Cavanaugh v. CristCavanaugh v. Crist
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- Before:
- Harrison
delivered the opinion of the Court.
This is an original application for a writ of habeas corpus in which petitioners James Cavanaugh and James Mesler jointly challenge the constitutionality of
James Cavanaugh received concurrent sentences of one hundred years and twenty years for aggravated kidnapping and aggravated assault. James Mesler was sentenced to ten years for robbery. The district judges imposed the restrictions of
The application for habeas corpus relief alleges that
This Court will address only the issue of whether the restrictions on petitioners’ parole and prisoner furlough eligibility imposed pursuant to
In 1977, the legislature amended section 95-2206, R.C.M.1947, which set out the sentencing options available to a district judge by adding subdivision (3)(b). See Chapter 580, Laws of 1977. That provision, now
“Whenever the district court imposes a sentence of imprisonment in the state prison for a term exceeding 1 year, the court may also impose the restriction that the defendant be ineligibile for parole and participation in the prisoner furlough program while serving his term. If such a restriction is to be imposed, the court shall state the reasons for it in writing. If the court finds that the restriction is necessary for the protection of society, it shall impose the restriction as part of the sentence and the judgment shall contain a statement of the reasons for the restriction.” (Emphasis added.)
The clear effect of
Petitioners contend that
Petitioners rely on decisions involving sentence enhancement statutes and cite Specht v. Patterson (1967), 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326, as controlling. In Specht the defendant was convicted of “indecent liberties” under a Colorado statute which carried a ten-year maximum sentence. The defendant, however, was sentenced under the state’s Sex Offender Act which permitted an indeterminate term of from one day to life. His sentencing followed a separate commitment proceeding conducted pursuant to the act, to determine whether the defendant constitutes a threat of bodily harm to members of the public, or is an habitual offender and mentally ill. The defendant was not given notice or an opportunity to be heard as to that determination and argued that the due process clause was therefore, violated. The Supreme Court agreed.
The Court found in Specht that the Colorado act required the trial court to determine a fact that was not an ingredient of the charged offense and compared the act’s proceedings to “those under recidivist statutes where an habitual criminal issue is a ‘distinct issue’ ... on which a defendant ‘must receive reasonable notice and an opportunity to be heard.’ ” Specht v. Patterson, 386 U.S. at 610, 87 S.Ct. at 1212. The Court ruled where such commitment proceedings are involved, due process requires the defendant to be present with counsel, to have an opportunity to be heard, to confront witnesses against him, and to present witnesses of his own.
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Due process standards are required where a sentence is to be enhanced on the basis of a psychiatric evaluation and past behavior and pursuant to a separate act (as in
Specht).
It is not required for
The Montana statute does not permit enhancement. It insures that the length of the penalty enacted by the legislature and imposed by the court is carried out. The restriction on parole and furlough eligibility permitted by
Petitioners further contend that
*279 District Courts are required to determine whether the full restriction on parole and furlough eligibility is necessary for “the protection of society” when a person is sentenced after conviction. This matter is not an element of determining whether the underlying offense was committed. After conviction, such considerations as to “protect society from the actions of the guilty” is a matter of the ordinary course of sentencing proceedings.
The source of the constitutional doctrine sanctioning the traditional relaxation of trial standards is Williams v. New York (1949), 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337. In Williams the defendant was convicted of murder and then sentenced to death, rather than life imprisonment, largely on the basis of background information contained in a presentence report prepared by probation authorities. He challenged the sentence because he had been given no opportunity to confront and cross-examine the witnesses who supplied the information in the report. The Supreme Court upheld the sentence and approved the trial judge’s use of such unchallenged evidence. It relied on a nonadversarial theory of penology in which punishment is individualized to fit the offender and not merely the crime. The sentencing judge should be concerned with obtaining as much information about the defendant as possible, the Court asserted, and most information that courts relied upon in the “intelligent imposition of sentences” would become unavailable if it could be obtained only in open court and subject to cross-examination. Williams, 337 U.S. at 250, 69 S.Ct. at 1084.
The Supreme Court allowed very broad judicial discretion, based on the principle that courts should not be encumbered by the procedural formality required at trial, this remains the rule. The Specht court classified Williams as “a case where at the end of the trial and in the same proceeding the fixing of the penalty for first degree murder was involved.” Specht, 386 U.S. at 606-607, 87 S.Ct. at 1210-1211. Here is a case where the admissions of guilt and the fixing of the penalties for the crimes admitted were conducted in the same proceeding. The judge in Williams, in sentenc *280 ing the defendant to death rather than life imprisonment, relied on the information in the presentence report. Since the Court in Specht specifically announced it would adhere to Williams, which permitted the judge to make such a finding on the basis of hearsay, then Williams is controlling in these facts. While the trial judge in Williams examined past events, he was doing so only to predict the defendant’s future behavior rather than impose a separate punishment for past actions. The same is true here.
Federal courts have consistently declined to extend full procedural due process protections to defendants whose sentences were enhanced by federal statute. In United States v. Bowdach (5th Cir. 1977), 561 F.2d 1160, the court rejected the argument that such proceedings must include an opportunity to have a jury determine the requisite facts. See also United States v. Stewart (6th Cir. 1976), 531 F.2d 326, cert. denied, 426 U.S. 922, 96 S.Ct. 2629, 49 L.Ed.2d 376; United States v. Holt (D.Tex. 1975), 397 F.Supp. 1397, affirmed in part and vacated in part, (5th Cir. 1975), 537 F.2d 845, cert. denied, 429 U.S. 1051, 97 S.Ct. 764, 50 L.Ed.2d 767; United States v. Neary (7th Cir. 1977), 552 F.2d 1184, cert. denied, 434 U.S. 864, 98 S.Ct. 197, 54 L.Ed.2d 139.
In Hollis v. Smith (2nd Cir. 1978), 571 F.2d 685, 693, the court said:
“There is no authority . . . which holds that the procedure in proceedings relating solely to punishment, even when an additional fact has to be established, must conform precisely to those in proceedings relating to guilt, and we see no basis in principle for so holding . .”
While there is no right to a jury trial on sentencing or compelled attendance of persons supplying hearsay information, Williams v. New York, supra, certain protections are necessary in ordinary sentencing. A defendant has the right to counsel in sentencing, Mempa v. Rhay (1967), 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336, and to have his sentence based on accurate information, Townsend v. Burke (1948), 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690. And, as this Court held in State v. Stewart (1977), 175 *281 Mont. 286, 573 P.2d 1138, 1139, a defendant has the right to be free from a district judge’s abuse of sentencing discretion. In addition, a district judge must now state reasons for the sentence he imposed in the record in every case. State v. Stumpf (1980), 187 Mont. 225, 609 P.2d 298.
Cavanaugh’s sentence and judgment shows that he appeared for sentencing, with counsel, approximately one month after entering pleas of guilty to the charged offenses. Cavanaugh was given the opportunity to present evidence in mitigation of sentence at the sentencing hearing, but in fact, presented no evidence. Cavanaugh was given the opportunity to address the court before sentence was imposed. He declined to do so. Material appearing in the presentence report, including his past felony record, was summarized by the court. Cavanaugh was asked if there was any legal cause why sentencing should not be imposed. He offered nothing.
Mesler’s record indicates likewise. Mesler, with the concurrence of counsel, waived a presentence report. He testified at the sentencing proceeding. Both petitioners were accorded all the procedural protections required by the court.
Petitioners contend that
Parole and participation in the furlough program, both of which relate to punishment, are privileges — matters of grace, not rights.
Lopez v. Crist
(1978), 176 Mont. 352, 578 P.2d 312, 314;
Petition of Hart
(1965), 145 Mont. 203, 206, 399 P.2d 984. The district judges did not deprive petitioners of a right when they decided that petitioners should be imprisoned with no possibility of
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parole or participation in the furlough program. The district judges withheld grace.
Petitioners also claim that
Finally, petitioners contend that
District judges, not county prosecutors, determine the punishment that is imposed following conviction. Petitioners’ allegation that prosecuting attorneys somehow induce district judges into restricting parole and furlough program eligibility ignores the plain language of the statute (“. . . the court may also impose the
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restriction . . .”). While a recommendation might be made in a given case that the full restriction permitted by
This Court finds the contention that excessive judicial discretion exists in permitting district judges to choose to fully restrict parole and furlough participation is without merit. A district judge is particularly well positioned to predict whether the restriction is necessary for the protection of society in light of the offender’s personal and criminal history, apparent willingness to conform his behavior to society’s rules, and other facts that are commonly weighed in sentencing.
For the reasons set forth petitioners’ application for a writ of habeas corpus is denied.
MR. CHIEF JUSTICE HASWELL and JUSTICES DALY and SHEEHY concur. Mr. Justice Daniel J. Shea will file a special concurring opinion later.