State v. A. Twardoski, DA 23-0452

Background

Twardoski was convicted of multiple sexual offenses, originally sentenced to 50-year concurrent terms with treatment-based parole restrictions, and the Montana Supreme Court later reversed for a new trial because the first trial improperly barred defense evidence about a different abuser. 1
On retrial, the State dropped one count but again presented its case through I.A.'s testimony that Twardoski abused her through a 'Truth or Dare' game. 2
The State called APRN Mary Pat Hansen, who gave expert testimony that abused children are more vulnerable to later abuse and referenced a study suggesting prior abuse made a child about 47% more likely to be abused again. 3
Defense counsel did not object to Hansen's testimony and instead cross-examined her about whether repeat abuse is more often by the same offender or a different offender. 4
After retrial, the district court imposed the same 50-year concurrent prison terms, but added a 25-year parole restriction and relied in part on both psychosexual evaluations, the PSI reports, and the harm to I.A. 5
The Montana Supreme Court affirmed, while one justice concurred in part and dissented from the sentencing ruling, arguing the court relied on the invalid first verdict to increase punishment. 6

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ineffective assistance for failing to object to expert statistics 7	Twardoski says counsel should have objected to Hansen's 47% statistic as improper credibility bolstering.	The State says counsel may have made a tactical choice because the testimony was not clearly inadmissible.	Not reviewed on direct appeal; better suited for postconviction review. 8
Whether the added 25-year parole restriction was vindictive 9	Twardoski says the harsher sentence punished him for successfully appealing and retrial.	The State says the second judge gave logical, nonvindictive reasons based on the record.	No actual vindictiveness; sentence affirmed. 10

Key Cases Cited

State v. Twardoski, 491 P.3d 711 (Mont. 2021) (reversed first conviction because rape-shield ruling denied confrontation and complete defense 11)
State v. Quiroz, 502 P.3d 166 (Mont. 2022) (Strickland/IAC standard and inadmissibility of credibility-bolstering sexual-assault statistics 12)
State v. Secrease, 493 P.3d 335 (Mont. 2021) (Strickland prejudice and direct-appeal IAC review principles 13)
State v. Mikesell, 498 P.3d 192 (Mont. 2021) (direct-appeal IAC review depends on record explanation or lack of plausible justification 14)
State v. Sinz, 490 P.3d 97 (Mont. 2021) (distinguishes admissible educational testimony from inadmissible statistical false-reporting testimony 15)
State v. Brodniak, 718 P.2d 322 (Mont. 1986) (expert testimony on frequency of false accusations is inadmissible credibility commentary 16)
State v. Grimshaw, 469 P.3d 702 (Mont. 2020) (statistical testimony that effectively vouches for complainant credibility is improper 17)
North Carolina v. Pearce, 395 U.S. 711 (U.S. 1969) (judicial vindictiveness cannot play a part in resentencing after a successful appeal 18)
Alabama v. Smith, 490 U.S. 794 (U.S. 1989) (Pearce presumption applies only when vindictiveness is reasonably likely; otherwise actual vindictiveness must be shown 19)
Texas v. McCullough, 475 U.S. 134 (U.S. 1986) (different sentencer and on-the-record nonvindictive reasons can rebut vindictiveness concerns 20)
State v. Grimshaw, 578 P.3d 890 (Mont. 2025) (same-judge resentencing case discussing vindictiveness after retrial 21)
State v. Redfern, 99 P.3d 223 (Mont. 2004) (heavier sentence after successful attack on conviction can violate due process 22)
State v. Harris, 808 P.2d 453 (Mont. 1991) (expert may not directly or indirectly comment on a victim's truthfulness 23)
State v. Clausell, 106 P.3d 1175 (Mont. 2005) (strategic choice may avoid undue attention to prosecution evidence 24)
United States v. Valdez-Lopez, 4 F.4th 886 (9th Cir. 2021) (second sentencer need not rely on new facts, but vindictive reasoning would still be improper 25)