No. 80-217
I N T E SUPREME C U T O T E STATE O MONTANA
H O R F H F
1981
T E STATE O M N A A
H F O T N ,
P l a i n t i f f and Respondent,
VS .
JAMES W. BALDWIN,
Defendant 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 S i x t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f Sweet G r a s s .
Honorable J a c k Shanstrom, J u d g e p r e s i d i n g .
Counsel o f Record:
For Appellant:
S t a c e y and J a r u s s i , B i l l i n g s , Montana
C a l v i n S t a c e y a r g u e d , B i l l i n g s , 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
C h r i s D. Tweeten a r g u e d , A s s i s t a n t A t t o r n e y G e n e r a l ,
H e l e n a , Montana
Conrad B. F r e d e r i c k s a r g u e d , Big Timber, Montana
Submitted: March 23, 1 9 8 1
Decided: June 4 , 1981
Filed:
m
Y Clerk
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
Defendant appeals the sentence imposed by the Sweet
Grass County District Court following his conviction of
aggravated assault. A jury trial was held on March 10,
1980. The court sentenced defendant on March 17, 1980,
to fifteen years imprisonment with five years suspended.
He raises two issues challenging the legality of his sentence.
First, defendant contends that the trial court erred
in considering for sentencing purposes, the facts underlying
a prior charge of aggravated assault of which defendant was
acquitted. Second, defendant asserts that he received an
increased sentence because he chose to exercise his con-
stitutional right to a jury trial instead of agreeing to
plead guilty. We hold against the defendant on the first
issue. Because we cannot determine fron the record whether
defendant was punished for exercising his right to a trial
by jury, we vacate the sentence and remand for resentencing.
On November 26, 1979, defendant met some casual
acquaintances in a bar in Big Timber. The defendant agreed
to accompany four of the acquaintances to Room 10 at the
Sweetgrass Motel to view and possibly purchase some drugs. He
went to the motel in his pickup, accompanied by Michael and
Elton Tronrud. The Tronrud brothers remained in the defendant's
pickup while the defendant went into the motel room.
While in the motel room, a fight occurred in which the
defendant suffered various minor injuries. After the fight,
the defendant left the motel room and returned to his pick-
up. He asked Michael Tronrud to drive and told him to stop
the pickup opposite Room 10. The defendant took a rifle out
of the pickup and fired one shot through the curtained motel
window. Fragments from the bullet and broken glass struck
one of the occupants, causing minor injuries.
Defendant was charged by information with aggravated
assault on December 3, 1979. On December 13, 1979, a pre-
liminary presentence investigation was ordered by the court
with the consent of the defendant. After reviewing the
presentence report, the judge sent a letter to defendant's
counsel, William Schreiber, stating that ". . . upon a plea
of guilty the minimum sentence that I would give Mr. Baldwin
would be a 5 year sentence with all but 45 days suspended,
said 45 days to be served in the State Prison at Deer Lodge,
Powell County, Montana." In this letter, the judge also
that
stated, "I feelithis is as lenient as I can possibly be in
the case, and that if he does not want to enter a plea on
these conditions why should we prepare to go to trial on
the merits of the case."
Defendant chose not to plead guilty and went to trial.
After defendant's conviction, the court ordered a supplemental
presentence investigation prepared.
At the sentencing hearing, defense counsel objected to
the references that both presentence reports made to defendant's
acquittal on aggravated assault charges in Missoula in 1976.
The first presentence report merely referred to the fact of
acquittal. The second contained defendant's own description
of the events leading to the charge: in the course of a
brawl outside a Missoula bar, defendant shot a person in
the stomach with a shotgun. It was the defendant who
voluntarily supplied the probation officer with the information
included in the second presentence report. Although the
details of the incident are somewhat fuzzy, it appears that
the defendant claimed self-defense. The jury acquitted the
defendant.
At the time of sentencing, the trial court stated that
it would consider the fact that defendant was found not
guilty on the Missoula charge of aggravated assault, but
that it could not completely overlook the incident which
gave rise to those charges. The court believed that the
Missoula incident resembled the factual circumstances of
the present case. Apparently considering both incidents
together, the trial court inferred that the defendant had a
volatile temper and a propensity for violence.
The trial court had the right to consider the facts
leading to the 1976 aggravated assault charges in Missoula. A
trial court may consider the broad spectrum of incidents
making up the background of an offender in determining the
proper sentence. See, section 46-18-101, MCA. A defendant
is entitled to have his sentence predicated on substantially
correct information. State v. Olsen (1980), - Mont. -,
614 P.2d 1061, 1064, 37 St.Rep. 1313; State v. Knapp (19771,
174 Mont. 373, 570 P.2d 1138, 1141. A sentencing court
cannot rely upon a previous criminal record if that record
contains constitutionally infirm convictions. Ryan v.
Crist (1977), 172 Mont. 411, 563 P.2d 1145, 1146. The
sentencing court here relied neither on an erroneous criminal
record nor an erroneous information. The trial court was
not required to shut its eyes to the Missoula incident. It
relied only on information volunteered by the defendant,
and if the defendant believed that the presentence report
distorted any of the information he had furnished, he was
under an affirmative burden to refute, correct, or deny the
facts related in the report. ,
See, State v. Radi (1979) -
Mont. , 604 P.2d 318, 320-21, 36 St.Rep. 2345. The
defendant testified at the sentencing hearing, but did not
challenge the accuracy of the information in the presentence
report.
The defendant next argues that the disparity between
the sentence offered in the letter the trial judge sent to
defense counsel and the sentence the defendant actually
received, shows that he was penalized for standing on his
right to a jury trial.
The federal constitution does not prohibit the granting
of leniency to defendants who plead guilty. Corbitt v. New
Jersey (1978), 439 U.S. 212, 218-20, 224, 99 S.Ct. 492, 58
L.Ed.2d 466; Brady v. United States (1970), 397 U.S. 742,
90 S.Ct. 1463, 25 L.Ed.2d 747. A policy of leniency following
a plea is proper, but its converse, "extra" severity following
trial, is not. See, e.g., United States v. ~ r a u j o(2d Cir.
60 I11.2d 102,
1976), 539 F.2d 287, 292; People v. Sivels (1375), /324
N.E.2d 422, 424; United States v. Thompson (7th Cir. 1973),
476 F.2d 1196, 1201, cert.den. 414 U.S. 918 (1973); United
States v. Lehrnan (7th Cir. 1972), 468 F.2d 93, 110.
To punish a person for exercising a constitutional right
is a basic due process violation. In Re Lewallen (1979), 23 Cal.3d
374, 590 P.2d 383, 386, 152 Cal.Rptr. 52C; 3ordenkischcr v.
Hayes (1978), 434 U.S. 357, 363, 98 S.Ct. 663, 54 L.Ed.2d 604.
It may be difficult to distinguish between situations
where leniency is offered in exchange for a plea and situations
where the defendant is punished for exercising his right to
trial by jury. In the absence of clear indications in the
record to the contrary, a trial judge could justify any
disparity between a sentence offered in exchange for a plea
of guilty and the sentence actually imposed following a jury
trial simply by characterizing the sentence offered in the
plea bargaining process as an offer of leniency--regardless
of the judge's true motivations. If the dividing line
between the permissible practice of granting leniency in
exchange for a plea of guilty and the prohibited practice of
imposing an increased sentence as punishment for the accused's
refusal to plead guilty is to be real and not semantic, then
the action for the sentencing court must be objectively
reviewable. The discretion a sentencing court has in deter-
mining an appropriate sentence (Section 46-18-101, MCA),
does not mean it can be arbitrary discretion. It must be
an informed discretion--informed by the application of an
objective standard.
The ABA Standards for Criminal Justice (2d ed. 1980),
covers the question of whether a judge, in sentencing a
defendant, improperly considered the defendant's failure or
refusal to accept a plea bargain. The Standards declare
that defendants who elect to stand trial should not be
punished for the exercise of their constitutional right to
trial. (Standard 14-§ 1.8(b), Standards Relating to Pleas
of Guilty.) It further provides that a defendant who goes
to trial should not be punished for putting the State to its
proof, and the defendant should receive only that sentence
which properly serves the deterrent, protective, and other
objectives of the criminal justice system.
In United States v. Stockwell (9th Cir. 1973), 472
F.2d 1186, 1187, cert.den. 411 U.S. 948, 93 S.Ct. 1924, 36
L.Ed.2d 409, the Ninth Circuit held that federal district
courts must not use their sentencing power "as a carrot and
stick to clear congested calendars, and that they must not
create an appearance of such a practice."
The Court expressly relied on ABA Standard 14-9 l.8(f.1!,
supra. The Court also held that:
". . . once it appears in the record that
the court has taken a hand in plea
bargaining, that a tentative sentence has
been discussed, and that a harsher sentence
has followed a breakdown in negotiations, the
record must show that no improper weight was
given the failure to plead guilty. In such
a case, the record must affirmatively show that
the court sentenced the defendant solely upon
the facts of his case and his personal history,
and not as punishment for his refusal to plead
guilty." 472 F.2d at 1187-88.
Because the record in that case left "unrebutted the inference
drawn by the defendant" that the trial judge punished him
for standing trial, the Court remanded for resentencing.
A mere disparity between the sentence offered during
plea bargaining and that ultimately imposed is not, of
itself, improper. In Re Lewallen, supra, 590 P.2d at 388;
People v. Dennis (1975), 28 Ill.App.3d 74, 328 N.E.2d 135,
138. But when that disparity is coupled by a clear indication
in the record that the trial judge imposed a harsher sentence
as punishment for defendant's rejection of a plea offer and
for his choice of going to trial, appellate courts have
either remanded for resentencing or reduced the defendant's
sentence themselves. E.g., In Re Lewallen, supra; Gallucci
v. State (Fla-App.1979), 371 So.2d 148; State v. Boone
(1977), 293 N.C. 702, 239 S.E.2d 459; People v. Dennis, supra;
United States v. Stockwell, supra; see generally, Annot.
"Propriety of Sentencing Justice's Consideration of Defendant's
Failure or Refusal to Accept Plea Bargain," 100 A.L.R.3d 834
(1980). Further, an allegation that the sentence imposed
was intended as punishment for defendant's jury demand need
not be shown solely by the overt comments of the sentencing
judge--it may also be shown by inference. See, -
Gallucci,
supra; People v. Dennis, supra, 328 N.E.2d at 137; Stockwell,
supra. In Stockwell, and in Gallucci, the reviewing courts
doubted that the trial judge actually punished the defendant
for standing trial, but still deemed it advisable to
vacate the defendant's sentence and remand for resentencing
because of the uncertainty of that doubt.
To protect a criminal defendant's constitutional rights
in plea bargaining situations and to help preserve public
confidence in the judicial process, we today adopt ABA
Standard 14-S 1.8(b). To implement that standard, and to
facilitate judicial review, a sentencing court which becomes
involved in the plea bargaining process, and which imposes
a harsher sentence after trial than was offered in exchange
for a guilty plea, must specifically point out the factors
that justify the increased sentence.
In this case, we cannot tell from the record why the
trial court offered a very lenient sentence (45 days jail
time) in exchange for a plea of guilty. Nor can we tell
why the court found imposition of a harsher sentence
appropriate after jury trial (10 years jail time). We have
no assurance that the trial court did not increase the
sentence in retaliation for defendant's insistence on a
trial by jury.
The defendant's sentence is vacated and the cause is
remanded for resentencing in a manner consistent with this
opinion.
ice
We Concur:
[_.,. ,-*Sus
tices
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