                             No.    95-171
           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                   1995



STATE OF MONTANA,
          Plaintiff and Respondent,

     v.
                                                                         '.   "   '"
                                             C,.,'I,: . , '.
                                                                .             ,';, <.VRT
GENE E. LUCAS,                                    ..; ; " ".,       ",
                                                                          , ,; i,', ,~:\~ ~



          Defendant and Appellant.




APPEAL FROM:     District Court of the Sixteenth Judicial District,
                 In and for the County of Rosebud,
                 The Honorable Joe L. Hegel, Judge presiding.



COUNSEL OF RECORD:
          For Appellant:
                 William F. Hooks, Appellate Defender,
                 Helena, Montana
          For Respondent:
                 Hon. Joseph P. Mazurek, Attorney General,
                 Micheal S. Wellenstein, Assistant Attorney
                 General, Helena, Montana
                 Lee Kerr, Rosebud County Attorney,
                 Forsyth, Montana


                             Submitted on Briefs:                    October 19, 1995
                                             Decided:                    November 14, 1995
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.

      Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1995 Internal Operating Rules, the following decision shall not be

cited as precedent and shall be published by its filing as a public

document with the Clerk of the Supreme Court and by a report of its

result to State Reporter Publishing Company and West Publishing

Company.

      Defendant     Gene   E.   Lucas   was    convicted    in   the   Sixteenth

Judicial District Court in Rosebud County of two counts of criminal

possession    of    dangerous   drugs   and    misdemeanor    theft.      He   was

designated a persistent felony offender and sentenced to serve two

consecutive terms of five and ten years in the Montana State Prison

and a concurrent term of six months in the Rosebud County Jail.

Lucas appeals the District Court's imposition of a prison sentence.

We   vacate   his   sentence    and   remand    to   the   District    Court   for

resentencing.

      The issue on appeal is whether the District Court erred when

it failed to consider alternatives to imprisonment for a nonviolent

felony offense pursuant to §§ 46-18-201(10) and -225, MCA.

                            FACTUAL BACKGROUND

      On October 7,     1994,   the State charged Lucas by information

with one count of criminal possession of dangerous drugs, a felony,

in violation of § 45-9-102, MCA.              Lucas was released on bail on

October 7, 1994.      On January 26, 1995, a jury found Lucas guilty of

criminal possession of dangerous drugs.


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     On January 9,           1995,   the State charged Lucas by information

with one count of felony theft in violation of                  §   45-6-301, MCA, and

one count of criminal possession of dangerous drugs, a felony, in

violation of     §   45-9-102, MCA.        Lucas was accused of committing both

crimes   while       awaiting      trial    of    the   first   charge    of    criminal

possession of dangerous drugs.                   On January 19,       1994,    the State

filed a notice of            intent to seek a persistent              felony offender

designation for Lucas.             On January 30, 1995, Lucas pled guilty to

the second charge of criminal possession of dangerous drugs.

     For the         first offense of criminal possession of dangerous

drugs, the court sentenced Lucas to serve a five-year term in the

Montana State Prison.          For the second offense, the court designated

Lucas a persistent felony offender and sentenced him to a term of

ten years in the Montana State Prison, to be served consecutively

with his first sentence.

     On appeal,        Lucas contends that              since he was designated a

nonviolent felony offender as defined in                  §   46-18-104(3), MCA, the

District   Court       had    to     consider     alternatives       to   imprisonment

pursuant to      §   46-18-201 (10),       MCA,    in light of the criteria set
forth in   §   46-18-225, MCA.             Lucas further contends that if the
court determined that imprisonment was necessary, it had to state
its reasons why alternatives to imprisonment were not selected

based on the criteria set forth in                §   46-18-225, MCA.




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                                          DISCUSSION

         This   Court      has    addressed           a    district     court's     failure      to

consider alternatives to imprisonment at the Montana State Prison

for a nonviolent felony offender,                          pursuant to      §§   46-18-201(10)

and -225, MCA, inStatev.Pence (Mont. 1995),902 P.2d41, 52 St. Rep.

937; State v. LaMere (Mont. 1995), 900 P.2d 926, 52 St. Rep. 828; and

State v. Stevens (1993), 259 Mont. 114, 854 P.2d 336.                        In each case, we

remanded        the    sentence        to    the          district      court      to    consider

alternatives          to   imprisonment       at          the    Montana    State       Prison   as

required by      §§    46-18-201(10) and -225, MCA.

         In Pence, we set forth the obligations of a trial court when

sentencing a nonviolent felony offender:

               Initially,   a   district   court   must   consider
         alternatives to imprisonment.    Second, in considering
         al ternati ves to imprisonment, a district court must
         examine the ten sentencing criteria found in § 46-18-225,
         MCA.    Finally, if a district court decides against
         alternatives to imprisonment, it must provide reasons why
         it did not select alternatives.

Pence,    902 P.2d at 46 (citing Stevens, 854 P.2d at 337).

         In this case, the State concedes that the District Court, in

sentencing        Lucas,         failed      to           articulate       consideration         of

alternatives to imprisonment.                Therefore, we hold that in light of
our previous decisions and the State's concession,                                  this matter

should be remanded to the District Court for compliance with the

three Stevens requirements.

         Lucas also contends that he is entitled to a new sentencing

hearing.        However,         we   hold   that         a     new   sentencing    hearing      is

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unnecessary.       A review of the record demonstrates that                    a   full

hearing was held prior to the original sentencing order and that

evidence presented addressed all of the relevant criteria set forth

in   §   46-18-225, MCA.   We note that Lucas himself testified at the

sentencing      hearing    and        had   the   opportunity   to   present       any

additional evidence that he felt the court should have considered.

         For the reasons stated above, we vacate Lucas's sentence and

remand to the District Court for resentencing consistent with this

opinion and pursuant to          §§   46-18-201(10) and -225, MCA.




                                             I~ice

We concur:




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