*1 STATE OF MONTANA, Respondent, Plaintiff and RICHARD SHREVES, EDWARD Appellant.
Defendant
No. 01-410.
on Briefs March
Submitted
20, 2002.
Decided December
MT
JUSTICE Opinion NELSON delivered the of the Court. (Shreves) Appellant Richard appeals Shreves the sentence imposed Court, on him the First Judicial District and Clark Lewis County. Shreves right against asserts the District Court violated his by basing self incrimination part his sentence in on his failure to show accept responsibility remorse or for his crime. We reverse and remand for resentencing consistent this Opinion. with following We address the issue on appeal: Did the District Court by basing its sentence right against self incrimination Shreves’
violate responsibility for his accept failure to show remorse on his crime? BACKGROUND AND PROCEDURAL
I. FACTUAL to the Court sentenced Shreves 18,2001, the District January On years, after years, parole no for 60 Prison for 100 with Montana State homicide of Walker guilty him of the deliberate jury finding verdict its assessment its sentence on The District Court based Byrd. past offender; on Shreves’ extensive dangerous is a violent Shreves it offense which violence; nature of Shreves’ history of on the killing; on Shreves’ cold-blooded, premeditated characterized as his actions. Based accept responsibility for remorse or failure to show a restriction on put Court also findings, the District on these same 46-18- society. See § parole eligibility for 202(2), MCA. and assert his testify on his own behalf trial, chose to At Shreves testify, but his counsel sentencing, chose not to At Shreves
innocence. presents the Because this case maintained his innocence. indicated he may inference drawn from a an adverse issue of whether hearing record discuss the sentencing, we silence at *3 silence in detail. regarding Shreves’ (Rasmussen), hearing, Rasmussen Gina At the testified investigation report, compiled presentence
person who the fact part recommended year sentence her 100 that she based testimony was as to her. Her not admit the crime that Shreves did follows: degree of time any lesser Attorney: youDo think County
Deputy appropriate? or incarceration that Mr. Shreves explained I to point. at this
Witness: Not accountability, very or remorse a motive without without it stands they do. And as do what people understand hard to the streets. now, not safe to be out on he’s correct, you am I Okay. part, You have in Defense Counsel: the fact recommendation, years, your term your have based offense? not admit to this Mr. does Shreves gauge hard to reasoning. It would be That is Witness: admitting any him without of rehabilitation any sense wrongdoing. he? Catch-22, though, isn’t sort of in He’s
Defense Counsel: too, is, him, by myself and explained Witness: He it was couple times. different you
Defense did use that as a factor? Counsel: So-but factor, I wishes Witness: I used as a but also used the of the family. victim’s any
Defense And other Counsel: were there factors? offense, history, Witness: The seriousness of the wishes of family, the victim’s and his refusal to take for the crime. Shreves, you
Defense Counsel: And when interviewed Mr. he was cooperative? And coherent...
Witness: Yes. telling you you
Defense Other than wanted to Counsel: what hear crime, right? about this Right.
Witness: Shreves’ counsel indicated that Shreves wanted to silent sentencing. She stated: Richard ... maintain Shreves continues to his innocence in this position matter.... I think it’s that he is in the placed unfortunate writing doing with the PSI that he has to something either currently says he still pays price he did do or he a greater legal that. He open be, does have avenues still that would him any those, if he pursue any were to choose to admissions he made, just simply get if he made admissions to a better officer, out certainly recommendation of the PSI it could impact contrary those further proceedings to his interests. So I wrong think it hold that him. I he can think still pursue appeal thing other avenues like that sort without having exercising legal to suffer for rights. those After hearing closing arguments, Court stated: Shreves, you
Court: do anything you say? Mr. have You want say anything. don’t have No,
Shreves: sir. Okay. Very good. going Court: I to impose parole am restriction. pre-sentence you why. doing need to tell I’m it based on the *4 investigation. for it and forgiving The law is those who deserve eligible, unforgiving are the for those who don’t. law also here, you’ve nothing And given as we sit us this happened. got appears what we’ve is what to be the So killing
premeditated an individual with no remorse or of your past you responsibility part. Your record shows shown dangerous parole individual. And I think a be violent Therefore, necessary protection society. for of for restriction is the you I Byrd, the homicide of will sentence to 100 deliberate Walker disagree And the years the Montana State Prison. I with county attorney. taking you life don’t think for someone’s should eligible going in 30 I’m double In parole years. be for So that. years you parole. for That eligible would will be added) (Emphasis restriction. order, District
In its later Court stated: foregoing following Court imposed sentence for offender, violent, dangerous is a reasons: the defendant and has cold-blooded, past; in the the nature of his offense was a been killing; responsibility premeditated to show remorse or failure parole set action-, his and a restriction must be on defendant’s for added) eligibility society. (Emphasis for the of asserting it improper now for the appeals Shreves his refusal to admit to the crime him in to hold determining his sentence. STANDARD OF
II. REVIEW only. This criminal legality sentence State Court reviews 11-15, 983 11-15, 295 288, Montoya, 1999 MT Mont. ¶¶ ¶¶ Although 11-15. asserts of discretion is State abuse ¶¶ and cites v. Richards proper standard opportunity Montoya support, 948 P.2d in its we took origins any regarding the standard review discuss confusion only legality clear review for and we for sentences. We made that we any an to the extent those cases used abuse overruled cases specifically Richards was cited discretion standard. While Montoya, opportunity to reaffirm that we review a we take legality only. sentence
III. DISCUSSION right against self Did the District Court violate basing on his failure its sentence in incrimination for his crime? show or accept remorse of the United States Constitution Under Fifth Amendment Constitution, II, defendants Article the Montana Section themselves in silent and not incriminate have the to remain
257
proceedings.
that
previously
criminal
We have
held
state
guarantee
right
to a
to remain
respect
with
defendant’s
as
silent affords the same
that under
the federal
256,
(1976),
260,
Armstrong
constitution. State v.
170 Mont.
552 P.2d
616,
part by
(1986),
503,
221
619 overruled in
State v. Johnson
Mont.
512-14,
1248, 1254-55; compare
719 P.2d
Fifth
“[No
Amendment:
shall
in
person]
compelled
any
against
be
criminal case to be a witness
himself’
II,
person
to Mont.
Art.
25: “No
compelled
Const.
Sec.
shall be
himself
testify against
However,
in a
proceeding.”
criminal
in
Johnson,
rights may
we held that Montana’s state constitutional
rights,
broader than federal constitutional
the language
even when
is
Johnson,
512-14,
similar.
address
preliminary
important
three
matters that are
in the context
First,
appeal.
of defendant’s
order
obtain the constitutional
protection against
incrimination,
general
self
rule is that a
defendant must
invoke
right
Fuller,
first
his
to remain silent.
160,
at
case,
Mont.
a there conflict written sentence when is a between the Lane, 76, 40, v. 286, 9, two. State 1998 MT 288 Mont. 957 ¶ ¶ case, during In this District Court stated the oral ¶ pronouncement parole was restriction based Shreves’ lack However, foregoing of remorse. later order stated “the written sentence,” interpret year which we here to mean the total 100 sentence restriction, parole large part
and the based in lack of Shreves’ here the oral remorse. We conclude that the distinction between sentence and the written sentence one without a difference because Court considered Shreves’ lack of remorse clear Therefore, general determining factor in the entire sentence. year and the restriction are parole entire 100 sentence guilt. significant part refusal to admit on Shreves’ Third, any court can consider evidence relevant crime, including relating to defendant’s evidence character, history, background physical mental and condition, any probative evidence the court considers to other have force. State Collier 919 P.2d Therefore, based on the evidence decision not *6 Court, rather on the District Court’s decision to base its but large specifically to to part sentence in on Shreves’ refusal admit the crime. Having matters, we turn to the preliminary addressed these now question the offirst presented-a impression
case law relevant to
issue
First,
recognize certain
rules that
for this Court.
we must
fundamental
bearing
example,
process
have
For
it is a violation of due
to
here.
punish
exercising
right.
Kelly
a constitutional
State v.
person
a
298,
641,
(1994),
301,
Furthermore,
P.2d
have
265 Mont.
876
we
holding
in
that a defendant’s silence at criminal
followed federal law
against
(1987),
him.
v.
trial cannot be used as evidence
State Wilkins
588, 589 (citing
(1965),
78, 81, 746
229 Mont.
P.2d
v.
Griffin California
106, 109).
609, 614,
1229, 1232, 14
380 U.S.
85 S.Ct.
L.Ed.2d
We have
privilege against
also
self incrimination “does not turn
held
invoked,
type
protection
in which its
but
upon
proceeding
the
and the
[rather]
the nature of
statement or admission
Fuller,
160,
Mont. at
self incrimination
259
argues
properly
The
that the District
crime.
State
a
considered
lack of remorse as
factor relevant
Shreves’
danger
community.
and the
he
to the
rehabilitation
argues
the District Court found Shreves lacked remorse
his trial
it.
on
the other evidence before
previously
We have
reversed sentences based on violation of the
Imlay (1991),
constitutional
to remain silent. In State v.
82, 91,
979, 985,
Mont.
813 P.2d
held that
it is a
we
person
the suspended
violation
revoke
sentence of a
who
refuses
guilt
therapy
Imlay
in a
program.
confess
sexual
We followed
Fuller
guilt
when we held that
confessions
additional
program
in a
therapy
required
crimes
sexual
as a
of his
condition
suspended sentence could not be
basis
subsequent
used
Fuller,
additional convictions.
411, however, though we affirmed a sentence even of District Court the defendant claimed the performed presentence counselor who sexual by recommending evaluation violated his to remain silent in part case, incarceration on his failure to admit to the crime. In that we held that the trial court did not base its decision the defendant’s guilt, dangerousness, refusal to admit rather on the defendant’s characteristics, presentence investigations, record, criminal conduct, psychological reports finding the defendant’s prospects of rehabilitation were slim. While we did address the fact *7 that finding of prospects defendant’s rehabilitation were slim guilt, was based in on the defendant’s refusal admit we did emphasize that there was sufficient for the basis sentence. Supreme
¶18 The United States has reversed Court also sentences based right example, violation of the to remain silent. For Estelle, the held the phrase Court that “criminal case” in the Fifth sentencing Estelle, Amendment includes the phase of a conviction. 451 U.S. at 101 at The on to that of S.Ct. Court went hold use psychiatrist’s a testimony competency from a pretrial interview violated to silence at because the given warnings defendant was The not Miranda before the interview. prove required noted that the an used element proven beyond to be a for reasonable doubt under Texas law death penalty In Mitchell 119 cases. v. United States 526 U.S. 1307, 143 a the Court reversed sentence where S.Ct. L.Ed.2d specific her on a fact district court held the defendant’s silence the federal length of the her sentence under determinative of sentencing guidelines. cases, cites to a number of other In contrast to these the State arguments
jurisdictions
have considered
similar to
These
hold
upheld the
sentences.
cases
position and have
defendants’
lack
as basis for a
may
that a court
consider
of remorse
refusing
Bergmann
See
may
guilt.
a
for
to admit
punish
defendant
(7th
1995),
1372, 1379;
States v.
65 F.3d
United
McCaughtry
v.
Cir.
(Ill.
(7th
1084, 1090;
1990),
People v. Coleman
Cir.
903 F.2d
Johnson
(Mich. 1987), 411
App.
1985),
335; People Wesley
v.
Ct.
N.E.2d
(Md.
However,
1995),
159;Jennings
maintained his innocence trial at large sentence in sentencing. Yet, the District Court based its silent at analogized lack remorse lack remorse and of part on Shreves’ here, stated, we sit Specifically, “[A]s the court to Shreves’ silence. The then why happened.” as to court you’ve given nothing us something “give” the court its sentence on Shreves’ failure to agree with State that happened. crime While we about sentencing and, to consider at important is an factor rehabilitation as a factor in agree of remorse can considered while we that lack be is based on a refusal to sentencing, uphold cannot a sentence that we system justice inquisitorial so reflect an guilt. To do would at 85 S.Ct. system. Griffin, U.S. rather than our adversarial Therefore, improperly hold the District Court at we pursuant to his maintaining innocence penalized Shreves silent. as trial can consider clear that the court holding, In so we make by any as evidenced lack remorse factor defendant’s trial, post- pre-trial, defendant made admissible statement may gleaned, without Moreover, lack ofremorse a defendant’s trial. of the offense commission more, from the manner competent other at trial or from by the evidence demonstrated sentencing hearing. at the admitted properly evidence grounded in and is is a narrow one of the case bar rule *8 protections the and federal self state incrimination. simply sentencing may is this: a court not draw It negative inference of lack of remorse from the defendant’s silence sentencing maintained, throughout proceedings, has the where he he the he he did not commit offense which stands convicted-i.e. that actually is innocent. sentencing upon To allow courts to do otherwise would force the
¶23 defendant the we Hobson’s choice discussed Fuller and which II, condemned Fifth the Amendment and Article Section 25-specifically, that the defendant must either incriminate himself (with sentencing hearing the to a he respect and show remorse crime commit) or, alternative, claims he did not in the stand his imposition greater remain silent and suffer the To of a sentence. compel constitutionally impermissible. that of a defendant
IV. CONCLUSION right against District Court violated Shreves’ self large incrimination when it based its sentence in refusal his to admit to crime and at sentencing. show remorse ¶25 We reverse and remand for resentencing consistent with this Opinion. GRAY,
CHIEF JUSTICE JUSTICES COTTER and LEAPHART concur. dissenting.
JUSTICE RICE I respectfully dissent. I agree legal provided by Court, with the reasoning the and the rule which results may therefrom: court consider lack of remorse, “may but it negative maintained, throughout not draw a the proceedings, that he did not commit offense which he stands disagreement convicted ....” I have no principle; with this application here, record, upon disagree. with which I simply whole, do not the conclusion draw from record as a does, imposed that the District Court sentence on the basis the Defendant’s silence. taking arguments counsel, After from court first say something,
asked the Defendant if he ‘You adding, wanted don’t Thus, say anything.” have to specifically acknowledged court declined, Defendant’s After the silent. Defendant court impose then stated that it intended a parole restriction based pre-sentence investigation. The PSI had devastating picture Defendant, concluding that he had not been actions,
required by previous to take family his further, “very poor,” were and most chances of rehabilitation (“he life has no significantly, that the Defendant did value human *9 another”) life had belittled the victim’s regrets taking about that”). stating “I’ma shot than This (quoting death Defendant as better certainly supported a conclusion that the Defendant lacked remorse or for the loss of human life. crime Then, the court stated: here, nothing happened. as to this you’ve given [A]s we sit us killing appears premeditated is to be the got So what we’ve what your or shown on of an individual with no remorse part. summing up the
I from comment that the court was understand right, to As been it. was evidence which had acknowledged nothing. He by court, the Defendant had offered PSI an alternative to its suggest offered no evidence to rebut the Thus, decision based court left to make a recommendations. was evidence, simple noting I of that upon the State’s and find court’s prosecutor argue can in trial that conclusion to be innocuous. Just opposition to the State’s witnesses the defense has failed offer comment a defendant’s being improper it considered an without Rodarte, silence, MT has permissible judge provided for a to state that the State sentencing certainly judge has not. A evidence and the defendant exists, longer of innocense no presumption entitled assume charged. That a of the crime guilty and that the defendant stands on these reflecting principles makes judge comments the sentence. should invalidate comments confirmed ofthe court’s My interpretation other factors which lack of remorse and judgment, the written cites nothing states about Defendant’s support of the that, It is to admit to crime. also notable
silence nor his failure it imposition sentence, the not state that during the court did oral or his upon the Defendant’s silence imposing a sentence based That is one which the to the crime. conclusion failure judge’s interpretation from its words. draws affirm. would