                                                                                           January 29 2013


                                          DA 12-0320

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2013 MT 14



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

DAVID KIME,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Eighteenth Judicial District,
                        In and For the County of Gallatin, Cause No. DC 11-161C
                        Honorable John C. Brown, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Jeanne M. Walker, Hagen & Walker, PLLC, Billings, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General; Tammy A. Hinderman,
                        Assistant Attorney General, Helena, Montana

                        Marty Lambert, Gallatin County Attorney; Eric Kitzmiller, Deputy County
                        Attorney, Bozeman, Montana


                                                    Submitted on Briefs: January 3, 2013
                                                               Decided: January 29, 2013



Filed:

                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1      David Kime appeals from his sentence as a persistent felony offender. We affirm in

part and reverse in part.

¶2      Kime presents the following issues for review:

¶3      Issue One: Whether the District Court erred by sentencing Kime as a persistent

felony offender.

¶4      Issue Two: Whether the District Court erred in sentencing Kime to 30 days in jail for

careless driving.

¶5      Issue Three: Whether Kime received ineffective assistance of counsel at sentencing.

                      PROCEDURAL AND FACTUAL BACKGROUND

¶6      In August 2011, the State charged Kime with felony driving under the influence of

alcohol (§§ 61-8-401 and 61-8-731, MCA); careless driving (§ 61-8-302, MCA); and

operating a motor vehicle while a habitual traffic offender (§ 61-11-213, MCA). The

charges arose from a traffic accident in which Kime drove through an intersection and hit

another vehicle. In January 2012, the State filed notice pursuant to § 46-13-108, MCA, that it

intended to seek persistent felony offender status for Kime under § 46-18-501, MCA. A

person designated as a persistent felony offender is subject to sentencing as a persistent

felony offender under § 46-18-502, MCA. The predicate conviction for the State’s persistent

felony offender notice was Kime’s May 2009 conviction for felony DUI.1



1
 In addition to the 2009 felony DUI offense, Kime has a criminal offense history that includes a 1991
conviction for felony kidnapping in Idaho; a 1997 Montana conviction for felony assault for which he was
designated a persistent felony offender; a 2001Montana conviction for felony theft, and numerous convictions
for DUI.

                                                     2
¶7     Kime’s attorney filed a brief objecting to the proposed designation as a persistent

felony offender and the District Court held a hearing on the issue. On February 17, 2012, the

District Court entered its order denying Kime’s objection. The order noted that while

persistent felony offender designation was proper, the District Court would nonetheless

consider alternatives to imprisonment as provided in § 46-18-225, MCA.

¶8     Kime entered a plea agreement under which he pled guilty to the felony DUI charge

and the State dismissed the charge of driving while a habitual traffic offender. The District

Court conducted a bench trial on the careless driving charge, resulting in a conviction. On

March 28, 2012, the District Court sentenced Kime to ten years at Montana State Prison with

no time suspended as a persistent felony offender based upon the felony DUI, and to 30 days

in jail on the careless driving conviction. The District Court gave Kime credit for 246 days

he had already served in jail.

                                 STANDARD OF REVIEW

¶9     This Court reviews a sentence longer than one year to determine whether it is legal.

State v. Garrymore, 2006 MT 245, ¶ 9, 334 Mont. 1, 145 P.3d 946; State v. Bullplume, 2011

MT 40, ¶ 10, 359 Mont. 289, 251 P.3d 114. A sentence is legal if it falls within statutory

parameters. State v. Kotwicki, 2007 MT 17, ¶ 5, 335 Mont. 344, 151 P.3d 982.

¶10    This Court reviews a claim of ineffective assistance of counsel to determine whether

counsel’s performance was deficient and if so whether the defense was prejudiced. Baca v.

State, 2008 MT 371, ¶ 16, 346 Mont. 474, 197 P.3d 948.



                                      DISCUSSION

                                             3
¶11    Issue One: Whether the District Court erred by sentencing Kime as a persistent

felony offender.

¶12    Kime argues that the persistent felony offender statutes conflict with the sentencing

provided for felony DUI; that the persistent felony offender statutes are general while the

DUI sentencing statute is specific; and that therefore the specific DUI statute should be

followed. Kime urges that we overrule State v. Damon, 2005 MT 218, 328 Mont. 276, 119

P.3d 1194, and cases following that decision because it applied a “very simplistic analysis”

to wrongly allow persistent felony offender sentencing of a felony DUI offender. Kime does

not otherwise attack the application of the persistent felony offender statutes to his case.

¶13    A persistent felony offender is an offender who has been convicted of a felony and is

being sentenced for a second felony, if the prior felony conviction happened within five

years. Section 46-18-501, MCA. The prosecution must give notice of its intent to seek

persistent felony offender status and of the prior convictions supporting the designation.

Section 46-13-108(2), MCA. If the defendant objects the court must hold a hearing to

determine “if the allegations in the notice are true.” If so, “the accused must be sentenced as

provided by law.” Section 46-13-108(3) and (4), MCA. A persistent felony offender may be

sentenced to imprisonment for five to 100 years, depending upon the circumstances. Section

46-18-502, MCA. The sentence for a felony DUI is provided in § 61-8-731, MCA, and

consists generally of a term of 13 months to the custody of the Department of Corrections,

followed by a term of not more than five years to the DOC or to prison.

¶14    In decisions following Damon, this Court has clearly established that the intent of the

persistent felony offender statutes is that they “replace the sentence for the underlying

                                              4
felony.” State v. Gunderson, 2010 MT 166, ¶ 54, 357 Mont. 142, 237 P.3d 74 (emphasis in

original); State v. Brooks, 2010 MT 226, ¶ 18, 358 Mont. 51, 243 P.3d 405; State v. Burns,

2011 MT 167, ¶ 46, 361 Mont. 191, 256 P.3d 944. Because the persistent felony offender

sentencing provisions in § 46-18-502, MCA, replace the sentencing provision for the

underlying felony offense, there is no need to resort to rules of statutory construction to

determine which statute applies.

¶15    Where there are several statutory provisions that may apply, the preferred result is to

give effect to all if possible. Section 1-2-101, MCA; Damon, ¶ 39. The very purpose of the

persistent felony offender designation is to conflict with and to supplant the specific

sentencing provisions provided for individual crimes. Damon, ¶ 39. If Kime’s specific

statute-general statute construction argument were adopted, the persistent felony offender

statutes would be effectively nullified since there will always be a conflict with the

sentencing provision for the underlying felony. This result would not apply the statutes to

give effect to them all and would be an absurd result in which the persistent felony offender

statutes would never apply. The Legislature has specifically and particularly described the

situations in which the persistent felony offender designation may be applied (§§ 46-13-108,

46-18-501 and -502, MCA), and DUI offenders are not excluded. Damon, ¶ 36; State v.

Gallagher, 2005 MT 336, ¶ 31, 330 Mont. 65, 125 P.3d 1141 (“a DUI conviction is and

remains a felony which is subject to the persistent felony offender statutes.”).

¶16    The District Court therefore lawfully sentenced Kime to a term of ten years, which is

a lawful sentence within the range provided by § 46-18-502, MCA.



                                              5
¶17    Issue Two: Whether the District Court erred in sentencing Kime to 30 days in jail for

careless driving.

¶18    The State concedes that the District Court exceeded its authority when it imposed a

30-day jail sentence for Kime’s careless driving conviction. The only penalty for careless

driving is a fine between $10 and $100. Sections 61-8-711(2) and -716, MCA. However,

the State notes that because Kime was credited with 246 days of time served at sentencing,

he had already discharged the 30-day careless driving sentence at that time. The State

concludes that there is therefore no effective relief that can be given. Kime argues that since

his 30 days cannot be restored, the careless driving charge should be dismissed.

¶19    Kime does not attack the validity of his conviction for careless driving, but only

claims, correctly, that the jail sentence was unlawful. There is therefore no basis upon which

to void the conviction itself. However, it is possible to correct the sentence, and this Court

has recognized that correcting invalid sentences “protects the integrity of the judicial process

and furthers the express correctional and sentencing policy of the state.” State v. Heafner,

2010 MT 87, ¶ 12, 356 Mont. 128, 231 P.3d 1087. In this case, the proper remedy is to

remand to the District Court with instructions to strike the illegal jail time imposed in the

sentence for careless driving. Heafner, ¶ 11.

¶20    Issue Three: Whether Kime received ineffective assistance of counsel at sentencing.

¶21    A claim of constitutionally-deficient ineffective assistance of counsel requires that

counsel’s performance be deficient and that the deficiency prejudice the defense. Strickland

v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984); Whitlow v. State, 2008 MT 140, 343

Mont. 90, 183 P.3d 861; Baca, ¶ 16. The defendant must show a reasonable probability that

                                               6
but for his attorney’s deficient performance the result of the proceeding would have been

different. State v. Henderson, 2004 MT 173, ¶ 4, 322 Mont. 69, 93 P.3d 1231. The

defendant must show that his attorney was not functioning as the “counsel” guaranteed by

the United States and Montana Constitutions. Review on appeal is highly deferential to the

actions of the attorney, and this Court rarely grants relief if there is “some evidence that the

[attorney’s] decision was strategic.” Henderson, ¶ 5.

¶22    Kime argues that his attorney’s performance at sentencing was deficient because she

had an obligation to urge the District Court to impose a sentence less than the 10 years

suggested by the State, and failed to do so. Kime describes that failure as “per se ineffective

assistance of counsel any way you slice it.” At the same time, Kime concedes that the State

has established that he “wanted no suspended time and would accept whatever term of years

the District Court imposed.” Kime argues that this issue can be decided based upon the

present record.

¶23    The record shows that Kime’s repeated position was that he wanted admission to the

WATCh alcohol rehabilitation program; that he would accept whatever sentence the District

Court imposed; and that above all he wanted no suspended time. At the hearing on Kime’s

change of plea to guilty of DUI in the present case, the District Court advised and Kime

agreed that under the plea agreement the Court could impose whatever sentence it deemed fit

for the DUI, as a persistent felony offender. Kime told the District Court that he wanted to

be sentenced that day without waiting for a new presentence investigation (PSI). Kime said:

“I would be happy with you sentencing me with whatever you would care to do as long as

there’s no suspended time. That the—that would be my only requirement.” Kime also

                                               7
expressed his understanding that the plea agreement contained no guarantee of a specific

sentence, stating to the District Court: “And if you want to give me 15, that’s what he [the

author of the PSI] wanted to give me, but [if] there’s no suspended time included, I’m good.”

¶24    The District Court declined to sentence Kime without a PSI and ordered that one be

prepared. In the PSI Kime was asked to provide his recommendation for the disposition of

his case and stated: “Whatever as long as there is no suspended time. Allow me to go back

to my family in Kentucky. My mom has dementia and is in her 70s. She owns a large

portion of land my brothers & I will inherit, I can live there.” A handwritten letter from

Kime to the District Court attached to the PSI stated: “I know I’m going to MSP. Judge

Brown I ask you sentence me to prison time with none suspended so I will have a chance of

going back to my family in Kentucky.” In Kime’s more recent criminal history his

suspended sentences for various offenses were revoked on a number of occasions and he was

sent to prison as a result.

¶25    Kime and his attorney argued repeatedly in District Court that he needed and wanted

to go to the WATCh alcohol rehabilitation program, and that it represented his best chance of

overcoming his alcoholism. Kime’s attorney discussed this at length in her briefing in

opposition to the State’s notice of intent to seek designation as a persistent felony offender.

Kime’s attorney complained about his not getting accepted into the WATCh program the last

time he was in prison and how that had impacted his inability to deal with his alcoholism.

She explained Kime’s desire that admission to or completion of the WATCh program not be

tied to parole eligibility so as to increase his chances for admission. This was a major topic

of discussion at the sentencing hearing as well.

                                              8
¶26    At sentencing the State recommended a sentence of 10 years at MSP with no time

suspended. The PSI recommended 15 years with all but the first five suspended. When the

District Court asked defense counsel if she had a recommendation, she stated: “I’m going to

leave that up to you. Mr. Kime wants me to leave that up to you.” (Emphasis added.)

Immediately thereafter the District Court and Kime’s attorney each asked Kime if he wanted

to say anything and he said “No, Your Honor.”

¶27    The District Court sentenced Kime to ten years at MSP with none suspended, based

upon his “lengthy criminal history,” his designation as a persistent felony offender, and

Kime’s request that the sentence contain no suspended time. The District Court noted

defense counsel’s arguments made in opposition to the persistent felony offender

designation, and that Kime’s long history of alcoholism had “derailed his life” and

“contributed greatly” to his criminal conduct. The District Court explained that the sentence

provided an “appropriate and commensurate punishment,” that it held Kime accountable for

his conduct, and that it would hopefully provide him with the opportunity for rehabilitation

and self-improvement by participating in the WATCh program.

¶28    The record in this case shows that starting with the change of plea hearing, through

the PSI process and to the sentencing hearing, Kime made it clear that he would accept

whatever prison time his sentence specified and that he wanted no suspended time. Kime did

this through his attorney and through his own direct statements to the District Court, both

orally and in writing. Kime’s motivations for this position were his past experiences with

suspended sentences that resulted in his return to prison on numerous occasions and his

desire to complete his sentence obligations with a clean break so that he could return to

                                             9
Kentucky. Most tellingly, Kime’s attorney represented to the District Court that Kime

instructed her to make no specific recommendation as to sentence length, and immediately

thereafter Kime expressly said that he had no other statement to make. While Kime was not

required to make his own argument concerning sentencing, he showed no reluctance to

clearly express his views to the District Court in prior proceedings.

¶29    There is no indication that the District Court sentenced Kime based upon the absence

of a specific time recommendation from the defense. By the time of sentencing, the District

Court was quite familiar with Kime’s record, his situation, and his outlook on it. The

District Court knew, because Kime had expressly said so, that his overriding interests were

access to WATCh and a sentence without any suspended time. The District Court carefully

stated the reasoning behind the sentence and there is nothing more than speculation to

support a contention that the sentence was affected by the absence of a specific length

request from the defense.

¶30    The conclusion to be drawn from this record is that Kime agreed to not make a

specific recommendation or request as to the length of his sentence for his own reasons. It is

clear that he instructed his attorney to act accordingly and that she did so. It is also clear that

the District Court sentenced Kime to the low end of the sentence range for a persistent felony

offender (not less than 10 nor more than 100 years in state prison, § 46-18-502(2), MCA),

while making it clear that Kime should be admitted to the WATCh program. Kime received

a sentence like the one he repeatedly said he wanted.

¶31    Where ineffective assistance of counsel claims are based upon facts of record, they

must be raised on direct appeal. State v. Main, 2011 MT 123, ¶ 48, 360 Mont. 470, 255 P.2d

                                                10
1240. Clearly the record in this case demonstrates that counsel’s performance was not

deficient. Consequently Kime has failed to establish the first prong of the Strickland

requirements. Failure to establish either prong is fatal to a claim of ineffective assistance of

counsel. State v. Lindsey, 2011 MT 46, ¶ 43, 359 Mont. 362, 249 P.3d 491. The ineffective

assistance of counsel claim is without merit.

¶32    We affirm the sentence for felony DUI as a persistent felony offender. We reverse the

jail time sentence for the conviction for careless driving and remand to the District Court

with instructions to strike that sentence.

                                                   /S/ Mike McGrath

We concur:

/S/ Beth Baker
/S/ Patricia O. Cotter
/S/ Michael E Wheat
/S/ Brian Morris




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