State v. R. Otto, 2017 MT 212

In June 2014, a 28‑year‑old Robert Lee Otto was found with a runaway who turned 13 during the week she spent with him; she reported repeated sexual activity including oral sex. Otto admitted some intercourse and that he "allowed" oral sex.
Otto pled guilty pursuant to a nonbinding plea agreement to one count of Sexual Intercourse Without Consent (based on oral sex); the State dismissed a second count. The plea recommended a 50‑year MSP term with 35 years suspended.
A Presentence Investigation (PSI) asked, "What reason do you have for your involvement in this offense?" Otto wrote he did not answer that question at his attorney’s request; he otherwise answered many PSI questions and admitted aspects of the offense.
At sentencing the District Court expressed concern about Otto’s lack of cooperation on the PSI, minimization of conduct, and lack of remorse, and imposed a 60‑year MSP term with 10 years suspended—departing from the plea recommendation.
Otto appealed, arguing the court violated his Fifth Amendment right to remain silent / against self‑incrimination by relying on his refusal to answer the PSI question in imposing sentence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the District Court violated Otto’s rights by referencing his refusal to answer a PSI question when sentencing	State: The PSI response evidenced lack of remorse and could be considered with other sentencing factors	Otto: Court punished him for invoking silence (or acting on counsel’s advice) in PSI, violating Fifth Amendment rights	Court: No violation — Otto never affirmatively invoked the privilege; the comment was passing and part of broader consideration of remorse/character; sentence affirmed

State v. Shreves, 313 Mont. 252, 60 P.3d 991 (recognizes courts cannot penalize exercise of right to silence at sentencing)
State v. Cesnik, 329 Mont. 63, 122 P.3d 456 (Fifth Amendment protections at sentencing; waiver by failure to invoke privilege)
State v. Rennaker, 335 Mont. 274, 150 P.3d 960 (lack of remorse may be considered at sentencing)
State v. Duncan, 343 Mont. 220, 183 P.3d 111 (protection of silence during sentencing reaffirmed)
State v. Fuller, 276 Mont. 155, 915 P.2d 809 (a defendant must affirmatively invoke the Fifth Amendment)
United States v. Monia, 317 U.S. 424 (Fifth Amendment invocation principles)
Driver v. Sentence Review Div. in the Sup. Court of Mont., 355 Mont. 273, 227 P.3d 1018 (courts may consider relevant evidence of offense and character at sentencing)
State v. Collier, 277 Mont. 46, 919 P.2d 376 (courts may consider background and probative evidence when sentencing)