No. 79-46
I N THE SUPREME COURT OF THE STATE OF M N A A
OTN
1980
THE STATE OF MONTANA,
P l a i n t i f f and R e s p o n d e n t ,
VS .
STANLEY CHARLES OLSEN,
D e f e n d a n t and A p p e l l a n t .
Appeal from: D i s t r i c t Court of t h e Eighteenth J u d i c i a l District,
I n and f o r t h e County o f G a l l a t i n .
H o n o r a b l e J o s e p h B. Gary, J u d g e p r e s i d i n g .
C o u n s e l o f Record:
For Appellant:
P h i l l i p N. C a r t e r , Bozeman, Montana
F o r Respondent:
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
Donald W h i t e , County A t t o r n e y , Bozeman, Montana
S u b m i t t e d on b r i e f s : A p r i l 24, 1980
Decided: $UL 2 8 1980
Filed: 31~3
8 *m@
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
Defendant was convicted of the crime of burglary after a
jury trial in the Eighteenth Judicial District, County of
Gallatin. Defendant appeals both the judgment and the sentence.
In the early morning hours of May 26, 1979, Belgrade,
Montana, police officers spotted two persons acting suspicious-
ly near a parked vehicle. As the officers approached, one
person jumped into the automobile while the other fled on
foot, eventually eluding police. The suspect in the car, iden-
tified as Mary Donahue, was apprehended after a high-speed
chase. Later that same morning a number of chain saws were re-
ported missing from Tony's Equipment & Saw Shop in Belgrade.
Shortly thereafter, Mary Donahue gave an oral statement to the
police.
Defendant Olsen was arrested and identified as the second
suspect who had fled the scene hours earlier. A consent search
of the vehicle resulted in the recovery of eight chain saws.
The criminal information charged defendant with aiding and
abetting Mary Donahue in the commission of burglary. An amend-
ed information was filed six days before the scheduled June 26,
1979, trial date, charging Olsen with burglary as the principal
perpetrator of the alleged crime. Olsen was arraigned on the
new charges, and trial was rescheduled for July 5, 1979. The
jury convicted Olsen of the crime of burglary, and the trial
judge sentenced him to ten years at the Montana State Prison,
without any possibility of parole or participation in the
prison furlough program.
Defendant raises two issues on appeal:
1. Is section 46-11-403(1), MCA, which permits an in-
formation to be amended once as to substance up until five days
prior to trial without leave of court, unconstitutional in that
it does not require a judicial examination to make such a sub-
stantive change?
2. Was the sentence and judgment in this case proper?
This Court recently resolved the first issue in State v.
Cardwell (1980), - Mont . - 609 P.2d 1230, 37 St.Rep. 750,
,
wherein we held that section 46-11-403(1), MCA, was indeed un-
constitutionaland that we were therefore obliged to reverse
the defendant's conviction due to the effect that statute had
on defendant's right to a fair trial. Any statute allowing the
amendment of a criminal information without leave of court is
in conflict with Article 11, Section 20, 1972 Montana Constitu-
tion, and must be declared invalid. State v. Cardwell, 609
Accordingly, the decision in Cardwell is binding on the
issue of the constitutionality of section 46-11-403(1), MCA.
We do not, however, find ourselves required to summarily re-
verse the convictions of the District Courts where this statute
was relied upon, without first concluding that the use of the
invalid statute prejudiced the defendant's case and interfered
with his right to a fair trial. Each case must be reviewed
and decided on its own facts. As this Court ruled in State v.
Armstrong (1977), 172 Mont. 296, 300, 562 P.2d 1129:
". . . Any error which does not affect the
substantial rights of the defendant consti-
tutes 'harmless error' and will not consti-
tute grounds for reversal on appeal. Section
95-2425, R.C.M. 1947. [Now section 46-20-701,
MCA.] Rule 14, M.R.App.Civ.P." (Emphasis
supplied. )
Moreover, we will not presume that the use of section
46-11-403(1), MCA, was per se prejudicial. The requisite
prejudice must be shown from the record as a denial of a
substantial right. State v. Gallager (1968), 151 Mont. 501,
445 P.2d 45, 47. See also State v. Walker (1966), 148 Mont.
216, 419 P.2d 300.
The record reveals that the original information charged
Olsen with aiding and abetting in a burglary. The amended
information charged the defendant with burglary as a principal
in the crime. Both theories went to the jury. The trial
court's Instruction No. 5 explained the offense of burglary,
and Instruction Nos. 14 and 15 defined the crime of aiding
and abetting. We specifically approved such a practice in
State v. Oppelt (1978), 176 Mont. 499, 580 P.2d 110, 35 St.Rep.
We take note of the fact that in Cardwell the amended
information was substantially different from the original
information. In the case before us the crimes charged in the
informations both may lead to the same punishment, and because
both theories were placed before the jury there exists no
substantial departure from the original information that would
materially prejudice defendant's case.
When this Court overturned the amended information statute
in Cardwell, we examined two basic procedural safeguards that
were denied the defendant and which significantly affected his
right to a fair trial. The first was that a defendant should
receive a neutral determination of probable cause for detention
under the amended charges. As previously mentioned, the
amended information in Cardwell constituted a substantial de-
parture from what the defendant was originally charged with, and
the fact that a judge had not reviewed the new information was
greatly injurious to his right to a fair trial. We are not per-
suaded that the same injury took place here. Admittedly, Olsen
was entitled to have t.he amended information reviewed by a judge.
However, because the informations were based on the same set of
facts and because the charges involved were not significantly
different, we can find no prejudice to this defendant's rights.
The second procedural safeguard that was the basis of the
Cardwell decision was that of notice and opportunity to defend.
We agree that one of the purposes of a criminal information is
to notify the defendant of the offense charged and to give the
defendant a chance to defend against the new charge. State v.
Cardwell, 609 P.2d at 1233; State v. Tropf (1975), 166 Mont.
79, 88, 530 P.2d 1158, 1163; State v. Heiser (1965), 146 Mont.
413, 416, 407 P.2d 370, 371. Further, our decision in Cardwell
stood for the proposition that when an amended information
makes substantive changes in the charges against a defendant,
he should be arraigned under the new charges. State v. Cardwell,
609 P.2d at 1233; citing State v. Butler (1969), 9 Ariz. App.
162, 450 P.2d 128, 131; Hanley v. Zenoff (1965), 81 Nev. 9, 398
P.2d 241, 242.
In our review of the record in this case, it is apparent
that defendant was accorded every notice consideration, includ-.
ing arraignment on the amended information in open court on
June 20, 1979, a full sixteen days before his jury trial on
those charges. At no time following the filing of the amended
information and his arraignment on the new charges did defendant
express any desire for a continuance to make further preparation
for his defense. It is clear f : m the record that this de-
~c
fendant, unlike the defendant in Cardwell, received every
procedural consideration concerning notice and arraignment, and
that he was afforded sufficient time to prepare his legal de-
fense against the amended information. The use of section 46-
11-403(1), MCA, in no way prejudiced defendant's case or mater-
ially interfered with his rights to a fair trial.
Regarding defendant's second issue, the District Court
sentenced him to ten years in the State Prison. The sentence
further provides that defendant is not eligible for parole or
for participation in the prison furlough program, pursuant to
section 46-18-202(2), MCA. That section requires the judge to
set forth his reasons in writing for denying any possibility of
parole or furlough.
Defendant asserts that the sentence is improper because
the District Court relied on a presentence investigation report
that contained false and misleading information and was other-
wise prejudicial to defendant. The claims involve several
items on his F.B.I. "rap" sheet. He asserts that the court
erroneously relied on a 1954 felony conviction in the State of
Washington that was reversed, an Oregon felony conviction that
was reversed, and a felony conviction in Wyoming that was con-
stitutionally infirm. Olsen also contends that the length of
the "rap" sheet, four and one-half pages with some forty-five
entries, was prejudicial to the District Court sentence, insofar
as only sixteen entries reflect convictions.
This Court has adopted the rule expressed by the United
States Supreme Court in Townsend v. Burke (1948), 334 U.S. 736,
68 S.Ct. 1252, 92 L.Ed. 1690, that a defendant is entitled to
have his sentence predicated on substantially correct informa-
tion. State v. Knapp (1977), 174 Mont. 373, 570 P.2d 1138.
With regard to the Wyoming conviction, defendant properly
relies on United States v. Tucker (1972), 404 U.S. 443, 92 S.Ct.
589, 30 L.Ed.2d 592, which found a due process right to not
have sentencing based uponconstitutionally infirm decisions.
We are not convinced, however, that those rules are applicable
to defendant's case for the record does not bear out Olsen's
contention that the sentence was significantly grounded in
those convictions.
First of all, the District Court in its sentencing memo-
randum dated July 19, 1979, stated that ". . . on February 13,
1954, he was sentenced for 0-10 years, and the conviction was
apparently overturned." Thus, there can be no merit to the
argument that the court relied on the Washington conviction in
sentencing defendant.
Second, we take note of the fact that both the Wyoming con-
viction and the Oregon conviction are mentioned in the District
Court's sentencing memorandum. We are not persuaded, however,
in light of defendant's thirty-three years of criminal activity
in mostly theft-related areas, that the trial judge would have
altered the sentence in any way had those two convictions not
been considered. In view of defendant's extensive criminal
background and his numerous years in state and federal prisons,
this Court is constrained to find that defendant experienced
no material prejudice to his sentence or substantial inter-
ference with his rights because of the trial court's review of
these two convictions.
The rules applicable in this case have been settled in
Ryan v. Crist (1977), 172 Mont. 411, 414, 563 P.2d 1145, 1146:
"We hold that where it is shown improper
matters have been brought before the sentenc-
ing court for its consideration in sentencing,
and where those matters are not disclosed and
explained at the sentencing hearing, a de-
fendant has a right to be resentenced."
The record is clear that improper matters were brought
before the sentencing court as in Ryan; however, that is where
the similarity between Ryan and the case before us stops.
The record discloses that all three prior convictions
which defendant asserts prejudiced the sentencing court were
raised by defendant at the sentencing hearing. In Ryan, we
found that the matters were not disclosed or explained at the
sentencing hearing; however, in this case the convictions were
disclosed and discussed at the sentencing hearing by defendant
and his attorney. We conclade, therefore, that the sentencing
judge was fully aware of the problems with the prior convic-
tions at the time of sentencing.
Further, there is no evidence that the court actually re-
lied on the improper information found on the "rap" sheet.
After the improper convictions were discussed, the District
Court stated in its sentencing memorandum:
"However, pursuant to statute, I requested a
presentence investigation from the probation
officer and testimony was presented to the
court that was competent to show that Stanley
Charles Olsen, the defendant in this matter,
was a convicted felon and was convicted on
the following occasions:
"(a) Richland County, Montana, for burglary
on October 28, 1968, with eighteen years of
imprisonment;
"(b) United States Federal Court, Billings,
Montana, on May 9, 1975, for forgery and
counterfeit obligations.
"In addition, while the defendant has raised
the question of hearsay evidence in the pre-
sentencing investigation, while I'm not rely-
ing on the balance of the presentencing report
other than the testimony presented and examined
by the court above .
. ." (Emphasis supplied.)
This Court is required only to review the record estab-
lished below. Based on that record, we must find that the
rule in Ryan v. Crist, supra, is inapplicable to this case.
As a final assertion, defendant argues that the length of
the "rap" sheet was prejudicial in that only sixteen entries
resulted in defendant's conviction for the crimes charged.
We find the sentencing transcript on this matter conclu-
sive :
"Q. [The Court] Are there any other felony
charges on there that we have not addressed?
"A. [Defendant] There's some charges that are
here that don't show any disposition.
"THE COURT: I might say, Mr. Olsen, that I
didn't take those into account.
"MR. OLSEN: Well; you mentioned this armed rob-
bery yesterday, but I was acquitted on that.
It doesn't show that disposition on this I
notice, but--
"THE COURT: I haven't taken into account.
That doesn't show a conviction."
As a final note, defendant has submitted a supplemental
appeal brief dated May 15, 1980. We find that in no manner is
the brief "supplemental" to any issue previously raised by him.
the contrary, the brief requests this Court to review five
new and totally different issues. In regard to this brief,
we are guided by section 46-20-403, MCA, which provides:
"The appellant may file a brief in reply to
the brief of the respondent. The reply brief
must be confined to new matter raised in the
brief of the respondent. No further briefs
may be filed except with leave of court."
(Emphasis added.)
We conclude that this brief neither suppiements nor
replies, and since this Court at no time granted leave for new
briefs, the issues raised therein must be dismissed.
In conclusion, this Court must affirm its holding in State
v. Cardwell, supra, in finding section 46-11-403(1), MCA, un-
constitutional. However, the invalidity of that statute did
not prejudice defendant's case or materially interfere with
his rights to a fair trial.
Also, we find that although there were inaccurate entries
on the "rap" sheet attached to the presentence report, there
is substantial evidence in the record demonstrating that the
improper information was disclosed and discussed so as to
alert the sentencing judge to the inaccuracies therein. Further,
there is ample evidence that the trial judge relied only upon
convictions and facts known to be true accounts of defendant's
criminal record.
Accordingly, finding no prejudice, we affirm.
We concur:
Chief Justice