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                                                               No. 00-763

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                              2001 MT 241


                                                      STATE OF MONTANA,

                                                      Plaintiff and Respondent,

                                                                      v.

                                                        FREDERICK LAMB,

                                                     Defendant and Appellant.

                         APPEAL FROM: District Court of the Thirteenth Judicial District,

                                             In and for the County of Yellowstone,

                                   Honorable Maurice R. Colberg, Jr., Judge Presiding

                                                     COUNSEL OF RECORD:

                                                             For Appellant:

                               Kevin Gillen, Gillen Law Office, P.C., Billings, Montana

                                                           For Respondents:

                            Honorable Mike McGrath, Attorney General; Jennifer Anders,

                                       Assistant Attorney General, Helena, Montana

                        Dennis Paxinos, County Attorney; Daniel L. Schwarz, Chief Deputy

                                              County Attorney, Billings, Montana

                     Trudy Flammand, Public Health and Human Services, Helena, Montana

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                                                Submitted on Briefs: May 17, 2001
                                                   Decided: December 4, 2001

                                                                    Filed:

                                    __________________________________________

                                                                     Clerk



Justice W. William Leaphart delivered the Opinion of the Court.

¶1 Upon petition for review of sentence filed by the Department of Public Health and
Human Services, the Thirteenth Judicial District Court, Yellowstone County, ordered
Frederick J. Lamb transferred from Montana State Hospital to the Montana State Prison.
Lamb appeals. We affirm.

¶2 Lamb raises the following issues on appeal:

¶3 1. Did the District Court impose an illegal sentence when it transferred Lamb from the
State Hospital to the Montana State Prison?

¶4 2. Did the District Court err by not diverting Lamb to community based supervision?

                              FACTUAL AND PROCEDURAL BACKGROUND

¶5 In 1994, the State charged Lamb by information in the Thirteenth Judicial District
Court, Yellowstone County, with the felony offenses of attempted aggravated assault or,
in the alternative, criminal endangerment, and possession of a destructive device. The
charges stemmed from Lamb leaving a bomb on the doorstep of B. R. Buckingham's
residence and calling the Billings Police Department the following day to say he believed
he had done so. Lamb ultimately pled guilty to the charged offenses and signed an
acknowledgment of waiver of rights which indicated that the guilty pleas were in
exchange for the State's recommendation of a 20-year total sentence, with sentencing to
proceed pursuant to § 46-14-312, MCA (1993).

¶6 After accepting the guilty pleas, the District Court granted Lamb's motion requesting a

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psychological evaluation prior to sentencing. On the basis of the evaluation, the District
Court determined that Lamb suffered from a mental disease or defect at the time of the
offenses. The court ordered Lamb "committed to the Director of the Department of
Corrections pursuant to Section 46-14-312(2), Montana Code Annotated to be placed in an
appropriate institution which the Court recommends as the Montana State Hospital, Galen
Campus, Warm Springs, Montana, for custody, care and treatment" for the total period of
20 years thereafter specified.

¶7 Lamb was admitted to the Montana State Hospital in August, 1995. He was discharged
from the State Hospital and transferred to the Montana State Prison (MSP) in February,
1996, when State Hospital doctors determined that his placement at the State Hospital had
been inappropriate and that he was in need of correctional placement. Lamb was
subsequently transferred to correctional institutions in Texas and Tennessee.

¶8 In 1998, Lamb filed a pro se petition for postconviction relief with this Court. We
deemed the petition to be a writ of habeas corpus and granted the writ, ordering Lamb
returned to the State Hospital. We concluded that Lamb's transfer from the State Hospital
to MSP did not follow the procedure required by § 46-14-312(3), MCA, and that, as a
result, he was improperly discharged from the State Hospital and unlawfully imprisoned in
the Tennessee facility.

¶9 Lamb was returned to the State Hospital in May, 1998. In September, 1998, the
Department of Public Health and Human Services (the Department) filed a petition for
review of sentence, requesting that Lamb be considered for conditional release to a
community placement. The court denied the request, and the prior sentencing order
remained in effect.

¶10 In October, 1999, the Department again filed a petition for review of sentence, this
time stating that Lamb showed no evidence of a mental disease or defect and
recommending that he be transferred to the correctional system as a more appropriate
placement. The court held a hearing on the matter and ultimately ordered that Lamb be
transferred to MSP or the Department of Corrections for other appropriate institutional
placement for the remainder of his sentence. Lamb appeals from this order.

                                                             DISCUSSION

¶11 Did the District Court impose an illegal sentence when it transferred Lamb from the


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State Hospital to the Montana State Prison?

¶12 Lamb argues that because his original sentence, pursuant to a binding plea agreement,
was for a commitment to the State Hospital and not MSP, any modification of that
sentence is illegal. The State points out that the plain language of § 46-14-312, MCA,
authorizes the district court to transfer a defendant previously committed to the State
Hospital to a correctional facility if certain statutory criteria are met.

¶13 The Acknowledgment of Waiver of Rights form that Lamb signed in 1995 stated, in
relevant part,

        11. I understand that in exchange for a plea of guilty to the charges the State will
        recommend the following: the sentence will be under 46-14-312.

        a. 15 years plus a consecutive 5 years for the use of a weapon on Count I.

        b. 10 years on Count III to run concurrent to Count I.

        c. The State will recommend that the defendant be designated a dangerous offender.

        12. This is a 1(b) plea agreement. The defendant understands that should the Court
        sentence him to more than 20 years the defendant will be entitled to withdraw his
        plea of guilty. If the Court designates the defendant a dangerous offender, the
        defendant will not be allowed to withdraw his plea.

¶14 Section 46-14-312, MCA (1993), provides:

        (1) If the court finds that the defendant at the time of the commission of the offense
        of which the defendant was convicted did not suffer from a mental disease or defect
        as described in 46-14-311, the court shall sentence the defendant as provided in
        Title 46, chapter 18.

        (2) If the court finds that the defendant at the time of the commission of the offense
        suffered from a mental disease or defect as described in 46-14-311, any mandatory
        minimum sentence prescribed by law for the offense need not apply and the court
        shall sentence the defendant to be committed to the custody of the director of the
        department of corrections and human services to be placed in an appropriate
        institution for custody, care, and treatment for a definite period of time not to exceed
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        the maximum term of imprisonment that could be imposed under subsection (1).
        The authority of the court with regard to sentencing is the same as authorized in
        Title 46, chapter 18, if the treatment of the individual and the protection of the
        public are provided for.

        (3) Either the director or a defendant whose sentence has been imposed under
        subsection (2) may petition the sentencing court for review of the sentence if the
        professional person certifies that:

                  (a) the defendant no longer suffers from a mental disease or defect;

                  (b) the defendant's mental disease or defect no longer renders the defendant
                  unable to appreciate the criminality of the defendant's conduct or to conform
                  the defendant's conduct to the requirements of law;

                  (c) the defendant suffers from a mental disease or defect but is not a danger to
                  the defendant or others; or

                  (d) the defendant suffers from a mental disease or defect that makes the
                  defendant a danger to the defendant or others, but:

                            (i) there is no treatment available for the mental disease or defect;

                            (ii) the defendant refuses to cooperate with treatment; or

                            (iii) the defendant will no longer benefit from active inpatient treatment
                            for the mental disease or defect.

        (4) The sentencing court may make any order not inconsistent with its original
        sentencing authority except that the length of confinement or supervision must be
        equal to that of the original sentence. The professional person shall review the
        defendant's status each year.



¶15 Pursuant to the plea agreement, Lamb agreed that his sentence would be made under §
46-14-312, MCA. That statute specifically provides a procedure whereby the director or
the defendant may petition the court for review of the sentence if a professional person

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certifies that the defendant no longer suffers from a mental disease or defect. The petition
filed by the Department in October, 1999, met these procedural requirements. Once the
petition is filed, the sentencing court is free to "make any order not inconsistent with its
original sentencing authority." Section 46-14-312(4), MCA.

¶16 The District Court's order here granted the petition to review and found that "the only
evidence was that defendant is not currently suffering from a mental disease or defect
allowing placement in the Montana State Hospital. He should therefore be transferred to
the Montana State Prison . . . for the remainder of the term of his sentence specified in the
amended judgment and commitment signed October 2, 1999." This disposition is
consistent with the court's authority under § 46-14-312, MCA. We hold that the District
Court did not impose an illegal sentence when it transferred Lamb from the State Hospital
to MSP.

                                                                   Issue 2

¶17 Did the District Court err by not diverting Lamb to community based supervision?

¶18 Lamb argues that he is entitled to know precisely why the District Court chose to
transfer him to MSP rather than release him to community based supervision. He argues
that the court found that there had been no change in circumstances since the Department
filed its first petition, and because the court had not changed his placement after the first
petition, the court could not do so after the Department's second petition without stating
reasons for the transfer.

¶19 Although both petitions filed by the Department were petitions for review of sentence,
they were otherwise quite different. In the first petition filed in 1998, the Department
specifically requested that Lamb's sentence be reviewed and that he be considered for
conditional release to a community placement. The District Court denied that petition, and
that petition is not before the Court at this time. In the second petition, which is before this
Court on appeal, the Department recommended that Lamb's sentence be reviewed and that
he be transferred to the correctional system. Although Lamb argued at both hearings that a
portion of his sentence be suspended, the District Court was under no obligation to re-visit
an issue it had decided fourteen months previously in the Department's first petition.

¶20 The District Court is affirmed.



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                                              /S/ W. WILLIAM LEAPHART

                                                              We concur:

                                                       /S/ KARLA M. GRAY

                                                      /S/ JAMES C. NELSON

                                                  /S/ TERRY N. TRIEWEILER

                                                              /S/ JIM RICE




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