                                               NO.     95-105
                  IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                     1995


THE STATE OF MONTANA,
                  Plaintiff/Respondent,
         -v-
RONALD EVANS,
         Defendant/Appellant.




APPEAL         FROM:     District  Court of the Second Judicial                  District,
                         In and for the County of Silver   bow,
                         The Honorable   James E. Purcell, Judge                 presiding.


COUNSEL OF RECORD:
                  For   Appellant:
                         Jeffrey          T.        Rem,      Montana     Defender       Project,
                         Univeristy            of    Montana,    School    of Law,      Missoula,
                         Montana
                  For   Respondent:
                         Hon. Joseph    P. Mazurek,        Attorney        General,    Crew
                         Coughlin,    Assistant       Attorney        General,      Helena,
                         Montana;    Robert      McCarthy,        Silver       Bow   County
                         Attorney,   Brad Newman, Deputy             Silver     Bow County
                         Attorney,  Butte,     Montana


                                                      Submitted    on Briefs:    May 11,           1995
                                                                     Decided:        July    13,     1995
Filed:
Justice          Fred             J.      Weber         delivered               the         Opinion             of     the         Court.

          This         is         an appeal               from       a designation                        as dangerous                    offender               by

the     Second              Judicial                 District            Court,             Silver             Bow County.                       We remand
so      the           court               can         articulate                 its          reasons                 for          entering                this
designation.

          The         following                  issues           are        dispositive                  of     the         case:
          I.           Did          the        District             Court          err        in     relying              upon           the      evidence

found          in the            case        record         for        its     designation                     of dangerous                      offender?
          II.          Did          the        District             Court          err        in     failing                to     articulate                   its

reasons          for         designating                    Evans            a dangerous                  offender?
          On August                    30,       1994,          a vehicle                driven           by Ronald                    Evans            (Evans)
veered          into             the      on-coming                 lane       and          collided             head            on with              another

vehicle           driven                  by     Sonnie             Holm         (Helm).                  Helm         and             another            adult

passenger              were            seriously                injured.                 The passenger's                           five          month          old

baby       sustained                      serious               head         injuries               and         eventually                     died        as         a

consequence                   of       the       accident.
          Evans,                  whose           blood             alcohol              was         .164            an          hour           after           the

accident,                  was            charged           with             one         count            of         negligent                   vehicular

homicide,               a felony                 and two             counts            of     negligent                vehicular                   assault,

a misdemeanor.                            Evans         initially              pled          not     guilty,                but         later         changed

his     plea          to         guilty          pursuant               to     an agreement                     with             the     State.

          Evans             was           freed         on bond,               but          following                 a disturbance                        in         a

vacant          lot         in     Butte,             Evans         was charged                    with        disorderly                  conduct              and

his     bond          was revoked.                        He was remanded                           to     the        county             jail.

          On November                          21,      1994,          the      District                 Court         sentenced                   Evans          to

ten     years              on the              negligent               homicide              count             and     six         months               on each

                                                                                 2
count        of negligent                  vehicular             assault,                   all        time        to run      concurrently.
Evans         was also            ordered               to pay $1,000                   fine            and $10,000                restitution.

Evans        was remanded                  to      the        custody            of the                Department           of      Corrections
with         a     recommendation                        that     he            be     placed                 at     the    Montana               State
Prison.             The court               also          designated                  Evans             a dangerous                offender             for

purposes            of     parole           eligibility.

          Evans           filed           his          appeal         on        January                 12,        1995,      appealing                 his
dangerous              offender             designation.

                                                                           I.

          Did       the        District            Court        err        in        relying             upon        the    evidence              found
in     the        case     record           for         its     designation                       of     dangerous             offender?

          Appellant               argues               that     the        record             does        not        contain          sufficient

evidence            that         he is          a dangerous                 offender.                     The State                disagrees.

                  Under   § 46-18-404,            MCA, 'I an individual              may be
          designated     a dangerous        offender,        if,  in the discretion         of
          the sentencing         court,      he is determined            to represent         a
          substantial     danger to other persons                or society;       however,
          more than a mere recital                of the statutory            language      is
          required.       . .'I     [citations        omitted.1       Our review       of the
          record     here indicates         that    the District        Court    failed     to
          articulate       its     reasons        for      the     dangerous       offender
          designation.        . .

                 Where the record below reveals          substantial   evidence
          to support     a sentencing      court's     determination    that    an
          offender    is dangerous,   this    Court has remanded the cause
          to the district       judge  for    findings      to support    such a
          conclusion.

State        v.     Belmarez              (1991),             248 Mont.               378,         381,            812 P.2d        341,    342-43.

             The       record             here           indicates                   that          Evans             has      a      dismal             and

extensive                juvenile               criminal              record.                     At     the        time      of      sentencing

Evans            was      18      years           of      age     and           had          already                been    involved               in         a

negligent                vehicular              homicide.                  The         felony             occurred             because            Evans


                                                                            3
was intoxicated                     while         driving      and swerved into                  the oncoming lane of
traffic.
           Further,                the record            indicates            that     while      out of jail              on bail
bond       during             the          vehicular          homicide               proceedings,              he      was again
arrested           for        disorderly              conduct          and resisting               arrest.              The court
indicated              that         Evans was "incorrigible"                           and the record                 bears     this
out.        Further,               the record            also reflects                that     he has not sought                help
with        his          drinking              problem,             but          continues         to         drink        without
considering                the        consequences              of         his     actions.          Nor does he show
remorse          for      the lives               that      he negatively               impacts.          These facts             are
contained              in the record                 and the court                   should      have noted             them,     all
or in part,               for        its      determination                 that      he represented                  a danger     to
society.
           We hold             that         the     record       contains              substantial             evidence          from
which the District                         Court      could have drawn support                          for     its     dangerous
offender           designation.
                                                                     II.
           Did      the            District          Court       err          in     failing       to         articulate          its
reasons           for      designating                Evans a dangerous                      offender?
           Evans argues                    on appeal          that         the court           did not articulate                 the
reasons           that        it     found him to be a dangerous                             offender.            According          to

Evans,        the court                had to specifically                         state       why it     found         him to be
a danger           to society                 and could         not just              mimic the wording                  of     § 46-
18-404(l)           (b),           MCA.
           The State                 argues         that      the          court's         statements           were adequate
according               to the statute                   and our case law.

                                                                       4
          Section     46-18-404(l),             MCA, states       in pertinent                 part:
           (1)        . . . ET1 he sentencing     court shall designate     an
          offender         a nondangerous     offender     for  purposes    of
          eligibility        for parole under part 2 of chapter 23 if:
           (a) during the 5 years preceding the commission of the
          offense       for which the offender      is being sentenced,    the
          offender was neither convicted of nor incarcerated            for an
          offense committed in this state or any other jurisdiction
          for which a sentence to a term of imprisonment            in excess
          of 1 year could have been imposed; and
           (b)     the court has determined,       based on any presentence
          report       and the evidence presented      at the trial   and the
          sentencing        hearing,  that the offender   does not represent
          a substantial         danger to other persons or society.
This      statute        governs        the     designation           of     both      nondangerous                 and
dangerous        offenders.            State    v. Wing (1994),              264 Mont.         215, 870 P.2d
1368.
          In making a dangerous                 designation,          the court              should      consider
the     defendant's          persistence           in criminal         conduct,          the      defendant's
failure      with     earlier         discipline       to deter        or reform             him and whether
the defendant            is a substantial            danger to others                or society.                State
v.     Nichols       (1986),          222 Mont.        71,     720 P.2d             1157.         Also       to      be
considered          is      the       vicious       nature       of        the      crime        engaged            in.
Belmarez,         248 Mont.           at 382,      812 P.2d at 343.
          In making         the       dangerous      offender         designation,              the      district
courts       must        articulate        their      reasons         for         imposing       a dangerous
designation;             a mere recital            of the statutory                language       will      not be
sufficient          because       we cannot         review      the court's             discretion              based
upon a mere repetition                   of the statutory             directives.              Belmarez,            248

Mont.       at 381,        812 P.2d at 343.                 When a court             fails      to      state       its

specific          reasons         and     substantial          evidence             exists        for      such           a

finding,         we will      remand the case in order                     that    the court           follow       the

                                                        5
proper        procedure.         Belmarez,                248 Mont.           at     381,        812 P.2d          at     343.
         Here,        the     court          made          the         following               conclusions              in       its
judgment:

               That Defendant       Ronald Evans is a dangerous       offender
         and is currently        a threat    to society   and confinement      in
         the   Montana     State     Prison     in Deer Lodge,     Montana     is
         necessary     and appropriate       for the protection     of society
         and particularly        the rehabilitation     of the Defendant.

                   That the Defendant             Ronald Evans has been sentenced
         to Montana            State      Prison      after   this      Court     has fully
         considered          the gravity         of the offenses,           the punishment
         permitted         by law,        the deterrent        effect      on others,        the
         protection             of      society         while     the       Defendant           is
         incarcerated,            and the possibilities,            or lack thereof,            of
         rehabilitation             of this       Defendant      and the Pre-Sentence
         Report.         The Court has also considered                 the Motive        of the
         Defendant           in     committing          the   crime,         his     lack       of
         cooperation          with officials         and mitigating         circumstances.
         The age of the Defendant                        and the      Defendant's         prior
         criminal        record,      including      his juvenile       record,     were also
         taken       into      consideration           along   with      the     Defendant's
         lifestyle          and his        lack    of significant           goals     or work
         history.

This     is    merely       repetition              of     the       elements            as    stated        in    statutory

directives         and case           law.          It    is     not     sufficient.
         The     State       argues          that         this       case      is        analogous           to     State         v.

Buckman         (1989),     236 Mont.           37,        768 P.2d         1361.             There,    the       court      gave

the       following           reasons               for          making            the         dangerous            offender

designation:
                The defendant,         since     he was 18 years old,           has been
         involved     with the criminal           law.      In 1979, he was given            a
         three     (3) year deferred            sentence       for   auto   theft.         In
         1980, he was convicted,             by a jury,       of Aggravated        Assault
         and Aggravated        Kidnapping,          felonies,      and was given         two
         ten     (10)   year    terms      which       ran concurrently          and was
         designated       a Dangerous       offender.          He was released         from
         the Montana State         Prison      in February,        1987 and committed
         the crime      of Deceptive        Practices,        a felony,    by stealing
         and using      stolen    credit      cards.
                 The defendant      has demonstrated           no evidence     or effort
         to rehabilitate         himself      and is addicted           to alcohol       and
                                                                 6
         drugs.     His incarceration      is necessary  for                                long       term       in-
         patient     treatment      for alcohol   and drugs                                  and        for       the
         protection      of the public.

Buckman,         236 Mont.            at     40-41,      768 P.2d          at    1363.          The Buckman             court
gave     specific         facts            taken      from   the        record     of     the     case      as     reasons

for     making      its    decision.                Buckman        is    not     analogous            to   the     case      at

hand.

         While      the    court            here    made its        decision            "pursuant          to     Findings

and Conclusions                 set    forth        above"     such        is    not     sufficient              reasoning
for     our   review.

         Remanded         for     further          proceedings           cons




We Concur:
