*1 525 MONTANA, Respondent, STATE OF v. Plaintiff Appellant. GARRIDO, GARZA JOHNNY 80-219. No. Submitted 1980. Nov.. Decided Jan. P.2d 1105. *2 Defender, Falls, Anderson, Great for argued,
Lawrence A. Public defendant and appellant. Gen., Helena, Asst. Atty. argued,
Mike Mark Greely, Murphy, J. Gen., Helena, Snyder, County Randall A. argued, Deputy Atty. Falls, and Great Atty., plaintiff respondent. the of the Court. opinion
MR. DALY delivered JUSTICE 1979, Garza Johnny defendant-appellant On September of Eighth in the District Court charged Garrido was Judicial of theft felony with two counts State of Montana District 45-6-301(1)(a), and the attorney MCA. The county under section subse Defendant plea agreement. defendant entered into and the Montana State Prison five years sentenced to quently offender. Defendant appeals. a nondangerous designated with two counts of charged felony theft under 45-6-301(1)(a), Thereafter, section MCA. defendant entered plea motions, of “not to each count. After various guilty” pretrial and county attorney defendant entered into a plea agreement (1) January The terms of the were: agreement defendant I, theft; (2) would Count plead “guilty” to felony State would information, theft; (3) dismiss II of Count its also felony defendant would recommend to the court he receive a deferred imposi sentence; (4) tion the county would attorney make no recommen (5) dation as to sentencing; would county attorney indicate at the time of defendant had with the cooperated police other authorities in this cause and in other causes before the pending District Court. of the on January
Pursuant to terms agreement The District Court accepted defendant Count I. pleaded “guilty” State of the defendant’s and the dismissed Count II plea informa- *3 The set for 1980. Defendant sentencing February tion. court the for submitted himself to and probation parole department then a interview and presentence investigation.
Prior a to sentencing was submitted to the presentence report court. Defense counsel received a of the copy presentence report stated, which “all law enforcement records The agency attached.” presentence report concluded that defendant by recommending receive a three-year deferred of sentence. imposition 5, 1980,
At the on February to the pursuant terms of the the plea agreement, State advised the court that defendant had fully cooperated law police enforcement authorities and that his a had resulted cooperation in conviction in another case.
Defense counsel also advised the court defendant ac- basically cepted the recommendation of the The court presentence report. then sentence imposed stating: “It is the of this you court judgment be sentenced to the Montana State for a Prison of five period years. the For of of found purpose eligibility you are to be a non- parole, “No, offender. dangerous further?” Anything sir.” The the Great Falls Tribune day, February following a for stating the court’s reasons the printed story imposing was the sentence. The stated that defendant in business of court Defendant, counsel, his then racket-style household thefts. through to reconsider the sentence moved the court in combined motion his The was based to withdraw motion "guilty” plea. and/or that the article in the Tribune articulated the court’s grounds sentence, such for the whereas no reasons were reasoning imposing and his counsel. The articulated in court before defendant open of sentence indicated that reasons the given imposition in to this case from sources court obtained information regard court file and other than the facts matters contained in the in court. open record generated
A on February on the motion to reconsider held hearing was called as a author of witness. report The presentence The ask the ques- court then authorized defense counsel to tions it based regard to the information its sentenc- upon counsel, decision. Defense assumed that ing having police in- term law were not included within the “all en- vestigative reports records,” asked the court how it obtained infor- forcement agency five that defendant was involved in and three mation burglaries it asked defense counsel whether had thefts. court then copy of the Defense advised that he did have counsel reports. police and the court then exhibited of copies police reports, copies contained in its At that time defense counsel file. police reports the court received in- routinely copies police learned which were attached to reports generally copy vestigative counsel, but of the delivered defense report presentence are admits that his obtained generally defense counsel copies discovery.
The combined motion thereafter denied. *4 The issues are: presented appeal abused its discretion by 1. Whether the District Court imposing the basis for its sentence and without first articulating judgment decision.
529 2. Whether the failure to provide defendant with all information to the court supplied in the presentence denied report defendant the of effective right assistance of counsel. vested
A
is
sentencing judge
discretionary power
the extent of
be
determine
Peti
punishment
may
imposed.
305,
(1963), 143 Mont.
Defendant, however, challenges not so much the sentence as the manner in which was it determined. The foundation of his (1980), 225, 298, is v. challenge State 187 Mont. 609 P.2d Stumpf 673, which states a St.Rep. trial court is required to ar ticulate the basis which its upon discretion is exercised. alleges by not stating its reasons for imposing sentence, five-year the trial court abused its discretion. The holding however, has Stumpf prospective It was application only. 3, 1980, decided until April some time after this defendant was Yet, sentenced on February motion for granting reconsideration, it would that defendant had appear access to any facts he desire. may
It is well settled that this Court presumes the correctness of the lower court’s order on It is the appeal. burden of the appellant to overcome Lane, such (1977), presumption. State v. Jr. 198; Mont. 573 P.2d State ex rel. v. District Stephens Court (1976), 170 Mont. 550 P.2d 388. Defendant here has and, failed thus, to overcome the presumption has failed to meet his burden of proof. *5 was to effective that he denied right
Defendant alleges was with all informa because he not provided assistance of counsel was in the report. to supplied presentence tion However, he was in record reveals that possession the transcript claimed any This illustrates discrepancy all the police reports. was due to the court’s of informa withholding ineffectiveness and, thus, Rather, defense counsel failed to inspect reports tion. what was contained an incorrect assumption proceeded therein. his by
There is no evidence that defendant prejudiced Defendant has to reports. counsel’s failure inspect presentence in a to that he did not engage never or alleged attempted prove thefts or that he did not com “business” series of steal-to-order qr These were the reasons thefts and three burglaries. mit five caused sentence was and in the absence of any prejudice imposed, cannot be relief thereby, granted.
Affirmed.
MR. HARRISON and SHEEHY concur. JUSTICES MR. in and dis- concurring CHIEF HASWELL part JUSTICE senting part: by majority result reached concur with the
While I issue, from dissent I must respectfully to counsel regard right discretion. abuse of the issue of concerning the majority opinion of State v. Stumpf decline to the requirement The majority apply (1980), that the trial 37 St.Rep. 187 Mont. 609 P.2d deter sentence its underlying the reasons articulate court must is to have states that it of Stumpf expressly The holding mination. find majority reason the and for this only, application prospective Stumpf set forth in requirement the Yet the case inapplicable. therein, aside of setting in the resulting to the defendant applied the re was unaware of who a district judge sentence imposed quirement. us to to prior had been presented
If this defendant’s appeal and reached case, the same analysis we would have applied Stumpf ar- district to judges The reasons requiring the same result. exist, decisions regardless still ticulate the basis for their sentencing states with regard prospective application. of what Stumpf should be identical the result analysis issues are identical. The should be identical. dissents and will file a dissenting
MR. SHEA opinion JUSTICE later.