                                          No. 03-107

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2005 MT 127


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

ARNOLD WIEDRICH,

              Defendant and Appellant.



APPEAL FROM:         District Court of the Thirteenth Judicial District,
                     In and for the County of Yellowstone, Cause No. DC 2002-0286
                     The Honorable G. Todd Baugh, Judge presiding.



COUNSEL OF RECORD:

              For Appellant:

                     Kristina Guest, Assistant Appellate Defender, Helena, Montana

              For Respondent:

                     Honorable Mike McGrath, Montana Attorney General, Carol E. Schmidt,
                     Assistant Attorney General, Helena, Montana; Dennis Paxinos, Yellowstone
                     County Attorney, Billings, Montana



                                                        Submitted on Briefs: January 26, 2005

                                                                   Decided: May 17, 2005


Filed:



                     __________________________________________
                                       Clerk

Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1     Arnold Wiedrich (Wiedrich) pled guilty to felony driving while under the influence

of alcohol. He appeals the sentence imposed by the Thirteenth Judicial District Court. We

affirm in part and vacate in part.

                                         ISSUES

¶2     Wiedrich presents the following two issues on appeal:

¶3     Are the sentencing conditions imposed in the District Court’s written judgment invalid

since these conditions were not discussed or imposed during the court’s oral pronouncement

of sentence?

¶4     Did the District Court err when it included a $1,000.00 fine in its written judgment?

                  FACTUAL AND PROCEDURAL BACKGROUND

¶5     On April 6, 2002, at approximately 2:30 in the afternoon, Wiedrich turned the wrong

way on a one-way street in Billings, Montana, and struck a vehicle stopped at a red light.

The police were already en route having received a “driving under the influence” (DUI) call

just before the accident. Upon arriving at the scene, the responding officer asked Wiedrich

for his license and proof of insurance. Wiedrich answered that he had no license and did not

know where his insurance information was. It was later determined that he had no insurance.

¶6      The officer smelled alcohol and asked Wiedrich to step out of his vehicle.

Wiedrich’s speech was badly slurred, his eyes were red and glassy and he was unable to

stand. The officer ultimately had to drag him to an adjacent grassy spot to minimize

Wiedrich’s risk of injury should he fall again. Also to minimize the risk of injury, the

officer chose not to administer field sobriety tests that involved balance and walking.


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However, on a field-administered Horizontal Gaze Nystagmus (HGN) test, Wiedrich

displayed the maximum number of clues for intoxication.

¶7     Wiedrich refused to take a Preliminary Alcohol Screening Test (PAST) but, upon

subsequent instruction from his probation officer, provided a breath sample on the Intoxilizer

5000 at the Yellowstone County Detention Center. The result demonstrated that Wiedrich’s

blood alcohol content (BAC) was .250. Wiedrich was charged with one count of felony DUI

and two misdemeanor counts--driving on a suspended or revoked license, and operating a

vehicle without liability insurance.

¶8     At Wiedrich’s April 10, 2002, arraignment, he pled not guilty. Additionally, on April

10, 2002, the State filed notice of its intent to designate Wiedrich a persistent felony offender

(PFO). In August 2002, Wiedrich entered into a plea agreement and changed his plea to

guilty. As part of the plea agreement, the State agreed to drop the misdemeanor charges

against Wiedrich and agreed to recommend a sentence of ten years at Montana State Prison

(MSP). The District Court accepted the change of plea and ordered a pre-sentence

investigation report (PSI). The PSI, dated October 29, 2002, was submitted to the court on

the morning of the sentencing hearing.

¶9     On November 18, 2002, the District Court held a sentencing hearing during which the

State, pursuant to agreement, recommended ten years at MSP. Wiedrich’s counsel in turn

argued for five years at MSP, to run consecutive with the ten months remaining on a

previous conviction for which Wiedrich had been on parole prior to the April 6 incident.

The District Court, noting that this was Wiedrich’s eleventh DUI, sentenced Wiedrich as a


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PFO to fourteen years at MSP, with five years suspended. The court also prohibited

Wiedrich from driving during the entire fourteen years and retained jurisdiction of the case

to review the no-driving condition. On November 20, 2002, the District Court issued its

written judgment. Wiedrich appeals on the ground that the written judgment contained terms

and conditions that were not expressly articulated at the time the District Court pronounced

the oral sentence.

                               STANDARD OF REVIEW

¶10    We review a district court’s imposition of a criminal sentence for legality. On

sentencing questions regarding statutory interpretation, we review the trial court’s

interpretation of the law to determine whether it is correct. State v. McDanold, 2004 MT

167, ¶ 12, 322 Mont. 31, ¶ 12, 97 P.3d 1076, ¶ 12 (citing State v. Montoya, 1999 MT 180,

¶¶ 15-16, 295 Mont. 288, ¶¶ 15-16, 983 P.2d 937, ¶¶ 15-16).

                                      DISCUSSION

¶11    In State v. Lane, 1998 MT 76, 288 Mont. 286, 957 P.2d 9, we held that the oral

pronouncement of a criminal sentence is the legally effective sentence. In issuing that

ruling, the Court analyzed relevant statutes and Montana’s Constitutional provision that

provide a criminal defendant with the right to be present in the courtroom at the time of

sentencing. The Court also observed that a “substantial number of the federal circuit courts

and state supreme courts subscribe to the principle that when a conflict exists between a

court’s unambiguous oral pronouncement of sentence and a written judgment, the oral

pronouncement, as correctly reported, must control.” Lane, ¶ 39. As a result of our decision


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in Lane, we concluded that the written judgment would serve “as evidence of the sentence

orally pronounced.” Lane, ¶ 40.

¶12    Wiedrich maintains that because the written judgment contains terms and conditions

that were not orally pronounced, these extra conditions are invalid and should be removed

from his sentence. Wiedrich requests that we reverse and remand this case to the District

Court with orders that the District Court conform its written judgment to the oral

pronouncement of sentence, thereby removing the majority of parole conditions contained

in his current written judgment.

¶13    The State counters that, while the District Court judge did not read every term and

condition contained in the PSI, it is evident from the transcript that the judge imposed, with

some expressed variations, the PSI-recommended sentence, and that Wiedrich understood

this during the sentencing hearing and at the time the sentence was pronounced. As a result,

the State avers, the written sentence does not conflict with the oral sentence and should not

be modified. Moreover, the State argues, the majority of the conditions imposed on

Wiedrich were “stock” conditions that did not infringe on Wiedrich’s liberty or property

interests.

¶14    Because our ruling is based upon the specific colloquy that occurred during the

sentencing hearing, we recite the relevant portions. After the District Court asked if there

was any legal reason that sentencing should not go forward at that time, Wiedrich’s counsel

replied:




                                              5
Counsel:               No, Judge. We have received a copy of the presentence investigation
                       report. I have gone over that report with Mr. Wiedrich. I do have a
                       couple of changes to point out to the Court.

District Court:        Okay.

¶15    Counsel for Wiedrich then identified specific pages and lines in the criminal history

section of the PSI and requested changes or corrections. After obtaining the State’s

concurrence, the District Court judge entered the changes on his copy of the PSI in his

handwriting.       The court then requested the State’s recommendations.              The State

recommended ten years at MSP, emphasizing that this was Wiedrich’s eleventh DUI and that

his BAC was more than double the legal limit.

¶16    Wiedrich’s counsel then requested a five-year MSP sentence emphasizing her client’s

age (57 years) and his significant health problems. Wiedrich also asked to be allowed to

attend the WATCH program. Counsel for Wiedrich then stated:

       I would respectfully ask that the Court consider imposing that sentence. I’d
       also like to, regarding the conditions of probation on page 7 of the PSI report,
       number 7 is that the defendant will obtain permission from probation and
       parole before financing or operating a vehicle, property, or engaging in
       business. I ask that you strike that, that’s [sic] it’s not rationally related to a
       DUI sentence. And secondly, on page 8, number 21 [of the PSI], is that the
       defendant will abide by a curfew as determined necessary and appropriate by
       probation and parole, and I would ask that that be stricken considering that Mr.
       Wiedrich is 57 years old. And with that –

The District Court responded: “Maybe if he would abide by curfew he would be less likely

to be drinking.”

¶17    The District Court subsequently asked if Wiedrich wished to say anything. Wiedrich

declined. The court then noted from the criminal history section of the PSI that Wiedrich


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had three prior felonies, twenty-three prior misdemeanors and eleven DUIs. The District

Court then stated:

        The sentence recommended is appropriate, but we are going to make it a little
        longer so that we can watch over you at least until you’re 72. It will be the
        sentence as to a persistent felony offender that the defendant be sentenced to
        14 years at the Montana State Prison, 5 suspended. No driving at any time
        during this entire 14-year period, which is, when you tack it on to the parole
        that you’re doing, it’s going to be 15 years from now before you can drive
        again.

        I’ll retain jurisdiction to review that just in case your probation officer thinks
        you ought to be allowed to drive. I will not strike the curfew. On number 7,
        I will not require that you have permission to finance or purchase property or
        engage in business, but you do have to have permission from your probation
        and parole officer before purchasing a motor vehicle.

¶18     As these transcript excerpts reveal, the District Court utilized the PSI when

pronouncing sentence. The court clearly adopted the sentence recommended in the PSI, with

some variations, and Wiedrich and his attorney were fully aware of this. We therefore

decline to remand for re-sentencing. We nonetheless caution judges once again to carefully

articulate, at pronouncement of sentence, each “aspect, term, requirement and condition” of

an imposed sentence. Lane, ¶ 61 (Nelson, J., concurring). The risk of a written sentence

differing from the oral sentence would be thereby minimized, if not eliminated, as would the

likelihood of a sentence being later challenged.

¶19     Second, Wiedrich argues, and the State agrees, that the court failed to give Wiedrich

credit against his $1,000.00 fine as is required under § 46-18-403(2), MCA, for the period

of time he was incarcerated prior to his conviction. Section 46-18-403(2), MCA, requires

that:


                                                7
        [a]ny person incarcerated on a bailable offense who does not supply bail and
       against whom a fine is levied on conviction of the offense must be allowed a
       credit for each day of incarceration prior to conviction, except that the amount
       allowed or credited may not exceed the amount of the fine. The daily rate of
       credit for incarceration must be established annually by the board of county
       commissioners by resolution. The daily rate must be equal to the actual cost
       incurred by the detention facility for which the rate is established.

It is undisputed that Wiedrich served at least 227 days prior to his conviction. The daily rate

of credit for incarceration in Yellowstone County at that time was $50.00. Therefore, the

credit the District Court was required to grant Wiedrich far exceeded the $1,000.00 fine. As

a result, the $1,000.00 fine is vacated.

                                      CONCLUSION

¶20    For the foregoing reasons, we affirm the District Court’s imposition of conditions

contained in the preliminary sentencing investigation. We vacate the court’s imposition of

the $1,000.00 fine.

                                                                 /S/ PATRICIA O. COTTER


We Concur:


/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ JIM RICE
/S/ BRIAN MORRIS




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