STATE OF MONTANA, Plаintiff and Appellee, v. JAMES SCOTT MORRISON, Defendant and Appellant.
No. DA 09-0194.
SUPREME COURT OF MONTANA
November 24, 2009
2009 MT 397 | 353 Mont. 407 | 220 P.3d 659
Submitted on Briefs October 21, 2009.
For Appellee: Hon. Steve Bullock, Montana Attorney General; Mardell Ployhar, Assistant Attorney General; Helena; John Parker, Deputy County Attorney; Joel Thompson, Deputy County Attorney; Great Falls.
JUSTICE RICE delivered the Opinion of the Court.
¶1 James Scott Morrison (Morrison) appeals from the sentence imposed by thе Eighth Judicial District Court, Cascade County, for his conviction of Partner or Family Member Assault in violation of
¶2 Did the District Court err by denying Morrison‘s motion to сontinue his sentencing in order to further review the presentence investigation report (PSI) and challenge its accuracy?
PROCEDURAL AND FACTUAL BACKGROUND
¶3 In July 2008, the State filed an Information in the Eighth Judicial District Court charging Morrison with Partner or Family Member Assault, a felony and his sixth offense; Aggravated Burglary, a felony; Criminal Mischief, a misdemeanor; and Disorderly Conduct, also a misdemeanor. On the State‘s motion, the District Court dismissed the Aggravated Burglary charge on November 25, 2008. Morrison later pled guilty to the Disorderly Conduct charge, and on December 9, 2008, a bench trial was held on the remaining charges. Thе District Court found Morrison guilty of Partner or Family Member Assault, Criminal Mischief, Disorderly Conduct, and ordered preparation of a PSI for sentencing. Two days before the sentencing hearing, Morrison‘s counsel received the PSI. The following day, concerned that the Circumstances of thе Offense section of the PSI recited facts relevant to the dismissed Aggravated Burglary charge and that the Criminal History section of the PSI was inaccurate, Morrison moved the District Court for a continuance in order to investigate and contest these provisions of the PSI.
¶4 At sentеncing, the District Court entertained arguments on Morrison‘s motion. Morrison argued that the PSI included facts pertaining to the dismissed Aggravated Burglary charge under the Circumstances of the Offense section, and challenged seven, and a possible eighth, conviction of the 28 convictiоns listed in the criminal history, asserting that these errors could negatively impact Morrison‘s future parole eligibility. The District Court struck the Circumstancеs of the Offense section, stating it would not rely on that information for sentencing, and denied the motion to continue. Further, the court offerеd Morrison the opportunity to question the PSI‘s author about preparation of the Criminal History section, and indicated that if the author‘s testimony gave reason to believe that section contained an error, the court would consider a motion to continue the sentencing. Morrison declined this offer, electing to proceed with sentencing. Morrison was sentenced to a seventeen year tеrm for Partner or Family Member Assault and concurrent six month and ten day terms
STANDARD OF REVIEW
¶5 A district court‘s ruling on a motion to continue is subject to the district court‘s discretion, and this Court reviews the ruling to determine whether the district court abused its discretion. State v. Anderson, 1999 MT 58, ¶ 10, 293 Mont. 472, 977 P.2d 315.
DISCUSSION
¶6 Did the District Court err by denying Morrison‘s motion to continue sentencing in order to further review the PSI and challenge its acсuracy?
¶7 Noting that constitutional due process rights protect a defendant from being sentenced based upon misinformation, Morrison argues that his rights were violated when his motion to continue sentencing was denied. He contends that the Criminal History section of the PSI is potentially inaccurate and that the Circumstances of the Offense section does not “represent what occurred at trial as the informаtion in that section related to facts for the aggravated burglary charge which the State moved to dismiss for a lack of evidencе.” He further maintains that because the parole board is required to consider all available and pertinent information about his offenses, the board may wrongfully rely on this information when considering a future parole request.1 Morrison asks that the denial of his continuance request be reversed and this matter remanded for resentencing.
¶8 The State counters that the District Court did not abuse its discretion when it refused tо continue sentencing “because the court addressed Morrison‘s objections to the PSI by striking the disputed language from the PSI and sentencing Mоrrison based on information that was not disputed.” The State further contends that Morrison waived his right to object to any inaccuracies in the Criminal History section of the PSI because he chose to proceed with sentencing rather than accept the court‘s offеr to cross-examine the author of the PSI about the Criminal History.
¶9 Taking up his argument about the Circumstance of the
¶10 Morrison also argues that the Criminal History section of the PSI was inaccurate because it included up to eight offenses of which he was not convicted or did not recognize. He maintains that the District Court‘s failure to grant his mоtion for a continuance to research the validity of this information was error, and again points to the potential impact upon a future parole hearing. However, the District Court offered Morrison the opportunity to question the PSI‘s author about the questioned offenses and indicated that it would consider a continuance if a problem was revealed. Morrison declined this offer, and thus waivеd his objection to proceeding to sentencing. As for the potential of being sentenced upon misinformation, the District Court stated it wоuld not consider the questioned offenses, but would be relying on the fact that Morrison‘s conviction for Partner or Family Member Assault was “his sixth conviction for that offense.” We thus conclude there was no abuse of discretion.
¶11 Affirmed.
JUSTICES NELSON, LEAPHART, COTTER and MORRIS concur.