                                No. 8 5 - 5 1 0
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     1986




STATE OF MONTANA,
                 Plaintiff and Respondent,
         -vs-
JERRY THOMAS KORELL,
                 Defendant and Appellant.




APPEAL FROM:     District Court of the Fourth Judicial District,
                 In and for The County of Ravalli,
                 The Honorable Robert Holter, Judge presiding.

COUNSEL OF RECORD:

         For Appellant:
                 John C. Doyle, Phoenix, Arizona

         For Respondent:
                 Hon. Mike Greely, Attorney General, Helena, Montana
                 Kimberly A. Kradolfer, Asst. Attorney General, Helena
                 Robert B. Brown, County Attorney, Hamilton, Montana
                 Margaret Tonon, Deputy County Attorney, Hamilton




                                     Submitted on Briefs: April 4, 1 9 8 6
                                        Decided: June 17, 1986


Filed:   J U N 1 7 1986


                                                  *
                           6iL.4 */L Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.


     Defendant Mr. Korell was convicted of attempted deliber-
ate homicide and aggravated assault.      He was placed at the
Montana State Hospital, Warm Springs Campus as part of his
sentence.     In September 1985, his sentence was amended and he
was transferred to the Montana State Prison.    He appeals that
order.    We affirm.
     The issue is whether Mr. Korell was properly sentenced
to Montana State Prison.
     The facts behind Mr. Korell's criminal conviction were
set out in State v. Korell (Mont. 1984), 690 P.2d 992, 41
St.Rep. 2141.     In that appeal, this Court remanded the case
pursuant to the District Court's duty to independently evalu-
ate the defendant's mental condition prior to sentencing.
His mental capacity had been a heated point of contention at
trial, and conflicting psychiatric testimony had been pre-
sented.     Following this Court's decision in that appeal, the
District Court found that "at the time of the offense, the
Defendant's mental disease or defect rendered him unable to
appreciate the criminality of his conduct or to conform his
conduct to the requirements of the law," and resentenced him
as follows:

     1. For Charge I, Attempted Deliberate Homicide, a
     Felony, the Defendant is hereby committed to the
     custody of the Department of Institutions for a
     period of thirty-five (35) years;
     2. For Charge 11, Aggravated Assault, the Defen-
     dant is hereby committed to the custody of the
     Department of Institutions for a period of fifteen
     (15) years;
     IT IS FURTHER ORDERED that the above separate
     sentences as to Charges I and I1 are to run
     concurrently.
       IT IS FURTHER ORDERED that upon entry of this
       Judgment, the Defendant is to be placed for treat-
       ment in the Warm Springs State Hospital or in a
       Veterans Administration Hospital which has been
       approved by the Department of Institutions, for a
       period of two (2) years.
       IT IS FURTHER ORDERED that the Defendant shall not
       be released from any such hospital or Veterans
       Administration facility without specific order of
       this Court.
       IT IS FURTHER ORDERED that at the conclusion of the
       initial two-year period as above outlined, the
       Defendant, upon order of this Court, shall be
       placed in a suitable community-based residential
       treatment facility.
       IT IS FURTHER ORDERED that the Defendant is ordered
       to continue psychiatric treatment throughout the
       term of this sentence, and the Department of Insti-
       tutions is ordered to provide such treatment or
       supervise treatment provided by other agencies
       approved by the Department of Institutions.
Mr. Korell was admitted to Warm Springs in May 1985, under
that order.    He was placed in the forensic unit at the hospi-
tal.     Initial physical and neurological examinations were
performed, but the staff and doctors did not observe any
signs or symptoms of psychosis.           Mr. Korell sent several
letters to the District Court, demanding treatment and re-
questing a pass to attend the Fourth of July parade in Butte.
Based apparently on the letters, the District Court issued an
order that Mr. Korell be transferred out of the forensic unit
to a treatment unit "which will be able to facilitate the
immediate     commencement   of   therapeutic   treatment   for   the
Defendant's paranoid schizophrenia."        Mr. Korell was trans-
ferred to a ward for longer term, chronically mentally ill
patients, but he was not treated for mental illness because
he was not found to be suffering from mental illness.
       In August, pursuant to       the   resentencing order, Mr.
Korell's placement was reviewed by the District Court.            Dr.
Xanthopoulos, acting Clinical Director and psychiatrist, and
Dr. Deming , a psychologist, both of Warm Springs, testified.
The court found, in part, that:

    4. The doctors treating Defendant have determined
    Defendant   does    not   suffer    from  paranoid
    schizophrenia, either active or in remission, and
    shows no symtomatology of either. Defendant is not
    being "treated" at Montana State Hospital because
    the staff can find no mental illness to treat. He
    is diagnosed as having mixed personality disorder
    with anti-social and passive/aggressive features,
    sometime referred to as maladaptive behavior, for
    which there is no treatment available.
     5. At the hearing on August 1, 1985, Defendant
     appeared to be calm and to act and dress
     appropriately.
    6. In February, 1985, Defendant stated he felt
    mentally good after approximately eleven months in
    the Montana State Prison and that he had taken
    advantage of available mental health counseling
    there. He had functioned reasonably well and had
    not obtained any serious negative write-ups.    He
    earned good time and would obtain earlier release
    from prison than the State Hospital, but felt he
    would like any treatment the hospital could afford
    him.
The court concluded that:

    1. In its previous Judgment upon resentencing, the
    Court found that the Defendant was suffering from a
    mental disease or defect at the time of the commis-
    sion of the crime and committed Defendant to the
    Montana State Hospital or a Veterans hospital for a
    specified period of time.
    2. Defendant no longer suffers from a mental
    disease or defect, and there is serious doubt he
    ever did.
     3. That under Section 46-14-312 (3), M.C.A., the
     Court may now make an order not inconsistent with
     its original sentencing authority except that the
     length of sentence or confinement must be equal to
     that of the original sentence.
The court amended its Judgment on Resentencing by ordering
that Mr. Korell be returned to the Montana. State Prison for
completion of his sentence, with credit for time served and
for good time earned.
     Mr. Korell states that the order transferring him to
Montana State Prison violates the constitutional prohibition
of cruel and unusual punishment.      The case he cites in sup-
port of this argument, Estelle v. Gamble (1976), 429 U.S. 97,
97 S.Ct. 285, 50 L.Ed.2d    251, involved injuries to a federal
prisoner while he was performing a prison work assignment.
The prisoner was examined and treated for low back strain,
but his complaints of back pain and inability to work out-
lasted the diagnosis.   He filed a pro se complaint, alleging
that he had    not received adequate medical treatment, in
violation of the prohibition against cruel and unusual pun-
ishment and in violation of 43 U.S.    §   1983.   The lower court
dismissed his complaint for failure to state a claim.          In
affirming the holding that he had not alleged conduct consti-
tuting cruel and unusual punishment, the Supreme Court held
that "deliberate indifference to serious medical needs of
prisoners" constitutes an unnecessary and wanton infliction
of pain prohibited by the Eighth Amendment.          Estelle, 429
U.S. at 104.   The Court held however, that:

     .   .
      . the question whether an X-ray--or additional
    diagnostic techniques or forms of treatment--is
    indicated is a classic example of a matter for
    medical judgment. A medical decision not to order
    an X-ray, or like measures, does not represent
    cruel and unusual punishment.
Estelle, 429 U.S. at 107.
    The medical opinion of the doctors at Warm Springs State
Hospital is that Mr. Korell suffers from no treatable mental
illness, and Dr. Xanthopoulos concurred with Mr. Korell's
once-stated wish to return to Montana State Prison.            We
conclude that the District Court's order that Mr. Korell be
returned to Montana State Prison is based on medical opinions
on matters for medical judgment.      We hold that the District
Court's    order     does     not   constitute      cruel    and     unusual
punishment.
      Our standard for review of the District Court's discre-
tion is whether there is substantial evidence to support the
court's    findings and conclusions.          State v.        Hall     (Mont.
1983), 662 P.2d 1306, 1308, 40 St.Rep. 621, 624.                   The basis
for Mr. Korell's position and for the District Court's Febru-
ary 1985 finding that he suffered from a mental disease or
defect at the time of the crimes, is the February 1985 testi-
mony and diagnosis of Dr. William Stratford that Mr. Korell
suffered from paranoid schizophrenia, and would benefit from
counseling     and     from     drug     therapy.           However,     the
uncontroverted evidence at the August 1985 hearing was that
Mr.   Korell is not now suffering from a treatable mental
illness.      Both Drs. Xanthopoulos and Deming testified to
this, and they were the only witnesses.                Dr. Deming also
testified that Mr. Korell did not exhibit characteristics of
a paranoid schizophrenic in remission.                We conclude that
there is substantial evidence to support the District Court's
finding that Mr. Korell is not now suffering from a mental
disease or defect.
      The statute governing modification of a criminal sen-
tence of a person suffering from a mental disease or defect
at the time of the act is       §   46-14-312(3), MCA:

      (3) A defendant whose sentence has been imposed
      under subsection (2) may petition the sentencing
      court for review of the sentence if the profession-
      al person certifies that the defendant has been
      cured of the mental disease or defect.     The sen-
      tencing 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 pro-
      fessional person shall review the defendant's
      status each year.
The District Court's order dated September 1985 amends the
finding as to whether Mr. Korell suffers from a mental dis-
ease or defect, but the amendment is not inconsistant with
the court's original sentencing authority.         It does not
change the length of confinement or supervision.    We conclude
that the District Court acted within its discretion when it
modified Mr. Korell's sentence to place him at Montana State
Prison.




                              a
    We affirm.



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