State v. DeSalvo

                                          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


                                                                         2
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

                                                                 3
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


                                                                               6
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
                                                                                  7
          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


                                                                                 8
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


                                                                             9
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

                                                                 10
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.