96-324
No. 96-324
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
STATE OF MONTANA,
Plaintiff and Respondent,
v.
DANIEL ALDEN,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William F. Hooks; Appellate Defenders
Office; Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek; Attorney General;
Pamela P. Collins; Assistant Attorney General;
Helena, Montana
Dennis Paxinos; Yellowstone County Attorney;
Marcia Good Sept; Deputy County Attorney;
Billings, Montana
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Submitted on Briefs: February 6, 1997
Decided: March 18, 1997
Filed:
__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.
The defendant, Daniel Alden, was charged by information, filed
in the District Court for the Thirteenth Judicial District in
Yellowstone County, with two counts of felony sexual assault, in
violation of 45-5-502, MCA (1993). He pled guilty to both
charges pursuant to North Carolina v. Alford (1970), 400 U.S. 25.
The District Court accepted his plea and, after a sentencing
hearing, sentenced him to a term of imprisonment in the Montana
State Prison. He subsequently moved for reconsideration of his
sentence and requested the District Court to consider alternatives
to imprisonment, pursuant to the nonviolent offender provisions set
forth at 46-18-201 and -225, MCA (1993). After a hearing, the
District Court denied the motion. Alden appeals. We affirm the
judgment of the District Court.
The issue on appeal is whether the District Court erred when
it sentenced Alden to a term of imprisonment.
FACTUAL BACKGROUND
On August 16, 1994, Daniel Alden was charged by information
with two counts of felony sexual assault. The information alleged
that he sexually molested two minor girls.
Alden pled guilty to both of the charges pursuant to North
Carolina v. Alford (1970), 400 U.S. 25. The District Court
accepted his plea and ordered a presentence investigation report.
The State of Montana recommended that he receive a suspended
sentence, conditioned upon his successful completion of a sexual
offender treatment program. The probation and parole officer who
prepared the presentence investigation report, however, recommended
the imposition of a term of imprisonment.
At the sentencing hearing, Dr. Judith Starr and Dr. James
Selkin testified on Alden's behalf. Dr. Starr, a licensed
professional counselor with expertise in the field of sexual abuse,
testified that, in her opinion, the facts in Alden's case meet the
criteria for a false allegation of sexual abuse. Dr. Selkin, a
colleague of Alden's therapist at the Darrow Clinic in Denver,
Colorado, testified that, in his opinion, Alden is safe in the
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community and that incarceration would only serve to disrupt
Alden's treatment.
After the sentencing hearing, the District Court concluded
that a term of imprisonment is necessary to protect society and to
make Alden aware of the severity of his actions. The District
Court's judgment states, in relevant part:
Sentence was imposed for the following reasons:
1. the contents of the presentence report;
2. defendant's Sex Offender Evaluation submitted by
Michael Sullivan and other reports provided to the Court;
3. the testimony of Judy Starr and James Selkin, Ph.D.
presented at the sentencing hearing;
4. apologizes on behalf of society: defendant was
abused by father and others later in life which has
affected defendant through no fault of his own, however,
this is an explanation not an excuse;
5. defendant entered an Alford plea of Guilty to both
counts as charged, thereby canceling a public trial and
choosing not to have the jury be provided with the
State's proof of facts/information and allow the jury to
deliberate on defendant's guilt or innocence;
6. recognizes defendant did not admit to actual guilt
of committing the offenses, however, shall treat
rendering judgment like the offenses have been committed:
Court personally believes defendant is in denial and
committed the offenses charged;
7. notes defendant has participated in sex offender
treatment of five plus (5+) years in Colorado and
believes treatment is not doing defendant any good
concluding children are not safe around defendant who
remains a risk to all children; and
8. has no crystal ball to predict the future, however,
considering defendant's past is the best judge of future
actions.
Accordingly, the District Court sentenced him to two concurrent
fifteen-year terms in the Montana State Prison, with three years of
each term suspended.
Alden subsequently moved for reconsideration of his sentence
and requested the District Court to consider alternatives to
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imprisonment, pursuant to the nonviolent offender provisions set
forth at 46-18-201 and -225, MCA (1993). After a hearing, the
District Court denied the motion and issued a written order which
states, in relevant part, as follows:
(1) the interests of justice and the needs of public
safety require the level of security provided by
imprisonment of the offender in the Montana State Prison;
(2) the defendant remains in denial and not motivated;
therefore the needs of the offender can not be better
served in the community or in a facility or program other
than the Montana State Prison;
(3) there are no substantial grounds tending to excuse
or justify the offense(s);
(4) the defendant was not acting under strong
provocation;
(5) restitution was not an issue/argument, therefore not
applicable;
(6) the offender has admitted to prior offenses for
similar criminal acts;
(7) the defendant's conduct was the result of
circumstances which did occur again even after defendant
participated in treatment and defendant remains a high
risk to re-offend;
(8) the character and attitude of the offender indicate
that he remains a high risk to re-offend;
(9) rehabilitative treatment at the Montana State Prison
may be the motivating factor needed for the offender to
respond to correctional treatment, thereby protecting
children and society;
(10) imprisonment or incarceration of the offender is
always a hardship, although the Court believes the
hardship to any child victim including defendant's
children far outweigh the hardship the offender's
confinement will create.
Alden appeals from the District Court's order.
DISCUSSION
Did the District Court err when it sentenced Alden to a term
of imprisonment?
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In Montana, criminal sentencing alternatives are strictly a
matter of statute. State v. LaMere (1995), 272 Mont. 355, 358, 900
P.2d 926, 928. Our standard of review, therefore, includes the
question of whether the district court correctly applied the
applicable statutes. LaMere, 272 Mont. at 358, 900 P.2d at 928.
We review the district court's findings on which its sentence is
based to determine whether they are clearly erroneous. State v.
Bower (1992), 254 Mont. 1, 7, 833 P.2d 1106, 1110.
On appeal, Alden contends that the District Court erred when
it sentenced him to a term of imprisonment. Initially, we note
that he does not assert that the District Court failed to comply
with the sentencing procedures mandated by 46-18-201 and -225,
MCA (1993). Rather, Alden claims that the District Court's order
is not supported by evidence in the record and that, based on the
testimony and evidence he presented, he should not have been
sentenced to a term of imprisonment. In essence, he disagrees with
the District Court's final determination that incarceration is
necessary and that alternatives to imprisonment are not appropriate
in this case.
Section 46-18-201, MCA (1993), provides, in relevant part, as
follows:
(10) In sentencing a nonviolent felony offender, the
court shall first consider alternatives to imprisonment
of the offender in the state prison, including placement
of the offender in a community corrections facility or
program. In considering alternatives to imprisonment,
the court shall examine the sentencing criteria contained
in 46-18-225. If the offender is subsequently sentenced
to the state prison . . . the court shall state its
reasons why alternatives to imprisonment were not
selected, based on the criteria contained in 46-18-225.
Section 46-18-201(10), MCA (1993).
Section 46-18-225, MCA (1993), is entitled "Criteria for
sentencing nonviolent felony offenders," and provides as follows:
Prior to sentencing a nonviolent felony offender to a
term of imprisonment in the state prison . . . the court
shall take into account whether:
(1) the interests of justice and the needs of
public safety truly require the level of security
provided by imprisonment of the offender in the state
prison . . .;
(2) the needs of the offender can be better served
in the community or in a facility or program other than
the state prison . . .;
(3) there are substantial grounds tending to excuse
or justify the offense, though failing to establish a
defense;
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(4) the offender acted under strong provocation;
(5) the offender has made restitution or will make
restitution to the victim of the offender's criminal
conduct;
(6) the offender has no prior history of conviction
for a criminal act or has led a law-abiding life for a
substantial period of time before the commission of the
present crime;
(7) the offender's criminal conduct was the result
of circumstances that are unlikely to recur;
(8) the character and attitude of the offender
indicate that the offender is likely to commit another
crime;
(9) the offender is likely to respond quickly to
correctional or rehabilitative treatment; and
(10) imprisonment of the offender would create an
excessive hardship on the offender or the offender's
family.
Section 46-18-225, MCA (1993).
Sections 46-18-201(10) and -225, therefore, require a district
court to: (1) consider alternatives to imprisonment; (2) examine
the criteria set forth at 46-18-225, MCA (1993); and (3) state
the reasons for its decision if an alternative to imprisonment is
not selected. These statutes, however, do not require a district
court to sentence a nonviolent felony offender to an alternative to
imprisonment. Instead, they allow a district court to impose an
alternative sentence when the circumstances warrant such a
disposition.
Likewise, although a district court must examine the criteria
set forth at 46-18-225, MCA (1993), that statute neither provides
a formula by which a district court can determine whether an
alternative to imprisonment is appropriate, nor does it indicate
that greater consideration should be given to any one of the
statutory criteria than to the others.
We have held that district courts are consistently granted
broad discretion to determine the appropriate punishment, and that
we will not review a sentence on appeal for mere disparity or
inequity. State v. Graveley (1996), 275 Mont. 519, 521, 915 P.2d
184, 186; State v. DeSalvo (1995), 273 Mont. 343, 346, 903 P.2d
202, 204; State v. Hembd (1992), 254 Mont. 407, 411, 838 P.2d 412,
415. Furthermore, the district court is in the best position to
weigh the evidence, judge the credibility of witnesses, and resolve
conflicts in the evidence. Bower, 254 Mont. at 8, 833 P.2d at
1111. Finally, we have previously held that although "a criminal
defendant has a right to a sentence based upon substantially
correct information, we will not strain . . . to find a mistake.
Rather, the District Court is presumed to be correct." State v.
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Petroff (1988), 232 Mont. 20, 23, 757 P.2d 759, 761 (citation
omitted).
At both the sentencing hearing and the hearing on the motion
for reconsideration, Alden presented evidence and witnesses in
support of his contention that alternatives to imprisonment were
appropriate in his case.
However, the District Court considered alternatives to
imprisonment, examined the criteria set forth at 46-18-225, MCA
(1993), and, in its written order, stated its reasons, based on the
criteria set forth at 46-18-225, MCA (1993), why alternatives to
imprisonment were not selected.
Furthermore, we conclude that evidence was presented which
supports the findings on which the District Court's sentence was
based, and that its findings were not clearly erroneous. That
evidence consisted of the following documents or facts: the
presentence investigation report and its attachments; Alden's
admission that he had molested children in the past; the absence of
an excuse or provocation for the commission of the acts alleged in
this case; the apparent ineffectiveness of prior treatment; the
possibility that Alden would re-offend in the future; the need to
protect society, particularly children who are at risk; and the
seriousness of the crimes charged.
Therefore, we conclude that the District Court did not err
when it sentenced Alden to a term of imprisonment. Accordingly,
the judgment of the District Court is affirmed.
/S/ TERRY N. TRIEWEILER
We Concur:
/S/ J. A. TURNAGE
/S/ JIM REGNIER
/S/ KARLA M. GRAY
/S/ WILLIAM E. HUNT, SR.
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