NO. 83-349
IN THE SUPREbIE COURT OF THE STATE OF MONTANA
1983
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
JANET MYRTLE REDDING,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Lake,
The Honorable Jack L. Green, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James A. Manley argued, St. Ignatius, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Jim Sheier argued, Asst. Atty. General, Helena
John Frederick, County Attorney, Polson, Montana
Thomas Kragh, Deputy County Atty., present at argu-
ment, Polson, Montana
P ------
. .-
--
Submitted: December 1, 1983
Decided: January 24, 1984
Filed: I+
C-
I[ I ,
Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Defendant Janet Redding appeals a sentence imposed in
Lake County District Court, Fourth Judicial District for
felony theft. We remand to the District Court for
resentencing.
Defendant took an automobile in Polson, which she found
with the keys in the ignition, and drove it to Oregon, where
she was arrested for speeding and for driving a stolen car.
She waived extradition to Montana. Her court-appointed
attorney entered into a plea bargain with the State by which
she was to plead guilty and the county attorney would
recommend a three-year suspended sentence with conditions.
At the time the sentencing hearing was set, the State moved
that the defendant be given psychiatric evaluation at Warm
Springs before sentencing. The psvchiatric report indicates
that defendant is subject to severe psychotic aberrations,
and that among her problems is impulsiveness which probably
led to the theft of the automobile.
The presentence report recommended a five-year sentence
with two years suspended for the defendant. Prior to the
sentencing hearing the court held a private conference with
the probation officer who had been assigned to write the
presentence report. The deputy county attorney entered the
conference but on finding it was private excused himself.
Apparently such out-of-court meetings occur in the Fourth
Judicial District and perhaps elsewhere.
At the sentencing hearing the court determined that
there had been a plea bargain, and determined from the
defendant that she understood that she had the right to
withdraw her plea, and that the court was not bound by the
plea bargain.
In the course of his sentencing, the Judge indicated
that she had had some problems with other cars while waiting
sentencing. He confirmed this with the county attorney at
the time of the sentencing. The Judge had gathered this
information from the probation officer in the presentencing
conference. No witnesses testified in court regarding the
problems with the other cars, although the information did
enter the record when counsel for the State volunteered the
information to support a motion for a presentence psychiatric
evaluation.
The court declined to accept the joint recommendations
of the attorneys and sentenced defendant to five years in
prison with two years suspended.
The following issue is raised on appeal: May a
district judge consider undisclosed information elicited in a
private conference with the presentence investigating officer
prior to sentencing?
The State contends that a presentence private conference
between the sentencing judge and the probation officer is an
appropriate procedure which will promote the goal of dealing
with the defendant in accordance with his individual
characteristics, circumstances, needs and potentialities in
the sentencing procedure. See section 46-18-101, MCA.
This Court has consistently held that a judge may not
sentence on the basis of private, out-of-court information,
communications or investigation. State v. Baker (Mont.
1983), 667 P.2d 416, 40 St.Rep. 1244; State ex rel. Greely v.
District Court (1979), 180 Mont. 317, 590 P.2d 1104; State v.
Stewart (1977), 175 Mont. 286, 573 P.2d 1138; Kuhl v.
District Court (1961), 139 Mont. 536, 366 P.2d 347. While
this rule evolved from situations where judges mounted their
own independent investigations, we believe that the
out-of-court dialogue between the judge and the probation
officer is also such out-of-court information.
However, our rationale for finding such a procedure to
be impermissible rests squarely on the constitutional
guarantee of due process found in the 14th Amendment to the
United States Constitution, and Article 11, Section 17 of the
Montana Constitution.
This Court has previously found that due process
precludes a sentence from being predicated on misinformation,
and has found certain presentence procedures to be
impermissible on that basis. State v. Orsborn (1976), 170
Mont. 480, 486, 555 P.2d 509, 513; Kuhl v. District Court
(1961), Supra. In this case we find the due process
protection to be broader.
The State has argued that because of the time and
expertise that presentence investigating officers can devote
to their investigation, they are able to provide sentencing
judges with an abundance of information pertinent to the
sentencing determination.
However, consideration must be given to the quality as
well as the quantity of the information placed before a
sentencing judge. Our system is based on the premise that
the confrontation, cross-examination and debate
characteristic of an adversarial system is elemental, if not
essential to its truth-seeking function. See Gardner v.
Florida (1977), 430 U.S. 349.
This system of truth seeking would be greatly impaired
if information were allowed to go unchallenged before the
sentencing judge in the secrecy of his chambers. Such
information may be misleading or even inaccurate.
Arizona considered a similar question of disclosure of
presentence reports in State v. Pierce (1972), 108 Ariz. 174,
494 P.2d 696. In that case, the Supreme Court of Arizona
adopted the following recommendation of the American Bar
Association's Standards for Criminal Justice Sentencing
Alternatives and Procedures:
"4.4 Presentence report: disclosure; parties.
" (a) Fundamental fairness to the defendant
requires that the substance of all derogatory
i-nformation which adversely affects his interests
a.nd which has not otherwise been disclosed in open
court should be called to the attention of the
defendant, his attorney, and others who are acting
on his behalf. ..."
We hold that this requirement of disclosure is not
merely required by "fundamental fairness," but is compelled
by the constitutional guarantee of due process. In this
State every person must be given an opportunity to explain,
argue, and rebut any information which may lead to the
deprivation of life, liberty or property. Presentencing
information provided to the sentencing judge in a criminal
case certainly falls within that category.
Such a requirement of disclosure is consistent with the
reasoning expressed by this Court in State v. Stewart (1977),
175 Mont. 286, 305, 573 P.2d 1138, 1148, which held that a
sentencing judge may not conduct his own presentence
investigation.
"This is not to say the trial court cannot acquire
more information as to the circumstances of a .
crime. We only hold that if it is his desire to do
so, he must delegate that responsibility to other
officials. They can gather the information and put
it in a report - - -
to be made available - - defense.
to the
At the presentencing hearing, if anything - - in the
report 9 contested, these offzials then be
cross-examined as - - investigation - -
to the and the
-e
hi
er
h - investigation. ..."
(emphasis
added)
Consideration must also be given to the policy of
protecting the confidences of informants. Such policy is
found in the language of section 46-18-113, MCA. That policy
may be upheld by concealing identities, where necessary, as
long as the defendant is informed of and given opportunity to
rebut the facts elicited from such informants.
In this case, the sentencing judge denies having relied
on the subsequent automobile troubles in sentencing the
defendant. However both parties agree that a fair reading of
the transcript reveals that these troubles were a
consideration of the court.
"THE COURT: Now, Mr. Kragh, I understand that this
Defendant has been in trouble while she's been
awaiting sentencing with a couple of more cars; is
that correct?
"MR. KRAGH: That's true, Your Honor.
"THE COURT: When she was on probation, she
committed this crime; is that correct?
"MR. KRAGH: Out of California, yes.
"THE COURT: Yes.
"Well, in this case, you were on probation when you
committed this act. You have not been convicted of
any other acts since then, but, apparently, there
has been some question concerning other vehicles.
Certainly, it is the object to rehabilitate people
and to prevent crime without sending them to jail
if possib1.e. But by the same token, the citizens
have a right to be safe in their person and in
their property."
What transpired in the private conference is unknown.
It is apparent, however, that the probation officer
sufficiently impressed the sentencing judge with the
misdemeanor charges so that it was a major factor in the
court ' s refusal of the plea-bargained sentence
recommendation.
We hold that defendant was denied due process because
the sentencing judge conferred with the presentence
investigation officer behind doors where no opportunity was
provided for argument, rebuttal, or explanation.
The rule requiring disclosure of all deroqatorv
information to the defense, and opportunity for argument,
explanation, and rebuttal can be applied purely
prospectively. The major factor in limiting retroactive
application of new principles of law is whether such
application would further or retard the purpose and effect of
the rule. LaRoque v. State and Alley (1978), 178 Mont. 315,
583 P.2d 1059; Linkletter v. Walker (1965), 381 U.S. 618;
Tehan v. United States (1966), 382 U.S. 406; Johnson v. New
Jersey (1966), 384 U.S. 719.
The purpose and effect of the rule stated here is to
guarantee the full effectuation of constitutional due process
guarantees of accurate information before the sentencing
judge, confrontation of adverse witnesses, and representation
of counsel.
While this rule guards against the possibility of
misinformation and abuse of discretion by a judge free to
avail himself of out-of-court information, it also
encompasses situations in which the danger of such
possibilities is quite small, as when the information is
insignificant or non-prejudicial. Thus, the purposes of the
rule are best effectuated by prospective application only;
sentences rendered before the date of this decision will be
overturned only if the information is shown to be inaccurate
or prejudicial.
The cause is remanded to the District Court for
resentencing.
We Concur:
%,&4at 97&&
Chief Justice
Justices
Mr. Justice L.C. Gulbrandson dissenting.
I respectfully dissent.
The majority opinion relies, in part, upon State v.
Stewart and State v. Orsborn. In Stewart, this Court
stated:
"[wle emphasize that we reaffirm our
adherence to the sentencing policy stated
in Orsborn, supra, quoting from Williams
v. New York, 337 U.S. 241, 69 S.Ct. 1079,
1083, 93 L.Ed.2d 1337, 1342:
11 I II
* * * Highly relevant--if not
essential--to [the sentencing judge's]
selection of an appropriate sentence is
the possession of the fullest information
possible concerning the defendant's life
and characteristics. And modern concepts
individualizinq punishment. have made it
all the more necessary that a sentencing
- - -------- denied an opportunity to
judee n o t be
o b t a i n E ......................... o r m a t i o n by a
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requirement of id adher
restrictive rules of evidence properly
- -,. .
applicable at the trial."'"
aaaea. .
( emphasis
175 Mont. 286, 305-6, 573 P.2d 1138, 1149.
In Orsborn, this Court stated:
"A convicted defendant still has a due
process guarantee against a sentence
predicated on misinformation. The real
question before us then is whether
defendant received that protection.
"Here: (1) Defendant was represented by
counsel at the time the sentencing was
made known to him. [citations omitted.]
"(2) He had the opportunity to rebut the
information. [citations omitted.]
"(3) Defendant chose to affirm the
accuracy of the information. [citations
omitted.]
"Thus, any danger of utilizing
misinformation in sentencing was thus
averted by the trial judge."
170 Mont. 480, 486, 555 P.2d 509, 513.
The factual situation here is similar to that in
Orsborn:
(1) T h e d e f e n d a n t Redding was r e p r e s e n t e d by c o u n s e l
at the time the sentencing i n f o r m a t i o n was made known to
her.
( 2 ) She had t h e o p p o r t u n i t y t o r e b u t t h e i n f o r m a t i o n .
The record discloses that the pre-sentence investigation
r e p o r t , w i t h a recommended s e n t e n c e o f f i v e y e a r s w i t h two
suspended, was filed on April 6, 1983. Thereafter, two
a d d i t i o n a l charges of unauthorized u s e of a motor vehicle
were filed against the defendant in justice of t h e peace
c o u r t , i n t h e same c o u n t y , and t h e S t a t e moved o n A p r i l 2 0 ,
1983, for an order for psychiatric examination of the
defendant. D e f e n s e c o u n s e l was p r e s e n t a n d o b j e c t e d t o s a i d
order. The s e n t e n c i n g h e a r i n g was n o t h e l d u n t i l J u n e 8 ,
1983. I t would a p p e a r , t h e r e f o r e , t h a t d e f e n s e c o u n s e l knew
of t h e p e n d i n g a d d i t i o n a l c h a r g e s a g a i n s t t h e d e f e n d a n t f o r
a p e r i o d o f more t h a n s i x w e e k s , and i n f a c t d i d n o t d i s p u t e
t h e a c c u r a c y of t h e i n f o r m a t i o n a t s e n t e n c i n g o r l a t e r .
(3) I n Orsborn, the defendant chose to affirm the
a c c u r a c y of the information. Here, the defendant did not
deny the accuracy of the information, and later entered
q u i l t y pleas t o the additional charges according t o counsel
a t t h e t i m e of o r a l a r g u m e n t i n t h e a p p e a l .
S e c t i o n 46-18-113, MCA r e a d s , i n p e r t i n e n t p a r t :
" A v a i l a b i l i t y of r e p o r t t o d e f e n d a n t and
others. (1) The j u d g e may, i n h i s
d i s c r e t i o n , make t h e i n v e s t i g a t i o n r e p o r t
or parts of it available to the
defendants or others, while concealing
t h e i d e n t i t y o f p e r s o n s who p r o v i d e d
confidential information. I f the court
d i s c l o s e s t h e i d e n t i t y o f p e r s o n s who
p r o v i d e d i n f o r m a t i o n , t h e j u d g e may, i n
h i s d i s c r e t i o n , allow t h e defendant t o
cross-examine those who rendered
information. . . ."
In my view, the majority has impliedly ruled Section
46-18-113, MCA, unconstitutional without referring to the
procedure outlined therein.
Here, the sentencing judge gave the exact sentence
recommended in the pre-sentence investigation, filed prior
to the additional charges, and defense counsel does not
dispute the accuracy of the information obtained.
I would affirm the denial of defendant's motion for
rehearing on sentencing.
Justice
We concur in the foregoing dissent of Mr. Justice L.C.
Gulbrandson.
?t.-&J/
Justic