did he request                    reconsideration.
         Nelson         did      request       a deferred                   sentence             at     the      sent3lcir.g
hearing         and he argues                  that        this     request         is        sufficient                to preserve
the issue          for     appeal.                 However,         a request            for      a deferred                   sentence
does not          serve           the         same role             as     an objection                 to         the         sentence
actually         imposed.               Nelson         did not alert                the District                   Court          to the
alleged         failure           to consider                alternatives                to     imprisonment.                         Thus,
the court         was not able to correct                               any deficiency                 in the sentencing
process.
        As we stated               earlier,            this         Court       does not review                        issues         which
were not preserved                      for    appeal             in the court           below.            Sections               46-20-
205 and 46-20-701,                       MCA.          We have held                 that         failure               to     raise      an
issue      before         the district                 court        bars        a defendant             from raising                    the
issue      on appeal              under            § 46-20-104,             MCA.          Arlinston,                   875 P.2d          at
321.
        An exception               to this            general            rule     is found            in the holdings                    of
State      v.    Lenihan           (1979),            184 Mont.            338,     602 P.2d 997 and State                               v.
Hatfield         (1993),          256 Mont.                340,     846 P.2d 1025.                     In those                cases we
held    that      an appellate                     court     may review             any sentence                   imposed             in a
criminal         case,       if     it        is    alleged          that       such sentence                     is        illegal      or
exceeds         statutory           mandates,                even if            no objection                 is        made at          the
time    of sentencing.                    Lenihan,                602 P.2'd at 1000; Hatfield,                                 846 P.2d
at     1029     (emphasis           added).                 While        not      disturbing               the         holdings          of
these      cases,         we find             the instant               case distinguishable.
         In     Lenihan,           the         defendant             pled       guilty           to    burglary                 and his
three-year          sentence             was deferred.                    He appealed              from the sentencing
condition         requiring              him to pay $250 as reimbursement                                     for           his public
d&end*r         15 aEcorney's                  fees.          Lenihan           argued          that       because              Montana

                                                                    3
does not have a recoupment                           statute,         the district                  court's         order      to
reimburse           the county             for     attorney's          fees        was invalid.                 The State
countered,          inter         alia,     that     Lenihan did not object                         to reimbursement
in the district                   court.         This    Court       held:
             Traditionally,      in both civil   and criminal matters,
        this Court has not accepted for review issues which were
        not objected     to at the trial  level.   . . .
               This Court, however, has never specifically          ruled on
        the question      presented    here.     That is,       whether    an
        objection    at the trial    level    is a prerequisite       to the
        challenging    of a sentencing     order on appeal.      This issue
        has been ruled on in other jurisdictions             with varying
        results.    . . .


               It           appears to be the better            rule    to allow  an
        appellate              court   to review      any sentence     imposed in a
        criminal             case, if it is alleged         that such sentence    is
        illegal             or    exceeds   statutory      mandates,     even if  no
        objection             is made at the time       of sentencing.
Lenihan,          602 P.2d            at    1000        (emphasis           added;        citations             omitted).
Because       the      district             court       exceeded           its        statutory          authority             by
requiring         Lenihan           to reimburse              the county         for     attorney's            fees,        this
Court    remanded Lenihan's                        sentence         with     instructions               to vacate            the
condition           of repayment                 of attorney's             fees.         Lenihan,             602    P.2d at
1001.
        In    State          v.     Hatfield,           Hatfield           appealed           his     convictions              of
sale    of    dangerous               drugs       and conspiracy                 to    sell         drugs.          Hatfield
argued       that     the         court     erred        in     imposing         the      following            sentencing
condition:
        Defendant may be required        to serve up _to an additional
        one hundred-eighty      days.         at tile discretion        or tne
        supervising    Probation    Officer.     . .          The Probation
        Officer   has the right   to decide the amou3-l or cl-e to b,e
        served for any infraction,        u;, to t‘r.e entire    o~-~ei-.-.;u:ldred

                                                                4
          eighty       days.               . .
Hatfield,           846 P.2d at 1029.                   This Court noted that                        Hatfield             did not
object        to      the      sentence            at   the       time       it      was entered.                       However,

relying        on the          Lenihan            holding       that         a criminal              sentence              may be
reviewed           on appeal          if     it    is   alleged          to be illegal                or in excess                 of
statutory           mandates,          the Court          addressed               the sentencing                  issue.        The

Court       stated:         "We have long held that                         a district             court     has no power
to      impose         a     sentence             in     the        absence          of       specific                 statutory

authority."             Hatfield,             846 P.2d at 1029.                    Holding          that     the district
court       had exceeded its                 statutory         authority            by delegating                  sentencing
discretion            to a probation                officer         and by imposing                  a condition               that
could       have resulted              in Hatfield             spending           more time           in jail           than the
maximum            sentence           allowed,           the         Court          remanded               the         case       for
resentencing.
          Both       Lenihan          and         Hatfield           involved             situations               where        the

judgment           was void          due to lack             of statutory                authority.                In Lenihan
and Hatfield,                the     district           courts'          sentences                were illegal                or in
excess        of      statutory              authority            because            the          courts          lacked        the
specific           statutory          authority           to impose the sentence.
          Unlike        Lenihan            and Hatfield,               Nelson's             sentence              is     neither
illegal        nor      does it            exceed       statutory            authority.               Sections             46-18-
201(11)       and 46-18-225,                 MCA, do not preclude                        a court       from sentencing
a nonviolent                felony         offender       to prison.                 Section          46-18-225,               MCA,
states:        "Prior        to sentencing              a nonviolent                'felony        offender            to a term
of imprisonment                 .          .I' the court            shall         take    into       account            certain
criteria.               Section            46-18-201(11)               states:             1'If      the         offender          is

                                                                5
subsequently                 sentenced             to the state                       prison         .          .'I the court             shall
state         why alternatives                    to imprisonment                        were not selected.                        Although
these              statutes              require               consideration                         of            alternatives               to
imprisonment,                 such consideration                             would not have necessarily                              changed
the     court's             final        sentence              for           Nelson.             Nelson's            sentence         of ten
years         is     not      in    excess          of        the            maximum statutorily                          authorized          by
§ 45-5-202(3),                    MCA.
         Sections                  46-18-201(11)                         and          46-18-225,                   MCA,         impose        an
affirmative                 duty         upon      the             court            to      take         certain           matters         into
consideration                 in sentencing.                            If     the court            fails           to abide         by this
requirement,                 the     sentence                 is        subject             to     challenge              or objection.
That does not mean, however,                                        that           in the absence of an objection,
the      sentence              is        thereby          illegal.                        The       District              Court,          after
considering                 the     criteria              in            § 46-18-225,                 MCA, and stating                        its
reasons             why alternatives                      to            imprisonment                 were           not        selected       as
required              by      §     46-18-201(11),                            MCA,          could          still          have 'legally
sentenced             Nelson         to ten years                       in prison.                 Thus,           Nelson's        sentence
does not come within                            the exception                       found         in Lenihan              and Hatfield.
Having             failed           to         object              to         the        sentence               or        to      move       for
reconsideration,                         Nelson          is         barred               from       raising               the     issue       of
consideration                 of alternatives                           on appeal.
         We note             that        although              the District                      Court        enunciated             reasons
for     its        sentence,             it     did not             specifically                   reference              the     statutory
requirement                 that          it      consider                   alternatives                  to        incarcerating                 a
nonviolent             offender                or the criteria                       set forth             in § 46-18-225,                 MCA.
Prior         to sentencing                    a nonviolent                       fe1cr.y        offender           to imprisonment,

                                                                              6
the     court     must       examine        and take      into       account       the      ten   specific
criteria        set    forth      in § 46-18-225,             MCA.
        Section     225 requires      consideration     of such things      as
        where the needs of the offender             would be best served.
        These statutes        do not provide         the court    with    any
        discretion.      The legislature     has directed   trial courts to
        make these considerations         before any nonviolent    offender
        is incarcerated.
LaMere,         900 P.2d at 928 (emphasis                 added).            Explicit,       rather    than
implicit         consideration          of     the     criteria            makes    for     a much more
meaningful            appellate        review.           In       future       cases,       we    strongly
encourage         district        courts,      in    imposing         sentence           upon nonviolent
offenders,         to specifically            recognize        and address           the criteria        set
forth      in   § 46-18-225,         MCA.
        Affirmed


        3.  In all other respects,     Nelson's Petition  for Rehearing is
DENIED. Let Remittitur       issue forthwith.
        4.   The Clerk is directed       to mail  copies of this  order to
counsel    of record    for the respective       parties,  West Publishing
Company, State      Reporter    Publishing    Company, and the Honorable
Jeffrey    H.
       DATED
