No. 95-049
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1995
STATE OF MONTANA,
Plaintiff and Respondent,
v.
RONALD DeSALVO, a/k/a
RONALD SALVATI
Defendant and Appellant.
APPEAL FROM: District Court of the Seventeenth Judicial District,
In and for the County of Valley,
The Honorable John C. McKeon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
David L. Irving, Glasgow, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, John
Paulson, Assistant Attorney General, Helena,
Montana; Kenneth Oster, Valley County Attorney,
Glasgow, Montana
Submitted on Briefs: July 27, 1995
Decided: September 29, 1995
Filed: ..~
Justice James C. Nelson delivered the Opinion of the Court.
Following a pre-sentence investigation, the Seventeenth
Judicial District Court, Valley County, sentenced Appellant Ronald
DeSalvo, a/k/a Ronald Salvati (DeSalvo) to 15 years in the Montana
State Prison as a persistent felony offender. The District Court
denied DeSalvo's motion for reconsideration. DeSalvo appeals the
District Court's denial of his motion for reconsideration and its
judgment entered November 14, 1994. We affirm.
ISSUES
DeSalvo presents the following issues on appeal:
Did the District Court abuse its discretion by:
1) not considering evidence of mitigation at the sentencing
hearing;
2) finding that based on the evidence, DeSalvo's mental
capacity was not significantly impaired;
3) relying on substantially incorrect information at the
sentencing hearing;
4) denying DeSalvo the right to confront a witness at the
sentencing hearing by relying on a 20-year old psychiatric report
prepared by a person not at the hearing; and
5) imposing a sentence which represents cruel and unusual
punishment?
BACKGROUND
DeSalvo broke into a drugstore in Glasgow, Montana, and stole
prescription drugs. The County Attorney for Valley County charged
DeSalvo with burglary, theft, and criminal possession of dangerous
drugs, all felonies. Upon motion by the State to dismiss the
charges of burglary and theft, the District Court ordered the
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dismissals. Initially, DeSalvo pleaded guilty to criminal
possession of dangerous drugs, but the District Court did not
accept the plea because DeSalvo was not willing to admit to all
elements of the offense. On May 2, 1994, the District Court
accepted DeSalvo's guilty plea.
The State filed a notice of intent to seek sentencing for
DeSalvo as a persistent felony offender. DeSalvo requested the
District Court to appoint a professional to conduct a psychological
evaluation and to help evaluate his psychiatric record from the
Warm Springs State Hospital. The District Court appointed Dr. Kay
Dorr. DeSalvo then applied for a hearing on exceptions to
mandatory minimum sentences. The District Court granted the
hearing and heard the evidence on exceptions, finding that DeSalvo
had no significant impairment and therefore his application for an
exception to the mandatory minimum sentence did not apply. At the
sentencing hearing, the District Court found DeSalvo to be a
persistent felony offender and sentenced him to 15 years in the
Montana State Prison. DeSalvo moved for reconsideration, and the
District Court subsequently denied the motion. DeSalvo appeals
from the District Court's order denying his motion for
reconsideration and from the judgment filed November 14, 1994.
DISCUSSION
DeSalvo claims that the District Court abused its discretion
by sentencing him to 15 years in prison as a persistent felony
offender. Specifically, he argues that the District court
committed five errors that amount to an abuse of discretion. Each
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of these will subsequently be addressed in turn.
At the outset, however, it is important to reemphasize that we
consistently grant trial judges broad discretion to determine
appropriate punishment and will not review a sentence on appeal for
mere inequity or disparity. State v. Hembd (1992), 254 Mont. 407,
411, 838 P.2d 412, 415; State v. Dahms (1992), 252 Mont. 1, 13, 825
P.2d 1214, 1221. Accordingly, we review a district court's
sentencing decision for legality only and will not disturb the
decision unless the district court abused its discretion. State v.
Blanchard (19951, 889 P.2d 1180, 1182, 52 St.Rep. 54, 56 (citing
State v. Hurlbert (1988), 232 Mont. 115, 123, 756 P.2d 1110, 1115).
The District Court sentenced DeSalvo for criminal possession
of dangerous drugs, pursuant to 5 45-g-102(5), MCA, the maximum
sentence for which is not more than five years incarceration.
However, because the District Court found DeSalvo to be a
persistent felony offender, it applied § 46-18-502, MCA. Section
46-18-502, MCA, states that "a persistent felony offender shall be
imprisoned in the state prison for a term of not less than 5 years
or more than 100 years . . . .'I In accordance with our decision in
State v. Fitzpatrick (1991), 247 Mont. 205, 805 P.2d 584, the
District Court used 5 46-18-502, MCA, in place of the maximum
sentence and not as an additional sentence.
DeSalvo claims that the mandatory minimum sentence of five
years does not apply to him because he falls within the exceptions
found in § 46-18-222, MCA. Section 46-18-222(2), MCA, provides in
part:
All mandatory minimum sentences . do not apply if:
. . . (2) the defendant's mental capacity, at the time
of the commission of the offense for which the defendant
is to be sentenced, was significantly impaired, although
not so impaired as to constitute a defense to the
prosecution. However, a voluntarily induced intoxicated
or drugged condition may not be considered an impairment
for the purposes of this subsection.
Specifically, DeSalvo claims that his mental capacity at the
time of the commission of his offense was significantly impaired.
Dr. Kay Dorr, the court appointed professional, testified that
DeSalvo had dementia, a contemporary term for organic brain
syndrome, and that by definition, dementia amounted to significant
impairment. However, a psychological report conducted by Dr. James
Dick at the Warm Springs State Hospital stated that DeSalvo's
testing was not indicative of organic impairment. Additionally,
the psychiatric evaluation by Dr. Alexander, the clinical director
at Warm Springs State hospital, also noted that there were no
indications of organic impairment.
1. Did the District Court abuse its discretion by not
considering evidence of mitigation at the sentencing
hearing?
In support of his claim of abuse of discretion, DeSalvo first
argues that the District Court failed to consider the evidence he
offered supporting mitigation of his sentence. Section 46-18-115,
MCA, requires the sentencing court to afford the parties an
opportunity to be heard on any matter relevant to disposition,
including the applicability of mandatory minimum sentences and to
ascertain if the defendant wishes to present any information in
mitigation of punishment. DeSalvo presented evidence of mitigation
5
of punishment arguing that the exceptions to the mandatory minimum
sentence for persistent felony offenders should have applied.
The State agreed that the sentencing court must consider
evidence of mitigation of punishment. In fact, the State argued
that the District Court did fully consider the evidence and
expressly acknowledged Dr. Kay Dorr's testimony regarding dementia.
DeSalvo concedes that the District Court granted an extension of
sentencing, appointed Dr. Kay Dorr to examine him and to assist in
evaluating his mental health reports, and heard testimony regarding
Dr. Kay Dorr's and the Warm Springs State Hospital's evaluations of
him. DeSalvo simply does not agree with the District Court's
finding that the evidence did not support the exception to the
mandatory minimum sentence.
As demonstrated by both the State and DeSalvo, the District
Court fully considered DeSalvo's evidence of mitigation of
punishment. DeSalvo presented no evidence that the District Court
abused its discretion. Accordingly, we hold that the District
Court complied with its statutory duty to consider evidence of
mitigation of punishment.
2. Did the District Court abuse its discretion by
finding that based on the evidence, DeSalvo's mental
capacity was not significantly impaired?
Second, DeSalvo claims that the District Court's finding that
his mental state was not significantly impaired was contrary to the
evidence presented at the sentencing hearing. The State argues,
however, that the District Court, like any trier of fact, is free
to accept or reject any expert opinion evidence in light of all of
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the evidence presented to the trier of fact. In addition, the
State claims that the exceptions pursuant to § 46-18-222, MCA,
apply only when the sentencing court intends to sentence the
defendant to less than the mandatory minimum sentence.
In State v. Arlington (1994), 265 Mont. 127, 875 P.2d 307, the
defendant argued that two of the exceptions to the mandatory
minimum sentence applied. The district court conducted a hearing
to determine if the exceptions applied and concluded that
defendant's mental capacity was not substantially impaired.
Arlinqton, 875 P.2d at 331. On review, we stated that 'I' [blecause
the judge was not disposed to give the minimum sentence, there is
no chance that he would have given less than the minimum sentence.'
Therefore, we hold that the sentencing court correctly found § 46-
18-222, MCA, inapplicable." Arlington, 875 P.2d at 331 (quoting
State v. Stroud (1984), 210 Mont. 58, 78, 683 P.2d 459, 469).
In the instant case, the District Court stated that it did not
intend to sentence DeSalvo to less than the mandatory minimum
sentence. In its order denying reconsideration, the District Court
stated that it was not disposed to consider the minimum sentence
for a persistent felony offender and therefore the exceptions did
not apply. DeSalvo himself recommended a sentence longer than the
mandatory minimum sentence. Given the evidence presented, we hold
that there was substantial evidence to support the District Court's
decision that DeSalvo's mental state was not significantly impaired
and, therefore, the District Court did not abuse its discretion.
3. Did the District Court abuse its discretion by
relying on substantially incorrect information at the
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sentencing hearing?
Third, DeSalvo argues that the District Court relied on
erroneous information in the sentencing hearing. DeSalvo claims
that the 20-year old psychiatric report prepared by Dr. James Dick
conflicted with other reports from the Warm Springs State Hospital
and with Dr. Kay Dorr's testimony and evaluation. The State
contends that the District Court's ruling on DeSalvo's mental
impairment is immaterial because the exceptions to § 46-18-222,
MCA, did not apply. The State further argues that DeSalvo failed
to show that the District Court relied on incorrect facts to reach
its conclusion.
In State v. Petroff (1988), 232 Mont. 20, 757 P.2d 759, the
defendant contended that the district court relied on incorrect
information in sentencing him. Petroff, 757 P.2d at 761. We
stated that although a criminal defendant has a right to a sentence
based on substantially correct information, we will not strain to
find a mistake. "Rather, the District Court is presumed to be
correct." Petroff, 757 P.2d at 761 (citing State v. Lane (19771,
175 Mont. 225, 231, 573 P.2d 198, 202); see also State v. McPherson
(1989), 236 Mont. 484, 490, 771 P.2d 120, 124.
In the instant case we find no indication that the District
Court relied on incorrect information. The District Court based
its conclusion that DeSalvo was deceptive on an assessment of all
the evidence including the testimony of the probation officer and
Dr. Kay Dorr. Furthermore, as pointed out above, DeSalvo's alleged
significant mental impairment is immaterial because the District
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Court did not consider the mandatory minimum sentence for Desalvo.
Therefore, we hold that the District Court did not abuse its
discretion in relying on the Warm Springs State Hospital reports as
well as the testimony of Dr. Kay Dorr to determine that DeSalvo's
mental capacity was not significantly impaired.
4. Did the District Court abuse its discretion by
denying DeSalvo the right to confront a witness at the
sentencing hearing by relying on a 20-year old
psychiatric report prepared by a person not at the
hearing?
Fourth, DeSalvo argues that by relying on Dr. James Dick's 20-
year old report, the District Court denied his Sixth Amendment
right to confront the witnesses against him. Specifically, DeSalvo
argues that because Dr. James Dick was not present at the
sentencing hearing, DeSalvo could not cross-examine him. The State
contends that a sentencing judge may use information from sources
other than the testimony of witnesses in open court, and thus, at
a sentencing hearing, a court may receive any probative evidence.
We agree.
In State v. Higley (1980), 190 Mont. 412, 621 P.2d 1043, we
held that the rules of evidence do not apply to the sentencing
hearing. Hiqlev, 621 P.2d at 1054-55 (citing Williams v. New York
(1949), 337 U.S. 241, 250-51, 69 S.Ct. 1079, 1085, 93 L.Ed. 1337,
1344 (holding that a denial of confrontation and cross-examination
of witnesses in a sentencing hearing did not violate due process
rights)) ; see also State v. D.B.S. (1985), 216 Mont. 234, 248, 700
P.2d 630, 639. In Hiqley, the sentencing judge told the defendant
the facts he was relying on and gave the defendant the opportunity
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to refute the information and therefore adequately protected the
defendant's rights. Hislev, 621 P.2d at 1055.
In the instant case, the District Court did not violate
DeSalvo's right to confrontation at the sentencing hearing because
the sentencing judge provided DeSalvo the opportunity to know what
information would be presented and the opportunity to rebut that
information. DeSalvo knew that the Warm Springs State Hospital
reports would be considered and he had the opportunity to rebut the
information contained in the reports. Accordingly, we hold that
the District Court properly considered the Warm Springs State
Hospital's reports at the sentencing hearing.
5. Did the District Court abuse its discretion by
imposing a sentence which represents cruel and unusual
punishment?
Fifth, DeSalvo argues that his 15-year sentence constitutes
cruel and unusual punishment because it was excessive and based on
punishment rather than rehabilitation. The State contends that a
sentence is not cruel or unusual punishment if it falls within the
maximum statutory guidelines. Moreover, review of sentences which
do not exceed the statutory maximum properly lies with the Sentence
Review Division. DeSalvo agrees, but counters that his punishment
is greatly disproportionate to his crime and that it shocks the
conscience and outrages the moral sense of the community.
We have held that I' [t]he general rule regarding sentencing is
that a sentence within the maximum statutory guidelines does not
violate the Eighth Amendment prohibition against cruel and unusual
punishment." Dahms, 825 P.2d at 1221. Moreover, the proper
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channel for a challenge to the equity of a sentence as opposed to
its legality is through the Sentence Review Division. Dahms, 825
P.Zd at 1221. We have consistently held that "we will not review
a sentence on appeal for mere inequity or disparity." Dahms, 825
P.2d at 1221 (citing State v. Almanza (19871, 229 Mont. 383, 386,
746 P.2d 1089, 1090-91).
III the instant case, the District Court sentenced DeSalvo
within the maximum statutory guidelines. For that reason, the
District Court did not impose cruel and unusual punishment on
DeSalvo. We hold that further review of the sentence for any
alleged inequity properly lies with the Sentence Reviewpivision.