State v. Barker , 2003 MT 32N ( 2003 )

No. 02-158
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 32N
STATE OF MONTANA,
Plaintiff and Respondent,
v.
LANCE JENSEN BARKER,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead, Cause No. DV-2001-576B
Honorable Katherine R. Curtis, Judge Presiding
COUNSEL OF RECORD:
For Appellant:
Lance Jensen Barker, pro se, Helena, Montana
For Respondent:
Honorable Mike McGrath, Attorney General; C. Mark Fowler,
Assistant Attorney General, Helena, Montana
Thomas Esch, County Attorney; Richard M. Hickel,
Deputy County Attorney, Kalispell, Montana
Submitted on Briefs: July 18, 2002
Decided: February 25, 2003
Filed:
__________________________________________
Clerk
Justice Jim Rice 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 Lance Jensen Barker petitioned the Eleventh Judicial District Court, Flathead County,
for postconviction relief from a criminal judgment based on an inconsistency between the
oral pronouncement of sentence and the written judgment and sentence. The District Court
denied the petition for postconviction relief, and Barker appeals. We affirm.
¶3 We restate the issue as whether the sentencing court’s use of the term “in aggrava-
tion” in its written judgment violates sentencing statutes and creates an unlawful inconsis-
tency with the sentence orally imposed.
¶4 Barker pled guilty to theft and forgery and was sentenced to five years in prison. In
its written judgment, the court referred to the sentencing hearing as “a hearing in aggravation
and mitigation of sentence.” The court further wrote:
In imposing this sentence, the Court finds in aggravation that the
Defendant has four prior felonies and that he has shown no remorse for the
thefts, has been non-compliant on probation, has previously been incarcerated
in Montana State Prison and he is still not successful in addressing his
chemical dependency issues and denies that he has a problem, continues to use
alcohol, and has not complied with treatment required for chemical depend-
ency treatment.
(Emphasis added.)
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¶5 Barker filed a pro se petition for postconviction relief on several grounds relating to
the court’s use in the written judgment of the words “in aggravation,” pointing out that the
court had not used those words at oral imposition of sentence. The District Court dismissed
Barker’s petition as a matter of law for failure to state a claim for relief. We review the
denial of postconviction relief to determine whether the district court’s findings are clearly
erroneous and whether its conclusions of law are correct. State v. Hanson, 1999 MT 226,
¶ 9, 296 Mont. 82, ¶ 9, 988 P.2d 299, ¶ 9.
¶6 Barker contends the District Court’s use of the words “in aggravation” in the written
judgment was erroneous in several respects. He contends he was sentenced unlawfully under
§ 46-18-303, MCA; that the written judgment does not conform to the sentence orally
imposed in violation of State v. Lane, 1998 MT 76, ¶ 48, 288 Mont. 286, ¶ 48, 957 P.2d 9,
¶ 48; and that he was entitled to be sentenced pursuant to §§ 46-18-201 and -225, MCA.
¶7 Section 46-18-303, MCA, describes aggravating circumstances in a death penalty
case. That statute is inapplicable here, where the death penalty was not a sentencing option.
Therefore, Barker’s declaration that the “aggravating” circumstances found by the District
Court in his case are not aggravating factors enumerated in § 46-18-303, MCA, is of no
consequence. Barker has not–nor could he have–established that the District Court invoked
the death penalty procedures set forth in § 46-18-303, MCA, merely by using the words “in
aggravation” in its written judgment. Moreover, factors “in aggravation” also are properly
considered in sentencing in non-capital criminal cases. See § 46-18-101(3)(d), MCA.
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¶8 Barker next asks “how much difference must exist?” before an oral and written
sentence conflict. He contends the District Court’s written findings “in aggravation” conflict
with his sentence as pronounced from the bench, in violation of Lane.
¶9 In State v. Johnson, 2000 MT 290, 302 Mont. 265, 14 P.3d 480, we discussed
whether any portion of a written judgment that fails to conform or in some manner conflicts
with an oral sentence renders the written judgment unlawful because of the inconsistency.
After reviewing the development of Montana’s case authority on this issue, including Lane,
we concluded that, to answer this question, we needed to determine two things: first,
whether the defendant was afforded the opportunity to respond to the allegedly inconsistent
matter in the written judgment upon sufficient notice at sentencing; and, second, whether that
portion of the written judgment substantively increased either the defendant’s loss of liberty
or his sacrifice of property. Johnson, ¶ 24.
¶10 Barker merely argues semantics by taking the position that the District Court’s use
of the words “in aggravation” in the written sentence implied additional factfinding or
different reasons for the sentence than those relied upon at the oral sentencing, or that the
factors cited were somehow impermissibly used against him as “aggravating.” The factors
to which the District Court referred as “in aggravation” in its written judgment were each
noted by the court at the sentencing hearing, and Barker had an opportunity to respond to
them at that time, as required under the first Johnson factor. As to the second Johnson
factor, Barker’s sentence in the written judgment precisely reflects the sentence orally
imposed. The court’s use of the words “in aggravation” in the written order but not in the
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sentence orally imposed simply does not create a substantive difference between the final
judgment and the court’s oral pronouncement of sentence.
¶11 Finally, Barker suggests that the District Court’s consideration of circumstances “in
aggravation” somehow interfered with its duty to impose sentence pursuant to § 46-18-201,
MCA, and to sentence him as a nonviolent felony offender pursuant to § 46-18-225, MCA.
He has neither identified nor established any specific failure by the court to meet the
requirements of these statutes. We will not consider unsupported arguments and are under
no obligation to locate authorities or formulate arguments for a party in support of positions
taken on appeal. See Rule 23(a)(4), M.R.App.P.; State v. Rodarte, 2002 MT 317, ¶ 15, 313
Mont. 131, ¶ 15, 60 P.3d 983, ¶ 15.
¶12 Affirmed.
/S/ JIM RICE
We concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
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