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                                                               No. 00-740

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                            2001 MT 226N



                                                 THE STATE OF MONTANA,

                                                     Plaintiff and Respondent,

                                                                      v.

                                                     MITCHELL KENNEDY,

                                                     Defendant and Appellant.

                           APPEAL FROM: District Court of the Fourth Judicial District,

                                                In and for the County of Mineral,

                                           Honorable Ed McLean, Judge Presiding



                                                    COUNSEL OF RECORD:

                                                             For Appellant:

                            Kristina Guest, Appellate Defender's Office, Helena, Montana

                                                           For Respondents:

                          Honorable Mike McGrath, Attorney General; Tammy K. Plubell,

                                       Assistant Attorney General, Helena, Montana

                               M. Shaun Donovan, County Attorney, Superior, Montana

                                          Submitted on Briefs: September 27, 2001

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                                                    Decided: November 15, 2001

                                                                    Filed:

                                    _________________________________________

                                                                    Clerk



Justice W. William Leaphart delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent. It shall be filed as a public
document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.

¶2 Pursuant to a plea agreement, Appellant Mitchell Todd Kennedy (Kennedy) pleaded
guilty to mitigated deliberate homicide, felony assault and assault on a peace officer. The
District Court sentenced Kennedy to the maximum possible sentence for each offense,
including a ten-year weapons enhancement, for a total of seventy years imprisonment.
Additionally, the court declared Kennedy ineligible for parole for 35 years. Kennedy
appeals from imposition of parole ineligibility. We affirm.

¶3 We review imposition of sentences for legality. State v. Montoya, 1999 MT 180, ¶ 15,
295 Mont. 288, ¶ 15, 983 P.2d 937, ¶ 15. The standard of review on the legality of a
sentence is de novo review. Montoya, ¶ 12. We determine whether the district court's
interpretation of the law is correct. Montoya, ¶ 16.

¶4 Kennedy contends on appeal that, in violation of § 46-18-202(2), MCA, the court failed
to adequately state the reasons why it imposed a 35-year parole ineligibility restriction
against him.

¶5 The statutory provision in question provides as follows:

        Whenever the sentencing judge imposes a sentence of imprisonment in a state
        prison for a term exceeding 1 year, the sentencing judge may also impose the
        restriction that the offender is ineligible for parole and participation in the

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        supervised release program while serving that term. If the restriction is to be
        imposed, the sentencing judge shall state the reasons for it in writing. If the
        sentencing judge finds that the restriction is necessary for the protection of society,
        the judge shall impose the restriction as part of the sentence and the judgment must
        contain a statement of the reasons for the restriction.

Section 46-18-202(2), MCA.

¶6 In State v. Krantz (1990), 241 Mont. 501, 505, 788 P.2d 298, 300-01, we observed that
the rule requiring a court to state its reasons for a sentence complies with basic fairness
and acknowledges the defendant's right to be informed of the reasons for the sentence.
Further, the requirement facilitates review by this Court and its Sentence Review Division.

¶7 Kennedy argues that the District Court found that he was an alcoholic and condemned
his parenting choices but stated no reasons related to his offense to justify restricting his
parole eligibility for 35 years.

¶8 The State cites State v. Christianson, 1999 MT 156, 295 Mont. 100, 983 P.2d 909,
where this Court, although not specifically reviewing the adequacy of the lower court's
rationale for restricting parole eligibility, concluded in dicta that the record revealed the
district court imposed the parole restriction because of the "brutal and callous" nature of
the crime. The nature of the crime was sufficient reason to restrict parole eligibility.

¶9 In its judgment, the District Court in the matter now before us stated:

        This Court finds that over the past seventeen (17) years the Defendant has made a
        conscious choice to consume alcohol to excess rather than spend time with and for
        the benefit of his daughter, as typified by his going to the local bar, and borrowing
        the weapons necessary to accomplish this homicide instead of spending time with
        this daughter upon learning of his wife's intention to leave him. The Court declines
        to promote that relationship by imposing a lenient sentence at the expense of the
        other considerations specified below. The Court further finds that any compulsive
        gambling problems suffered by the Defendant's wife and the victim of his homicide,
        Lavonne, are not grounds for him to indulge in self-pity or the excessive
        consumption of intoxicants, particularly when the Defendant had previously been
        enrolled in a 12-step alcohol treatment program and had the tools to cope with his
        chemical dependency problem.

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        With respect to the alcoholic blackout claimed by the Defendant, the Court would
        note that even taking the Defendant's testimony at face value, no sufficient
        explanation was offered for his failure to stop his truck when being chased by
        Deputy Bauer immediately subsequent to the homicide, nor for his failure to remain
        at the scene of the accident after crashing into a tree on the Cedar Creek Road.

        The foregoing prison sentence, including the restriction on parole eligibility, is
        imposed for the following reasons:

        1. The nature of the crimes involved, especially the homicide, require severe
        punishment.

        2. The foregoing sentences do not impose an undue hardship upon the Defendant or
        his family.

        3. The taking of a human life under the circumstances of this case requires the
        imposition of a drastic penalty.

¶10 We agree with the State. The District Court clearly imposed the parole eligibility
restriction because the heinous nature of the crimes, especially the killing of Kennedy's
wife, required "severe" and "drastic" punishment. The court also commented upon
Kennedy's lack of regard for the safety of anyone who got in his way when, after
repeatedly shooting his wife, he shot at an innocent bystander and pointed a weapon at a
law enforcement officer; Kennedy's failure to stop his truck when being chased by Deputy
Bauer immediately thereafter; and his failure to remain at the scene of the accident after
crashing into a tree.

¶11 We hold that the District Court's stated rationale for imposing the parole eligibility
restriction comports with the dictates of § 46-18-202(2), MCA. Affirmed.

                                               /S/ W. WILLIAM LEAPHART

                                                               We concur:

                                                        /S/ KARLA M. GRAY

                                                   /S/ TERRY N. TRIEWEILER


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                                                      /S/ PATRICIA COTTER

                                                      /S/ JAMES C. NELSON




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