                                           No. 02-158

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2003 MT 32N


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

LANCE JENSEN BARKER,

              Defendant and Appellant.




APPEAL FROM:         District Court of the Eleventh Judicial District,
                     In and for the County of Flathead, Cause No. DV-2001-576B
                     Honorable Katherine R. Curtis, Judge Presiding


COUNSEL OF RECORD:

              For Appellant:

                     Lance Jensen Barker, pro se, Helena, Montana

              For Respondent:

                     Honorable Mike McGrath, Attorney General; C. Mark Fowler,
                     Assistant Attorney General, Helena, Montana

                     Thomas Esch, County Attorney; Richard M. Hickel,
                     Deputy County Attorney, Kalispell, Montana



                                                   Submitted on Briefs: July 18, 2002

                                                              Decided: February 25, 2003

Filed:

                     __________________________________________
                                       Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent. It shall be filed as

a public document with the Clerk of the Supreme Court and shall be reported by case title,

Supreme Court cause number and result to the State Reporter Publishing Company and to

West Group in the quarterly table of noncitable cases issued by this Court.

¶2     Lance Jensen Barker petitioned the Eleventh Judicial District Court, Flathead County,

for postconviction relief from a criminal judgment based on an inconsistency between the

oral pronouncement of sentence and the written judgment and sentence. The District Court

denied the petition for postconviction relief, and Barker appeals. We affirm.

¶3     We restate the issue as whether the sentencing court’s use of the term “in aggrava-

tion” in its written judgment violates sentencing statutes and creates an unlawful inconsis-

tency with the sentence orally imposed.

¶4     Barker pled guilty to theft and forgery and was sentenced to five years in prison. In

its written judgment, the court referred to the sentencing hearing as “a hearing in aggravation

and mitigation of sentence.” The court further wrote:

               In imposing this sentence, the Court finds in aggravation that the
       Defendant has four prior felonies and that he has shown no remorse for the
       thefts, has been non-compliant on probation, has previously been incarcerated
       in Montana State Prison and he is still not successful in addressing his
       chemical dependency issues and denies that he has a problem, continues to use
       alcohol, and has not complied with treatment required for chemical depend-
       ency treatment.

(Emphasis added.)


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¶5     Barker filed a pro se petition for postconviction relief on several grounds relating to

the court’s use in the written judgment of the words “in aggravation,” pointing out that the

court had not used those words at oral imposition of sentence. The District Court dismissed

Barker’s petition as a matter of law for failure to state a claim for relief. We review the

denial of postconviction relief to determine whether the district court’s findings are clearly

erroneous and whether its conclusions of law are correct. State v. Hanson, 1999 MT 226,

¶ 9, 296 Mont. 82, ¶ 9, 988 P.2d 299, ¶ 9.

¶6     Barker contends the District Court’s use of the words “in aggravation” in the written

judgment was erroneous in several respects. He contends he was sentenced unlawfully under

§ 46-18-303, MCA; that the written judgment does not conform to the sentence orally

imposed in violation of State v. Lane, 1998 MT 76, ¶ 48, 288 Mont. 286, ¶ 48, 957 P.2d 9,

¶ 48; and that he was entitled to be sentenced pursuant to §§ 46-18-201 and -225, MCA.

¶7     Section 46-18-303, MCA, describes aggravating circumstances in a death penalty

case. That statute is inapplicable here, where the death penalty was not a sentencing option.

Therefore, Barker’s declaration that the “aggravating” circumstances found by the District

Court in his case are not aggravating factors enumerated in § 46-18-303, MCA, is of no

consequence. Barker has not–nor could he have–established that the District Court invoked

the death penalty procedures set forth in § 46-18-303, MCA, merely by using the words “in

aggravation” in its written judgment. Moreover, factors “in aggravation” also are properly

considered in sentencing in non-capital criminal cases. See § 46-18-101(3)(d), MCA.




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¶8     Barker next asks “how much difference must exist?” before an oral and written

sentence conflict. He contends the District Court’s written findings “in aggravation” conflict

with his sentence as pronounced from the bench, in violation of Lane.

¶9     In State v. Johnson, 2000 MT 290, 302 Mont. 265, 14 P.3d 480, we discussed

whether any portion of a written judgment that fails to conform or in some manner conflicts

with an oral sentence renders the written judgment unlawful because of the inconsistency.

After reviewing the development of Montana’s case authority on this issue, including Lane,

we concluded that, to answer this question, we needed to determine two things: first,

whether the defendant was afforded the opportunity to respond to the allegedly inconsistent

matter in the written judgment upon sufficient notice at sentencing; and, second, whether that

portion of the written judgment substantively increased either the defendant’s loss of liberty

or his sacrifice of property. Johnson, ¶ 24.

¶10    Barker merely argues semantics by taking the position that the District Court’s use

of the words “in aggravation” in the written sentence implied additional factfinding or

different reasons for the sentence than those relied upon at the oral sentencing, or that the

factors cited were somehow impermissibly used against him as “aggravating.” The factors

to which the District Court referred as “in aggravation” in its written judgment were each

noted by the court at the sentencing hearing, and Barker had an opportunity to respond to

them at that time, as required under the first Johnson factor. As to the second Johnson

factor, Barker’s sentence in the written judgment precisely reflects the sentence orally

imposed. The court’s use of the words “in aggravation” in the written order but not in the


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sentence orally imposed simply does not create a substantive difference between the final

judgment and the court’s oral pronouncement of sentence.

¶11    Finally, Barker suggests that the District Court’s consideration of circumstances “in

aggravation” somehow interfered with its duty to impose sentence pursuant to § 46-18-201,

MCA, and to sentence him as a nonviolent felony offender pursuant to § 46-18-225, MCA.

He has neither identified nor established any specific failure by the court to meet the

requirements of these statutes. We will not consider unsupported arguments and are under

no obligation to locate authorities or formulate arguments for a party in support of positions

taken on appeal. See Rule 23(a)(4), M.R.App.P.; State v. Rodarte, 2002 MT 317, ¶ 15, 313

Mont. 131, ¶ 15, 60 P.3d 983, ¶ 15.

¶12    Affirmed.


                                                         /S/ JIM RICE


We concur:


/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER




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