NO. 88-450
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
JOHN WILLIAM McPHERSON,
Defendant and Appellant.
APPEA3 FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Richard J. Carstensen, Billings, Montana
For Respondent :
Hon. Marc Racicot, Attorney General, Helena, Montana
John Paulson, Asst. Atty. General, Helena
Patrick L. Paul, County Attorney, Great Falls, Montana
Tammy K. Pluhell, Deputy County Attorney, Great Falls
Submitted on Briefs: Feb. 16, 1989
Decided: March 30, 1989
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Mr. Justice William E. Hunt, Sr., delivered the opinion of
the Court.
John PI. McPherson, the defendant, entered a plea of
guilty under S 45-5-502(l), MCA, to four counts of sexual
assault, pursuant to a plea agreement, in the District Court
of the Eighth Judicial District, Cascade County. Finding no
legal reason why judgment should not be pronounced against
McPherson, the District Court sentenced him to the Montana
State Prison for a term of 20 years, with five suspended, on
each of the four counts, to be served concurrently. He was
also designated a dangerous offender for the purposes of
parole eligibility. McPherson appeals. We affirm.
The following issues are raised on appeal:
1. Whether the District Court erred in denyinq
McPherson's motion to continue the sentencing hearing.
2. Whether the District Court properlv designated
McPherson as a dangerous offender.
3. Whether the sentence was predicated on substantially
correct information.
4. Whether the District Court, in imposing sentence,
properly considered two mental health evaluations which
referred to the report of a lie detector test administered to
McPherson.
On February 5, 1988, defendant entered a plea of guilty
to four counts of felony sexual assault, in violation of 5
45-5-502 (1), MCA, pursuant to a plea agreement. Defendant
admitted to subjecting his two adopted daughters, ages 7 and
8, and their two friends, ages 7 and 10, to various forms of
sexual assault on or about April 22, 1987.
Sentencing was originally set for March 11, 1988, hut
defendant was granted a continuance on March ?, 1988, for the
purpose of undergoing further assessment by Dr. Honeyman for
the Yellowstone Treatment Center (hereinafter referred to as
Yellowstone). Sentencing was reset for March 31, 1988, but
again continued to April 21, 1988, due to conflicts in the
court's calendar. On April 21, 1988, defendant made an oral
motion to continue the sentencing hearing for two reasons:
first, because the results of Dr. Honeyman's assessment,
although completed on April 16, 1988, had not yet been for-
warded to Yellowstone which was considering him as a candi-
date for its program; and second, because the probation
officer who prepared the presentence report was absent from
the sentencing hearing.
The motion was denied and the District Court sentenced
defendant to the Montana State Prison for a term of 20 years,
with five suspended, on each of the four counts, to be served
concurrently. Defendant was designated a dangerous offender.
The District Court based the sentence and the dangerous
offender designation on the presentence report which the
court had ordered, and on three evaluations submitted bv
defendant in support of his recommendation for sentencing.
Two of the evaluations referred to a polygraph examination.
The first issue raised on appeal is whether the District
Court erred in denying defendant's motion to continue the
sentencing hearing.
Section 46-13-202(3), MCA, provides in part:
(3) All motions for continuance are addressed to
the discretion of the trial court and shall be
considered in the light of the diligence shown on
the part of the movant.
As noted, the granting of a continuance is not a matter
of right but is addressed to the sound discretion of the
court. State v. Harris (1984), 209 Mont. 511, 682 P.2d 159;
State T ~ . Kirkland (1979), 184 Mont. 229, 602 P.2d 586. As we
have previously held, the District Court cannot be overturned
on appeal unless an abuse of discretion, which prejudices the
movant, is demonstrated. Harris, 682 P.2d at 161; State v.
Hankins (1984), 209 Mont. 365, 680 P.2d 958. In accordance
with State v. Van Natta (19821, 200 Mont. 312, 651 P.2d 57,
the trial court shall consider the diligence shown on the
part of the movant when ruling on a continuance.
In this case, defendant moved for a continuance in the
sentencing proceeding on two grounds. First, because the
probation officer who prepared the presentence report was
absent from the proceeding and second, because defendant's
assessment by Dr. Honeyman had not yet been forwarded to
Yellowstone which was considering him as a candidate for its
treatment program.
Defendant did not show any effort to obtain the presence
of the probation officer, nor, offer any evidence as to what
information could be obtained from her, nor did he give any
account of what value her testimony would have been to his
case. We previously held in State v. Walker ( ~ o n t .1987'1,
733 P.2d 352, 44 St.Rep. 363, citing Harris, 682 P.2d at 161,
that :
First, he [the defendant] needed to show that he
reasonably searched for his witness. Second, he
needed to show that his witness's testimony could
have helped his defense.
Defendant's lack of diligence is evidenced by the fact that
the record shows no such testimony nor evidence which would
satisfy this requirement.
Defendant argues that under State v. Lopez (1980), 185
Mont. 187, 605 P.2d 178, the sentencing hearing is only
proper when defendant is allowed to examine the author of the
presentence report. However, the Court in Lopez provided
that the sentencing hearing is based upon numerous
considerations but did not specifically hold that the absence
of any one factor would render the hearing improper. In this
case, defendant had copies of the presentence report and the
three psychological evaluations. He stated that he did not
wish to call any witnesses at the sentencing hearing, nor
does the record show evidence of an effort by defendant to
procure the presence of the probation officer.
The facts demonstrate that defendant had ample time to
produce evaluations and witnesses in support of his sentenc-
ing recommendation. The presentence report was prepared by
the probation officer on February 26, 1988, and filed March
1, 1988. In addition, sentencing was originally set for
March 11, 1988, but defendant was granted a continuance on
March 7, 1988, in order to undergo further evaluation by
Yellowstone. Sentencing was again reset for April 21, 1988.
In the meantime, the Yellowstone report had been completed by
Dr. Honeyman on April 16, 1988, although not yet forwarded to
Yellowstone. Furthermore, the case had been set for sentenc-
ing on two previous dates and the presentence report had been
completed and filed on March 1, 1988.
Lack of diligence on defendant's part is demonstrated by
the fact that he waited until the day of the hearing to move
for the continuance. In State v . Kleman (Mont. 1981), 634
P.2d 632, 38 St.Rep. 1627, where the trial had also been set
on two previous dates, the Court held that, "Waiting until-
the day of trial to make such a motion [continuance] does not
show diligence on the part of the defendant."
Also, defendant moved for the continuance in order to
allow time for the results of Dr. Honeyman's evaluation to be
forwarded to Yellowstone for assessment. The evaluation had
been completed five days before the sentencing hearing.
Defendant had nearly six additional weeks from the date of
the original hearing to undergo assessments and produce
evaluations and witnesses.
The District Court did not abuse its discretion in
denying the motion nor is there anything in the record to
indicate that defendant was prejudiced by the denial. For
the foregoing reasons, the District Court properly denied
defendant's motion for a continuance.
Defendant was designated a dangerous offender in
accordance with 5 46-18-404, MCA. He contends that the
District Court erred in the designation because it failed to
articulate the reason for its findings.
Section 46-18-404, MCA, permits the District Court judge
to use his discretion to designate a criminal as dangerous
for the purpose of parol. However, we held in State v.
Miller (Mont. 1988), 757 P.2d 1275, 45 St.Rep. 790, that the
statute dictates two prerequisites to a nondangerous
classification: (1) lack of a felony conviction within the
preceding five years; - (2) a finding that the defendant
and,
does not present a substantial danger to society. Hence,
although defendant had not committed a felony in the last
five years, the District Court must also find that he was not
a substantial danger to society before nondangerous classifi-
cation becomes mandatory.
This Court previously held in In re McFadden (1980), 185
Mont. 220, 605 P.2d 599, that the sentencing court must
articulate its reasons for the determination, and that the
mere recitation of the statutory language was insufficient.
Also, in State v. Camitsch (Mont. 1981), 626 P.2d 1250, 38
St.Rep. 563, we provided that the court must present its
reasons in order to support the conclusion because without
such findings the court could not determine whether there had
been an abuse of discretion.
Defendant argues that the District Court designated him
a dangerous offender "for the purposes of eligibility for
parole" thus, merely reciting the statute. However, in State
v. Bell (Mont. 1987), 731 P.2d at 336, 344, 44 St.Rep 56, 66,
the District Court set forth a list of its findings in the
sentence and we held that this was adequate to meet the
articulated reasons requirement. In defendant's case the
District Court also set forth a similar type of list of its
findings in the first portion of the sentence as follows:
1. The seriousness of the offenses and the harm to
the victims.
2. The Defendant has been diagnosed "psychosexual
disorder--pedophilia and a dependent personality
disorder."
3. The Defendant is reported by the Helena, Mon-
tana Sexual Assault Treatment Program to be a
danger and a risk to the community.
4. That the Defendant's sado-masochistic tenden-
cies complicate any treatment he will need.
5. That the reported chances of the Defendant
re-offending is "quite high."
6. That the pedophilia is incurable.
Although the reasons articulated are set forth in the first
portion of the judgment and the dangerous offender designa-
tion in the latter portion, we hold that it is all part of
the same judgment and, therefore, sufficient.
The court adequately articulated its reasons for finding
defendant dangerous in its judgment. We hold that the rea-
sons set forth are sufficient to designate defendant as a
dangerous offender.
Next, defendant raises the issue of whether the sentence
was predicated on substantially correct information.
We have held that "a defendant is entitled to have his
sentence predicated on substantially correct information."
State v. Baldwin (Mont. 1981), 629 P.2d 222, 224, 38 St.Rep.
882, 884, citing State v. Olsen (Mont. 1980), 614 P.2d 1061,
1064, 37 St.Rep. 1313; State v. Knapp (1977), 174 Mont. 373,
379, 570 P.2d 1138, 1141. The Court, however, will not
strain at worst-case assumptions in order to find a mistake
and we presume the District Court to be correct. State v.
Herrera (1982), 197 Mont. 462, 643 P.2d 588.
Here, the District Court based its sentence on a presen-
tence report prepared by defendant's probation officer, as
required by 46-18-111, MCA, and on three psychological
evaluations. We hold that these documents adequately sub-
stantiate the court's rationale and that they come within the
purview of substantially correct information as required.
Under State v. Smith (Mont. 1985), 705 P.2d 1087, 1093,
42 St.Rep 463, 468, citing State v. Trangsrud (Mont. 19831,
651 P.2d 37, 39 St.Rep. 1765, we held that the defendant has
an affirmative duty to present evidence showing the
inaccuracies contained in the report. -- State v. Radi
See also
(1973), 185 Mont. 38, 604 P.2d 318. Here, defendant did not
persuasively rebut the information or conclusions utilized by
the District Court. He did not show that the documents were
inaccurate, incomplete nor incorrect. Thus, defendant did
not meet this affirmative duty.
Further, under 5 46-18-102(3) (b), MCA, the judge shall
clearly state for the record his reasons underlying the
imposition of any sentence. Here, the district judge has
enumerated six reasons for the sentence imposed on defendant.
We hold that these reasons are sufficient to support the Dis-
trict Court's rationale.
In addition, not only may the District Court use its
broad discretion to determine the appropriate punishment,
State v. Carson (1984), 208 Mont. 320, 322, 677 P.2d 587,
588, but it may also use its discretion in determining the
manner and extent of punishment. State v. Petroff (Nont.
1988), 757 P.2d 759, 45 St.Rep. 833.
Defendant argues that because his probation officer
recommended either a long suspended sentence with require
ments for treatment or incarceration at the prison where he
would be able to receive treatment, the sentence was errone
ous and excessive. We disagree. We held in State v. Ste
phens (1982), 198 Mont. 140, 146, 645 P.2d 387, 391 that:
There is no requirement that the sentencing judge
adopt the recommendation of the presentence report
or that he state reasons for any discrepancy he-
tween the recommended sentence and the one actually
imposed. The sentencing judge must only specify
reasons why the sentence was imposed. Citing State
v. Stumpf (Mont. 198O), 609 P.2d 298, 37 St.Rep.
673; Cavanaugh T T . Crist (Mont. 1980), 615 P.2d 890,
37 St.Rep. 1461.
The District Court's sentence was based upon accurate
information and it properly articulated the reasons for its
finding as required. We hold that the sentence is proper.
The last specification of error regards whether the
District Court in imposing sentence properly considered two
mental health evaluations which referred to the report of a
lie detector test administered to defendant.
This Court has long abhorred the use of lie detector
evidence and has consistently held it inadmissible. We said
in State v. Bashor (1980), 188 Mont. 397, 614 P.2d 470, that
the results of polygraph examinations are inadmissible as
evidence in a criminal trial. State v. Campbell (19781, 176
Mont. 525, 579 P.2d 1231; -- State v. Hollywood (19601,
see also
138 Mont. 561, 358 P.2d 437. In Bashor, we provided the
following:
" ... in many cases where polygraph evidence is
admitted, a single person, the polygraphist, will
give testimony which will often be the determina-
tive factor as to the guilt or innocence of a
defendant in a jury-tried case. This would deprive
the defendant of the common sense and collective
judgment of his peers, derived after weighing facts
and considering the credibility of witnesses, which
has been the hallmark of the jury tradition."
State v. Rashor (1980), 188 Mont. at 414, 614 P.2d
at 482, citing United States v. Alexander (8th Cir.
1975), 526 F.2d 161, 168.
However, Bashor addressed the polygraph issue in the trial
setting while in defendant's case the issue was brouqht up
during sentencing.
According to § 46-18-111, MCA, the court must consider
the presentence report when imposing a sentence unless it
deems the report unnecessary. The judge may also consider a
wide variety of information not admitted at trial, United
States v. Messer (9th Cir. 1986), 785 F.2d 832, since the
sentencing hearing may he conducted by permitting relaxed.
rules of evidence. State v. Holmes (1983), 207 Mont. 176,
674 P.2d 1076. However, this Court has stated that the
Montana Rules of Evidence do not apply to sentencing
hearings, Rule 101 (c)(3), M.R.Evid. State v. Lamere (1983),
202 Mont. 313, 658 P.2d 376.
Defendant provided the District Court with the three
evaluations which were conducted at his request and submitted
by him in support of his recommendation for sentencing. The
district judge was not required to consider the evaluations
but because of the relaxed standards of evidence in a sen-
tencing situation, he was free to do so. In State v. Turley
(1974), 164 Mont. 231, 521 P.2d 690, where the defendant also
submitted himself to a polygraph examination before
sentencing, this Court held that the trial court did not err
in refusing to consider evidence of the polygraph at
sentencing.
Thus, we continue to hold that the polygraph is inadmis-
sible as evidence at trial but, in this case, the defendant
invited the error and cannot now complain that it was in the
record. State v . Miller ( 1 9 7 7 ) , 173 Mont. 453, 568 P.2d 130.
A F f irmed.
Chief Justice
pr
" C uJustices t-