*1 MONTANA, JA- STATE OF Rеspondent Plaintiff REDDING, Appellant. NET MYRTLE Defendant No. 83-349. Dec., 1,
Submitted
1983.
Decided Jan.
Mike County Atty., Poison, Thomas Gen., Helena, Fredrick, John argument, Deputy County Atty., present Kragh, Poison, at respondent. plaintiff fоr and Opinion delivered the
MR. JUSTICE MORRISON Court. imposed Redding appeals sentence
Defendant Janet County District for Court, Judicial Lake District Fourth felony for District Court theft. We remand to the resentencing. Poison, found which she
Defendant took automobile Oregon, keys ignition, drove it to with driving speeding car. a stolen she arrested for was court-appointed Her Montana. She waived extradition to plea bargain attorney with the into a entered attorney county plead guilty and the was to which she three-year suspended sentence recommend a would hearing set, the time the conditions. At the given psychiatric evalu- that the defendant be State moved psychiatric sentencing. Springs The ation at Warm before subject severe that defendant indicates problems among рsychotic im- her aberrations, pulsiveness probably which led to the theft of the automobile. presentence report five-year
The recommended a sentence years suspended with two for the defendant. Prior to the sentencing hearing privatе the court held a conference with assigned officer who had been to write the presentence report. deputy county attorney entered finding the conference but on it was excused him- Apparently meetings self. such out-of-court occur Fоurth perhaps Judicial District and elsewhere. sentencing hearing
At the the court determined that there plea bargain, had been a and determined from the defend- right ant that she understood that she had the to withdraw by plea, plea her and that the court was nоt bound bargain. sentencing, Judge
In the course of his indicated that problems waiting she had had some with other cars while sentencing. county attorney He confirmed this with the at sentencing. Judge gathered the time of the had *3 probation presentencing formation from the officer in the regarding conference. No witnesses testified in court the problems although cars, the other the information did enter the record when counsel for the State volunteered the support presentence psychiat- information to a motion for a ric evaluation. accept joint
The court declined to the recommendations of attorneys years the and sentenced defendant to five prison years suspended. with two following appeal: May issue is raised on a district judge сonsider undisclosed information elicited in a presentence investigating prior conference with the officer sentencing? to presentence private
The State contends that a conference probation between the and the officer is appropriate procedure promote goal which will the dealing with defendant accordance with his individ- potentialities characteristics, ual circumstances, needs and
27
MCA.
procedure.
See Section
may that a
consistеntly
This Court has
held
private,
sentence on the basis of
out-of-court
(Mont.
Baker
investigation.
communications
1244;
1983),
St.Rep.
244,]
P.2d
[205
Greely
State ex rel.
Court
(1979),
District
180 Mont.
1104; State v. Stewart
(1977),
175 Mont.
590 P.2d
Kuhl v. District Court
1138;
(1961),
139 Mont.
P.2d
This Court has that due found misinformation, predicated cludes a on being sentence from imper- to be presentence procedures has found certain State v. Orsborn on 170 Mont. missible that bаsis. Kuhl v. District Court 513; supra. process protection In this to be case we find the due broader. exper- of the time and argued State has that because can devote to presentence investigating
tise that officers investigation, they provide their arе able to to the pertinent judges with an abundance of information sentencing determination.
However,
quality as
must be
consideration
before a sen-
quantity
placed
well as the
premise
on the
tencing judge.
system
Our
is based
confrontation,
debate characteristic
cross-examination
*4
elemental,
if
to its
not essential
system
of an adversarial
(1977), 430
v. Florida
Gardner
truth-seeking function. See
This of truth would unchallenged before the go information were allowed to infor- secrecy his chambers. Such sentencing judge оf may even inaccurate. misleading mation be or of of disclosure question Arizona considered a similar Pierce Ariz. presentence reports in case, Supreme 494 P.2d Court of Arizona that adopted Bar following recommendation of the Americаn Al- Sentencing Association’s Standards for Criminal Justice ternatives and Procedures: disclosure; parties.
“4.4 report: Presentence “(a) that requires Fundamental fairness to the defendant adversely the substance of which derogatory all information affects his аnd which has not otherwise been dis- interests in open closed court should be called to the attention of the defendant, attorney, acting his others who are on his behalf. . . .” requirement
We hold this is not that of disclosure merely required by fairness,” “fundamental but is com pelled by the guarantee process. constitutional of due this every person opportunity must be to ex plain, argue, any may and rebut information which lead to life, deprivation liberty property. Presentencing a criminal certainly case within categоry. falls that Such a requirement of is consistent with the disclosure in State v. Stewart reasoning expressed by Court 286, 305, 175 Mont. which held may that a conduct his own presentence investigation.
“This say acquire is not to the trial court cannot more only formation as to the circumstances of a crime. We hold so, that if delegate it is his desire to do he must re- sponsibility They gather to other officials. can the informa- to be made available to the de- tion put report it anything presentencing hearing, At fense. if may contested, be сross-ex- these then officials investigation amined as to the and the results their in-
29 added.) vestigation.. (Emphasis . .” policy protect- Consideration must also be ing policy the confidences of in informants. Such is found may language policy of Section MCA. That upheld by concealing necessary, long identities, be as given opportunity as the defendant is informed of to rebut the elicited from such informants. facts sentencing judge having case,
In this denies relied on subsequent in automobile troubles the de- parties agree reading fendant. However both that a fair transcript reveals that these troubles were a considera- tion of the court. Kragh, Now,
“THE COURT: Mr. I understand that this awaiting Defendant has been in trouble while she’s been couple cars; with a of more is that correct? true, “MR. KRAGH: That’s Your Honor. probation,
“THE COURT: When she was on she commit- crime; ted this is that correct? yes.
“MR. KRAGH: California, Out of “THE COURT: Yes. you probation you
“Well, case, in were on when com- any mitted this act. You have not been convicted of other apparently, ques- then, but, acts since there has been some concerning Certainly, object tion other vehicles. it is the to people prevent sending rehabilitate and to crime without possible. jail token, them to if But the same the citizens right person property.” have be safe their and in thеir transpired What conference is It unknown. apparent, sufficiently however, is impressed that the officer sentencing judge with the misdemeanor charges major so that it was a refusal of factor the court’s plea-bargained sentence recommеndation.
We hold that defendant was denied due be presentence cause the investigation conferred with the opportunity
officer behind doors where no argument, explanation. rebuttal, requiring derogatory inf The rule disclosure of all or- 30 ex- argument, dеfense, opportunity for
mation to prospectively. applied purely rebuttal can be planation, of new application retroactive limiting factor major further application would is whether such principles of law v. LaRoque rule. and effect of the purpose or retard the Lin- 1059; 315, (1978), Alley State and 1731, S.Ct. v. 381 U.S. kletter Walker (1966), 382 U.S. 601; L.Ed.2d United States Tehan v. Jersey New Johnson 453; 86 S.Ct. 15 L.Ed.2d 16 L.Ed.2d 384 U.S. guar- is to stated here and effect of the rule purpose *6 due of constitutional antee the full effectuation sentencing before the of accurate information guarantees witnesses, representa- of adverse judge, confrontation tion of counsel. misinfor- possibility of guards against
While this rule free to avail mation, by of discretion and abuse sit- encompasses it also himself of оut-of-court quite is possibilities danger of such uations in which the non-preju- small, insignificant as when the information Thus, best effectuated purposes of the rule are dicial. before only; sentences rendered application by prospective infor- only if the overturned of this will be the date decision prejudicial. inaccurate or mation is shown to be resentencing. Court for to District The cause remanded JUSTICES and MR. HASWELL MR. CHIEF JUSTICE concur. SHEA and SHEEHY GULBRANDSON, dissenting.
MR. JUSTICE I respectfully dissent. v. Stewart relies, upon part, opinion majority Stewart, Orsborn. this Court stаted: our adherence we reaffirm emphasize that
“[w]e Orsborn, supra, quoting from stated sentencing policy 1079, 1083, 93 York, v. New 337 U.S. Williams 1337, 1342: L.Ed.2d “ ‘ *** not essential —to relevant —if Highly [the judge’s] appropriate posses- selection of an sentence is the sion possible concerning of the fullest information the de- concepts And modern fendant’s life and characteristics. dividualizing punishment more have made it all necessary that a be denied an oppor- tunity to pertinent by obtain a requirement rigid adherence to restrictive rules evidence properly ” applicable at the triaV added.) (Emphasis 286, 305-6, Mont. 1149. Orsborn, this Court stated:
“A convicted defendant still has process guarantee a due against a predicated sentence on misinformation. The real question before us then is whether defendant received the protection. (1)
“Here: represented Defendant was by counsel at the time the sentencing was made known to him. [Citations omitted.]
“(2) He had the opportunity to rebut [Ci- tations omitted.]
“(3) Defendant chose to affirm accuracy infor- of the mation. [Citations omitted.]
“Thus, any danger of utilizing misinformation sentenc- ing was thus averted judge.” the trial 555P.2d
The factual situation here is similar to that in Orsborn: (1) The defendant Redding represented by counsel at the time the sentencing information was made known to her.
(2) She had thе opportunity to rebut the information. record discloses pre-sentence the report, investigation with a recommended year sentence of five sus- two pended, was April 6, Thereafter, filed on addi- two tional charges of unauthorized use of a mоtor vehicle were filed against the court, in in justice peace defendant of the county, the same April State moved on for order for psychiatric examination of the defendant. Defense present counsel was and objected to said оrder. The sen- tencing It hearing was not held until June 1983. would appear, therefore, pending that defense counsel knew of the additional charges against period the defendant for of more weeks, dispute accuracy than six in of fact did not the the information at or later.
(3) Orsborn, accuracy the defendant chose to affirm the Here, of the deny information. the defendant did not the accuracy guilty pleas of the later entered to the additional of charges according to counsel at the time oral argument appeal. the read,
Section in pertinent part: MCA (1) “Availability report of to defendant and others. may, discretion, his make investigation the others, parts of it available to defendants or while con- cealing identity persons the who сonfidential If identity person information. the court discloses discretion, provided information, who may, his allow the defendant to cross-examine those who rendered . . .” view, my majority impliedly has ruled Section 46- 18-113, MCA, proce- referring unconstitutional without dure outlined therein.
Here, sentencing judge gave the exact sentence recom- prior mended in pre-sentence investigation, filed dispute additional charges, and defense counsel does accuracy of the information obtained. I would affirm the denial of defendant’s motion rehear- ing sentencing. on
MR. JUSTICES HARRISON concur. and WEBER