State v. R. Soria

06/14/2022

DA 20-0497
Case Number: DA 20-0497

IN THE SUPREME COURT OF THE STATE OF MONTANA

2022 MT 117N

STATE OF MONTANA,

Plaintiff and Appellee,

v.

RICHARD JAMES SORIA,

Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC 18-1010
Honorable Gregory R. Todd, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Pete Wood, Attorney at Law, Boise, Idaho

For Appellee:

Austin Knudsen, Montana Attorney General, Jonathan M. Krauss,
Assistant Attorney General, Helena, Montana

Scott D. Twito, Yellowstone County Attorney, Jacob Yerger, Deputy
County Attorney, Billings, Montana

Submitted on Briefs: May 18, 2022
Decided: June 14, 2022

Filed:
c ir-641.—if
__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2 On July 20, 2018, Richard Soria unlawfully entered the home of B.H. and assaulted

her. The State initially charged Soria with nine offenses. Pursuant to a plea agreement,

Soria later pleaded guilty to Sexual Intercourse Without Consent (SIWC), under

§ 45-5-503, MCA; Aggravated Burglary, under § 45-6-204(2), MCA; and Partner or

Family Member Assault (PFMA), under § 45-5-206(1)(c), MCA. The State dismissed the

remaining charges. Soria now challenges his sentence, claiming error in the District

Court’s consideration at the sentencing hearing of information and evidence related to

Soria’s dismissed charges. Soria argues alternatively that his counsel was ineffective for

failing to object to this evidence. Soria also challenges his designation as a Level III sexual

offender and argues that the District Court erred in awarding restitution to the victim. We

affirm.

¶3 Soria and B.H. had been in a long-term relationship and have two children together.

In 2017, Soria was convicted of PFMA, and the court issued a twelve-month no-contact

order to protect B.H. and her children. On July 13, 2018, while the no-contact order was

in place, B.H. reported to the police that someone stole her cell phone and several other

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belongings from her vehicle and that she suspected Soria was responsible. Two days later,

Soria confronted B.H. outside her home and asked her to explain her whereabouts. When

B.H. realized Soria knew where she had been that day, she feared that Soria had been

tracking or following her. Police later found B.H.’s stolen cell phone under the spare tire

compartment in the trunk of her car. In the days leading up to the assault, Soria sent hostile

messages to B.H. and threatened to send explicit videos of B.H. to her co-workers. B.H.

later learned that Soria hacked her Facebook account and sent “revenge porn” videos to

her friends and co-workers.

¶4 On July 20, 2018, B.H. returned home around midnight and noticed that the sliding

glass door in her bedroom was open and that someone had stolen the clothes in her closet.

B.H. placed a baseball bat in the track of the sliding glass door to keep it from opening and

went to sleep. In the early morning hours, B.H. awakened to the sound of Soria pushing

the sliding glass door open. Soria held B.H. down on the bed, forcibly removed her

clothing, and digitally penetrated her vagina. B.H. reported that Soria pulled her clitoris

repeatedly and tried to penetrate her with his penis but was unable to get an erection. B.H.

attempted to call 911, but Soria took her cell phone and put it in his pocket. B.H. reported

that Soria cut off patches of her hair, kicked her in the face, and strangled her until she lost

consciousness. When she regained consciousness, Soria had left her house. B.H. found

some clothes to put on and drove with her kids to a friend’s house to call 911. When she

finally reached the hospital, B.H. underwent a Sexual Assault Nurse Examiner (SANE)

examination and Computed Tomography (CT) scans, and she gave a statement to the

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police. While B.H. was at the hospital, her friend found a GPS tracker on B.H.’s car and

turned that over to the police.

¶5 As the factual basis of his guilty pleas, Soria admitted only that on July 20, 2018,

he entered B.H.’s house unlawfully, digitally penetrated her without consent, hit her, and

caused her reasonable apprehension of bodily injury. He did not admit to any conduct

related to charges the State agreed to dismiss. Soria’s Probation Officer, Heather Edwards,

compiled a Presentence Investigation (PSI) report and recommended a Level II sexual

offender status. The PSI set forth the entire factual basis for the State’s charges against

Soria, including conduct he did not admit in his guilty pleas—primarily, stealing B.H.’s

belongings, pulling B.H.’s clitoris, attempting to penetrate her with his penis, and

strangling her.

¶6 Soria submitted a sentencing memorandum, which included an expert report from

Dr. Felice Gersh, a gynecologist and former OB/GYN professor, and a psychosexual

evaluation (PSE) that Licensed Clinical Social Worker Lisa H. Hjelmstad conducted before

Soria entered a guilty plea. Dr. Gersh opined that the medical evidence contradicted B.H.’s

account of the assault in that it did not establish that B.H. had been strangled. Hjelmstad

recommended a Level II sexual offender designation. Both Gersh and Hjelmstad had

access to the complete records from the case and recounted the same factual background

in their reports that was reflected in the PSI.

¶7 At the sentencing hearing, the State called Detective Denise Baum and Dr. Michael

D. Sullivan, who had conducted a second PSE after Soria pleaded guilty. Detective Baum

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testified to her investigation of the offense, including her observations of and conversation

with B.H. at the hospital, other persons she interviewed, Soria’s actions after the offense,

Baum’s subsequent conversations with B.H. about the “revenge porn” sent from the

victim’s Facebook account to her employers after the offense, B.H.’s fears that Soria had

not been caught yet, and B.H.’s ongoing pain in her neck from being choked. Detective

Baum also testified to events on the day of Soria’s arrest, including B.H. finding a note

from him on her windshield at work and being terrified to go to the daycare to pick up her

children without an officer escort. Finally, Detective Baum described the fruits of

searching Soria’s vehicle, including women’s clothes with blood on them and a ledger with

information confirming that it was he who had hacked B.H.’s Facebook and e-mail

accounts. Soria made no objection during any of the detective’s testimony. The State also

admitted through Detective Baum, without objection, ten photographs of the crime scene

taken during the investigation.

¶8 Dr. Sullivan testified to his evaluation of Soria and recommended a Level III sexual

offender designation because Soria met the criteria for a “sexually violent predator.”

Sullivan explained the process he used during the evaluation and some differences that

might account for the disparate recommendations: the seven-month gap between PSEs;

Soria’s guilty plea after the first PSE and before the second PSE; a mis-scored risk

assessment factor in the first PSE; and a slight difference in scores on the “Stable-2007”

scale, which measures treatment needs and likelihood of recidivism.

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¶9 Soria did not call any witnesses. The court heard B.H.’s written victim impact

statement, the State’s and Soria’s recommendations, and Soria’s allocution. The court

designated Soria a Level III sexual offender and sentenced him to a total of 40 years’

incarceration, none suspended.

¶10 Soria challenges the District Court’s reliance on allegations and evidence that

pertained to his dismissed charges. He argues that the court violated his procedural and

substantive due process rights; that the State violated the plea agreement by presenting

evidence of charges it had dismissed; and that his counsel was ineffective for failing to

contemporaneously object to the admission of this evidence.

¶11 We review criminal sentences for legality to determine whether they are statutorily

authorized. State v. Lodahl, 2021 MT 156, ¶ 11, 404 Mont. 362, 491 P.3d 661. We review

de novo whether the State breached a plea agreement. State v. Lewis, 2012 MT 157, ¶ 13,

365 Mont. 431, 282 P.3d 679. Ineffective assistance of counsel claims raise mixed

questions of law and fact, which we also review de novo. State v. Heavygun, 2011 MT 111,

¶ 8, 360 Mont. 413, 253 P.3d 897.

¶12 “Whenever an investigation is requested by the court, the probation and parole

officer shall promptly inquire into and report upon . . . the circumstances of the offense”

and “the harm caused, as a result of the offense, to the victim.”

Section 46-18-112(1)(c), (e), MCA. The report also may include “prior criminal history”

and an “official version of the offense or offenses.” Section 46-18-112(2)(a), (c), MCA.

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¶13 A district court “is given a wide scope of inquiry in sentencing.” State v.

Klippenstein, 239 Mont. 42, 45, 778 P.2d 892, 895 (1989). The rules of evidence do not

apply to sentencing hearings. State v. Hill, 2009 MT 134, ¶ 20, 350 Mont. 296,

207 P.3d 307. “A trial court may consider the broad spectrum of incidents making up the

background of an offender in determining the proper sentence,” including the facts “leading

to the . . . charges” and “any evidence the court considers . . . probative[.]” State v. Baldwin,

192 Mont. 521, 524, 629 P.2d 222, 224 (1981) (citing § 46-18-101, MCA); State v. Mason,

2003 MT 371, ¶ 23, 319 Mont. 117, 82 P.3d 903 (citing State v. Collier, 277 Mont. 46, 63,

919 P.2d 376, 387 (1996)).

¶14 Because a defendant may not be sentenced based upon misinformation, however,

the court must afford the defendant an opportunity to challenge the accuracy of the

information. State v. Hocevar, 2000 MT 157, ¶ 101, 300 Mont. 167, 7 P.3d 329. “When a

criminal defendant contests matters in a presentence report, the defendant has an

affirmative duty to present evidence establishing inaccuracies.” Mason, ¶ 21.

Reliance on Evidence of Dismissed Charges

¶15 Generally, “we will not hold a district court in error based on an objection raised for

the first time on appeal.” State v. Coleman, 2018 MT 290, ¶ 7, 393 Mont. 375, 431 P.3d 26

(citation omitted). We permit a defendant to challenge a sentence for the first time on

appeal if the sentence was “facially illegal (i.e., of a type or character not authorized by

statute . . .)” or if the sentence was “facially legal but authorized by a facially

unconstitutional statute.” State v. Thibeault, 2021 MT 162, ¶ 9, 404 Mont. 476,

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490 P.3d 105 (citing State v. Lenihan, 184 Mont. 338, 342-43, 602 P.2d 997, 999-1000

(1979)) (other citations omitted). A sentence is illegal “if the sentencing court lacked

statutory authority to impose it, if the condition falls outside the parameters of the

applicable sentencing statutes, or if the court did not adhere to the affirmative mandates of

the applicable sentencing statutes.” State v. Bull, 2017 MT 247, ¶ 11, 389 Mont. 56,

403 P.3d 670 (citation omitted). “[W]hen a district court, if provided the opportunity to

consider the error now asserted on appeal, could nevertheless have imposed the same

sentence, the illegality requirement of the Lenihan exception has not been met.” Bull, ¶ 11.

¶16 At the sentencing hearing, Soria did not raise a single objection. He did not object

to the testimony of Detective Baum, to the exhibits depicting the crime scene, or to the

testimony of Dr. Sullivan. He did not object to the State’s introduction of facts related to

the dismissed charges; he did not present witnesses to refute the information in the PSI;

and he did not argue in the District Court that the PSI contained inaccuracies or that the

District Court should not rely on certain information within it. To the contrary, Soria relied

on the PSI in his sentencing memorandum and submitted expert reports that relied in part

on information in the PSI. At the conclusion of the hearing, defense counsel noted for the

record that he had reviewed the PSI with Soria and “did not have any changes or corrections

to that document.”

¶17 Soria argues for the first time on appeal that requiring him to rebut the State’s

allegedly unfounded allegations at the sentencing hearing violates his procedural and

substantive due process rights. He asks us to overrule precedent that permits introduction

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of evidence relevant to dismissed charges. See Walker, ¶ 21; Mason, ¶ 25; Collier,

277 Mont. at 63, 919 P.2d at 387; Baldwin, 192 Mont. at 524, 629 P.2d at 224. Soria also

argues that Montana’s sentencing scheme, as applied to him, is unconstitutional. But he

did not object in the District Court to his burden to rebut this evidence, did not argue that

the burden deprived him of a constitutional right, and did not raise his constitutional theory

in the District Court. He used the statements in the PSI to poke holes in B.H.’s allegations,

shared the same information with his own experts, and submitted B.H.’s version of the

incident through his expert reports. Soria submitted Dr. Gersh’s report to argue that B.H.’s

medical findings and subsequent behavior were not consistent with strangulation and “that

the physical harm here was not substantial.”

¶18 Finally, Soria contends that the sentence was unlawful because the District Court

considered some information from the investigation that was not included in the PSI. But

Soria’s sentences were within statutory parameters, and he does not contest that the court

could have imposed the same sentence without such consideration. We decline to review

Soria’s unpreserved claims on appeal. See Coleman, ¶¶ 8-9 (holding that the Court will

not review as-applied challenges to sentencing statutes for the first time on appeal); State

v. Youpee, 2018 MT 102, ¶ 11, 391 Mont. 246, 416 P.3d 1050 (declining review of

unpreserved challenge to sentence where the court did not exceed statutory mandates);

State v. Parkhill, 2018 MT 69, ¶ 16, 391 Mont. 114, 414 P.3d 1244 (declining to review

unpreserved as-applied challenge to sentencing statute); Bull, ¶¶ 15-16 (declining review

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of defendant’s parole restriction where its imposition was within the scope of the district

court’s statutory authority).

¶19 Likewise, Soria does not substantiate with reference to the record his claim that the

State violated the plea agreement by introducing B.H.’s allegations in their entirety. Again,

Soria presents a new argument for the first time on appeal. In his Sentencing

Memorandum, Soria’s counsel advised the court:

It is anticipated that the State will request a forty[-]year term of incarceration.
The justification for this sentence will likely center around the violent nature
of the crimes, as well as [Soria’s] past behavior toward [B.H.].

Soria acknowledged at sentencing, and again acknowledges on appeal, that the State

presented argument and evidence consistent with its stated recommendation in the plea

agreement—a twenty-year sentence for SIWC, a forty-year sentence for aggravated

burglary, and a one-year sentence for PFMA.

¶20 The State argued to the sentencing court that Soria’s sentencing recommendation of

a twenty-year prison term

really does not properly encapsulate either the harm done to the victim or the
danger presented by the defendant to this community. In fact, it really only
holds the defendant accountable for committing one crime, sexual
intercourse without consent. The aggravated burglary portion of this offense
is subsumed into that recommendation as suspended time and run[s]
concurrently with Count 1. It’s almost as though, under the defendant’s
recommendation, that count has been dismissed.

Soria responded that the State’s recommendation was similar to what would be imposed

for deliberate homicide and that his recommendation accounted for the defendant’s

individual circumstances and comparable sentences imposed for similar crimes. He did

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not object to the District Court’s consideration of any evidence that could be “relevant to

the disposition.” See Hill, ¶ 27 (citation and quotation omitted). Soria has not

demonstrated that the State breached the plea agreement.

Level III Sexual Offender Designation

¶21 Soria argues for the first time on appeal that the District Court’s imposition of a

Level III sexual offender designation was illegal and an abuse of discretion. Soria contends

that the court made no findings to support designating him a “sexually violent predator”

and ignored the recommendation for a Level II designation in the first PSE even though

the scored results of both PSEs were substantially similar.

¶22 We review a district court’s designation of a sexual offender level for abuse of

discretion. Hill, ¶ 22. The district court designates a sexual offender level in its discretion

and is not required to accept the recommendation of a PSE. Hill, ¶ 42. “A district court

abuses its discretion when it acts arbitrarily without employment of conscientious judgment

or exceeds the bounds of reason, resulting in substantial injustice.” Hill, ¶ 42 (citation and

quotation omitted).

¶23 “Upon sentencing [an] offender, the court shall[] . . . designate the offender as level

1, 2, or 3[] and . . . designate a level 3 offender as a sexually violent predator.”

Section 46-23-509(3)(b)-(c), MCA (2019).1 A Level III designation is appropriate when

“the risk of a repeat sexual offense is high, there is a threat to public safety, and the sexual

offender evaluator believes that the offender is a sexually violent predator.”

1
Because § 46-23-509, MCA, was amended, we use the version in effect at the time of sentencing.
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Section 46-23-509(2)(c), MCA (2019). A “sexually violent predator” is a person who “has

been convicted of . . . a sexual offense and who suffers from a mental abnormality or a

personality disorder that makes the person likely to engage in predatory sexual offenses.”

Section 46-23-502(11), MCA. A “mental abnormality” means “a congenital or acquired

condition that affects the mental, emotional, or volitional capacity of a person in a manner

that predisposes the person to the commission of one or more sexual offenses to a degree

that makes the person a menace to the health and safety of others.” Section 46-23-502(2),

MCA. A “predatory sexual offense” means “a sexual offense committed against a stranger

or against a person with whom a relationship has been established or furthered for the

primary purpose of victimization.” Section 46-23-502(5), MCA.

¶24 Sullivan testified at the hearing that both PSEs diagnosed Soria with borderline

psychopathy and explained some of the possible explanations for the disparate

recommendations in sexual offender levels. The second PSE concluded that Soria’s

offense may be classified as an “anger retaliatory rape”—a situation in which the offender

is exacting “perceived justice or getting even with a woman for real or perceived wrongs.”

Sullivan testified that the term “anger retaliatory rape” is a descriptive term used to

conceptualize the motivation and the dynamics of a sexual offense. He said the term was

coined by behavioral scientists and is one of numerous “profiles” of a person who commits

a sexual offense. Sullivan further testified that he believed Soria met the statutory

definition of a sexually violent predator as someone who “establish[ed] or further[ed] a

relationship for the purpose of a sexual offense.”

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¶25 The second PSE characterized Soria as “a high risk sexual and violent offender,”

stating that “he appears to have stalked the victim and assaulted her violently and sexually

while a no-contact order was in place.” (Emphasis omitted.) It utilized three risk

assessment scales to make a prediction regarding Soria’s likelihood of recidivism. The

first of these tests diagnosed Soria as a “moderate” risk. The second test placed Soria in

the “high needs group,” meaning the likelihood of sexual recidivism is 36% over five years

and the likelihood of violent recidivism is 42% over five years. The third test placed Soria

in the 90th percentile of risk groups, where the likelihood of violent (including sexual)

recidivism is 58% over five years and 78% over twelve years.

¶26 The District Court noted that Soria’s psychological finding in the PSEs was

“significant” and that Soria was at risk of reoffending. Based on Sullivan’s report and

testimony, we conclude that the Level III designation in Soria’s case was not illegal. The

District Court did not act arbitrarily without employment of conscientious judgment or

exceed the bounds of reason when it designated Soria a Level III offender.

Ineffective Assistance of Counsel

¶27 To prevail on his IAC claim, Soria must establish that (1) his counsel’s performance

was deficient, and (2) the deficient performance prejudiced his defense. See State v.

Haldane, 2013 MT 32, ¶ 32, 368 Mont. 396, 300 P.3d 657. Soria contends that his

attorney’s failure to object to evidence of the dismissed charges in the PSI and at the

sentencing hearing was deficient. But he also acknowledges that an objection on this

ground would have contradicted clearly established precedent. Because we have long held

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that a sentencing court may consider all circumstances of the offense when sentencing a

defendant, an objection would not have been well-taken. See State v. Walker,

2007 MT 205, ¶ 21, 338 Mont. 529, 167 P.3d 879; Mason, ¶ 25; Collier, 277 Mont. at 63,

919 P.2d at 387; Baldwin, 192 Mont. at 524, 629 P.2d at 224. Soria’s counsel’s lack of

objection on these grounds did not constitute deficient performance. See State v. Howard,

2011 MT 246, ¶ 26, 362 Mont. 196, 265 P.3d 606 (“Counsel’s failure to object does not

constitute ineffective assistance when the objection lacks merit and properly would have

been overruled”).

¶28 Soria also has not shown that counsel’s objection, had he made one and the court

sustained it, likely would have changed the outcome of the proceeding. See Haldane, ¶ 37.

Despite the District Court referring to some conduct Soria did not admit, Soria has not

demonstrated that, had counsel objected to evidence of or reliance on such conduct, the

court likely would have imposed a different sentence. The sentence imposed was the same

sentence Soria knew the State would recommend. And even the report of his own expert,

Lisa Hjelmstad, suggests that the court would have accepted the State’s sentencing

recommendation regardless of the evidence to which Soria now objects. Hjelmstad’s

evaluation occurred before Soria entered his plea and did not accept as true the victim’s

allegations, which Soria declined to discuss. Nonetheless, based on her comprehensive

testing and the past conduct that he did acknowledge, Hjelmstad concluded, among other

findings, that Soria:

is in the highest risk category for likelihood of re-offense specific to intimate
partner violence[;]

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 . . .

is in the highest risk category of the 7 risk categories for the likelihood of
re-offense specific to domestic assault. Only 6% of known domestic violence
perpetrators fall in this category; 94% score lower. 74% of perpetrators in
this category commit another assault against their partner or a future partner
that will come to the attention of law enforcement within an average of 5
years[; and]

. . .

acknowledged [violent behaviors that include] physical and emotional abuse.

She also found “indication at the time of the alleged offense and prior to Mr. Soria's arrest

that he did in fact pose a lethal risk of harm to his partner.” When discussing Soria’s history

of domestic violence, Hjelmstad noted that, in addition to causing physical injury, Soria

“exacted [emotional injury] in callous and detached ways with no regard for impact on his

victims.” She found “[s]ignificant intimate partner violence signaling imminent harm[.]”

¶29 Explaining its reasons for the sentence, the District Court not only discussed the

events of July 20, 2018, but also noted Dr. Sullivan’s “significant” finding that Soria was

“at the low end of the psychopath range,” the “reign of terror” Soria had committed against

B.H. over the course of a week (both before and after the night of the offenses), and that

B.H. would “suffer a lifetime of emotional trauma.” With or without the alleged

“misinformation” or inaccuracies Soria claims the court unfairly considered, the

uncontested information before it at the time of sentencing likely would have led the court

to impose the same sentence. See State v. Finney, 281 Mont. 58, 63, 931 P.2d 1300,

1303-04 (1997) (noting that “an abundance of other evidence,” not just the evidence

15
challenged by the defendant, supported the sentence). We conclude that Soria has not

demonstrated ineffective assistance of counsel.

Restitution

¶30 Soria asserts that the District Court erred in ordering him to pay $608.14 in

restitution to B.H. because she did not testify or provide an affidavit describing her loss, as

required by statute. The State concedes that the District Court granted restitution without

a victim affidavit or testimony; it argues, however, that Soria failed to object to the

imposition of restitution at the sentencing hearing.

¶31 We review restitution awards de novo as mixed questions of law and fact. Lodahl,

¶ 11. To recover restitution, a victim who has sustained a pecuniary loss because of a crime

must submit “an affidavit that specifically describes the victim’s pecuniary loss and the

replacement value in dollars of the loss.” Section 46-18-242(1)(b), MCA. We have

declined to review an argument that restitution was imposed without a supporting affidavit

when the defendant failed to raise it in the district court. See, e.g., State v. Johnson,

2011 MT 286, ¶ 14, 362 Mont. 473, 265 P.3d 638; State v. Schmidt, 2009 MT 450, ¶ 75,

354 Mont. 280, 224 P.3d 618.

¶32 Soria concedes that Johnson and Schmidt are on point but asks this Court to overrule

them because a court may not impose a condition of sentence when it lacks the statutory

authority. Citing City of Kalispell v. Salsgiver, 2019 MT 126, ¶ 33, 396 Mont. 57,

443 P.3d 504, he contends that the absence of a victim affidavit made this an illegal

sentence, which the court lacked the power to impose. Unlike Salsgiver, however, where

16
there was no statutory basis for the imposition of a contract fee or an interest rate on the

defendant’s fines, § 46-18-242, MCA, requires a court to impose restitution. See Salsgiver,

¶¶ 42-43. As it was within the District Court’s statutory authority to do so, Soria’s failure

to object to the court’s oral pronouncement of restitution at sentencing waives the issue on

appeal. See Johnson, ¶ 14.

¶33 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. Resolution of the

issues on appeal, many of which Soria failed to preserve, is controlled by settled law or by

the clear application of applicable standards of review. We affirm Soria’s conviction and

the District Court’s August 18, 2020 Judgment.

/S/ BETH BAKER

We Concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ INGRID GUSTAFSON
/S/ DIRK M. SANDEFUR

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