State v. Morris

December 14 2010

DA 10-0302

IN THE SUPREME COURT OF THE STATE OF MONTANA

2010 MT 259

STATE OF MONTANA,

Plaintiff and Appellee,

v.

GAYLE ABRAHAM MORRIS,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. DDC 09-294(a)
Honorable Thomas M. McKittrick, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Nathan J. Hoines; Hoines Law Office, P.C., Great Falls, Montana

For Appellee:

Steve Bullock, Montana Attorney General; Mark W. Mattioli,
Assistant Attorney General, Helena, Montana

John Parker, Cascade County Attorney; Kory Larsen, Deputy Cascade
County Attorney, Great Falls, Montana

Submitted on Briefs: November 10, 2010

Decided: December 14, 2010

Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Gayle A. Morris pleaded no contest in the District Court of the Eighth Judicial

District, Cascade County, to Accountability to Prostitution and Obstructing a Peace

Officer or Other Public Servant. He now appeals his sentences. We affirm.

ISSUES

¶2 We restate Morris’ issues as follows:

¶3 1. Whether the District Court illegally sentenced Morris in violation of his

constitutional rights and Montana sentencing policy.

¶4 2. Whether the District Court abused its discretion when it sentenced Morris to

the maximum statutory penalty.

BACKGROUND

¶5 On July 9, 2009, Morris was charged with Promoting Prostitution, a felony

pursuant to § 45-5-602, MCA (2007). The charge resulted from a two-year investigation

of Really Windy’s Gentlemen’s Club, in Great Falls, of which Morris was the proprietor.

The supporting affidavit alleged that Morris knowingly promoted prostitution by

employing exotic dancers who performed sexual acts with male customers, on the

premises.

¶6 On May 17, 2010, Morris entered into a plea agreement with the Cascade County

Attorney. In exchange for the Promoting Prostitution charge being dropped, Morris

agreed to plead no contest to the amended charges of Accountability to Prostitution, § 45-

5-601(1), MCA, and Obstructing a Peace Officer or Other Public Servant, § 45-7-302,

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MCA. In the agreement, Morris acknowledged that sentencing was entirely within the

discretion of the presiding district court judge, subject to the limits of statutory and case

law. The County Attorney agreed to recommend that Morris pay a fine of $500, for each

offense, and a $35 surcharge, for each offense. Additionally, the County Attorney agreed

to recommend that Morris receive two suspended six-month sentences, to run

consecutively. Morris acknowledged that pursuant to § 45-12-211(2), MCA (2007), his

plea could not be withdrawn, even if the District Court decided to not accept the County

Attorney’s recommendation. The County Attorney filed an amended information

reflecting the new charges.

¶7 On June 3, 2010, Morris and the County Attorney agreed to a set of stipulated

facts supporting the amended information. Morris did not admit any of the facts but

stipulated that the State was capable of presenting them at trial. They included:

1. At all times specified in the amended information, the defendant Gayle
Morris, was the proprietor of Really Windy’s Gentleman’s Club.

. . .

6. Female dancers engaged in prostitution on the premises of Really
Windy’s Gentlemen’s Club by engaging in or offering to engage in
sexual intercourse with patrons.

. . .

9. Morris, knew, or should have known of these activities by dancers on
the premises of Really Windy’s Gentlemen’s Club.

. . .

11. Morris aided the dancers in the planning or commission of the offense
of prostitution by not taking action to end the activities.

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 12. Prior to the service of the search warrant in this case, Morris, while
cleaning the establishment, removed and/or destroyed condoms and
wrappers hindering the enforcement of criminal law.

¶8 On June 3, 2010, Morris appeared at a change of plea hearing. He advised the

court that he wanted to go forward with the plea agreement. The District Court accepted

the plea and sentenced Morris to the maximum statutory penalties. For the charge of

Accountability to Prostitution, Morris received six months in the Cascade County

Detention Center, with no time suspended, and a fine of $500. For the charge of

Obstructing a Peace Officer or Other Public Servant, Morris received six months in the

Cascade County Detention Center, with no time suspended, and a fine of $500. The

sentences were to run consecutively.

¶9 The court articulated eight reasons for Morris’ sentences: (1) The serious nature

of the offense, (2) harm to the community, (3) harm to the young women who were

brought into prostitution and the permanent damage to their lives, (4) the permanent

damage to other people in like situations, (5) the ripple effect of the crime on the

community, (6) the fact that Morris was a former Mayor of Great Falls and a former

Cascade County Commissioner indicated that he should have known better, (7) Morris

did not contest the charges and admitted the fact that he supported the charges, indicating

a high probability of conviction at trial, and (8) Morris’ conduct was unacceptable in the

community.

¶10 Morris appealed the sentences to this Court.

STANDARD OF REVIEW

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¶11 When an offender is not statutorily eligible for sentence review, this Court reviews

the sentence for legality and abuse of discretion. State v. Gunderson, 2010 MT 166, ¶ 37,

357 Mont. 142, 237 P.3d 74.

DISCUSSION

¶12 To be statutorily eligible for sentence review, a defendant must be sentenced to a

term of one year or more in the state prison or to the custody of the Department of

Corrections. Section 46-18-903(1), MCA. Morris was sentenced to two consecutive

terms of six months at the Cascade County Jail. As a result, Morris was not eligible for

sentence review and we review his sentences for legality and abuse of discretion.

¶13 Morris additionally invites the Court to review his sentences for “uniformity,” in a

manner similar to the Sentence Review Division. However, “‘sentence review is not a

constitutional right.’” State v. Hinkle, 2008 MT 217, ¶ 11, 344 Mont. 236, 186 P.3d 1279

(quoting State ex rel. Holt v. Dist. Ct., 2000 MT 142, ¶ 12, 300 Mont. 35, 3 P.3d 608).

The Legislature created sentence review statutorily and has the discretion to determine

which offenses are subject to such review. Id. Thus, we decline Morris’ invitation and

will review his sentences solely for legality and abuse of discretion. Hinkle, ¶ 11.

¶14 Whether the Sentences Were Illegal Because they Violated Morris’ Constitutional

Rights and Montana Sentencing Policy.

¶15 Generally, a sentence is legal if it falls within statutory limits. State v. Harper,

2006 MT 259, ¶ 17, 334 Mont. 138, 144 P.3d 826. Morris does not contend that he was

sentenced in excess of statutory authority. Instead, he argues that his sentences violate §

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46-18-101, MCA, his due process rights, and his Fifth Amendment right against self-

incrimination. We address each contention in turn.

a. Section 46-18-101, MCA

¶16 Section 46-18-101, MCA, sets forth Montana’s correctional and sentencing policy.

Specifically, § 46-18-101(3)(c), MCA, provides, “[s]entencing practices must be neutral

with respect to the offender’s race, gender, religion, national origin, or social or economic

status.” Morris argues that the District Court violated this policy when it considered his

status as a former mayor and former county commissioner. He equates prior public

service to a social or economic status. However, Morris fails to present any legal

authority, or argument, in support of such a contention. On appeal, the Appellant has the

burden to present legal authority that establishes error on the part of the district court.

State v. Giddings, 2009 MT 61, ¶ 69, 349 Mont. 347, 208 P.3d 363. Morris has failed to

demonstrate that his sentences violated § 46-18-101, MCA.

¶17 Moreover, “‘in imposing sentence, the sentencing court may consider any relevant

evidence relating to the nature and circumstances of the crime, the character of the

defendant, the defendant’s background history, mental and physical condition, and any

evidence the court considers to have probative force.’” Driver v. Sentence Rev. Div. in

the Sup. Ct. of Mont., 2010 MT 43, ¶ 17, 355 Mont. 273, 227 P.3d 1018 (quoting State v.

Collier, 277 Mont. 46, 63, 919 P.2d 376, 387 (1996)). Morris invited the District Court

to consider his history of public service and repeatedly touted the probative nature of his

former positions. He cannot now turn around and argue that such consideration was

improper merely because he dislikes the result.

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 b. Due Process

¶18 Morris argues that the District Court denied him due process of law because his

sentences were based on misinformation or information contained in the original

information and supporting affidavit. Both the Montana Constitution and United States

Constitution protect criminal defendants from being sentenced based on misinformation.

State v. Walker, 2007 MT 205, ¶ 22, 338 Mont. 529, 167 P.3d 879; Mont. Const. art. II, §

17; U.S. Const. amend. XIV. A criminal defendant must be allowed to “explain, argue,

and rebut any information . . . that may lead to the deprivation of life, liberty, or

property.” Walker, ¶ 22. However, due process is not violated if the sentencing court does

not rely on improper or erroneous information. State v. Mason, 2003 MT 371, ¶ 21, 319

Mont. 117, 82 P.3d 903, overruled in part State v. Herman, 2008 MT 187, ¶ 12, 343

Mont. 494, 188 P.3d 978. A defendant has the burden to prove that alleged

misinformation is materially inaccurate. Harper, ¶ 18.

¶19 We need not address the question of material inaccuracy, because Morris has

failed the threshold requirement of proving the District Court relied on misinformation.

The District Court explicitly based Morris’ sentences on the stipulated facts and his

voluntary responses at the hearing. Morris fails to point to any portion of the sentencing

order that reflects reliance on improper or erroneous information. In his Reply Brief,

Morris admits that the stipulated facts were sufficient to support his plea.

¶20 Morris challenges the District Court’s findings that he harmed the community,

caused a ripple effect in the community and was responsible for damage done to the

young women. A sentencing court must clearly state the reasons for the sentence

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imposed. Section 46-18-102(3)(b), MCA. A district court is in the best position to deal

with the evidence before it. State v. Alden, 282 Mont. 45, 51, 934 P.2d 210, 214 (1997).

We presume a sentencing court to be correct and do not strain to find a mistake. Id.

Here, the District Court complied with its statutory duty and provided eight reasons for

Morris’ sentence. Furthermore, the District Court presided over this action, had firsthand

knowledge of the issues involved and was in the best position to discern the reasons

Morris merited the sentences he received. Morris essentially invites the Court to strain to

find error, and we decline to do so.

¶21 Morris also challenges the evidentiary basis for the District Court’s finding that his

plea of no contest indicated a high probability of conviction at trial. The no contest plea

exists to allow a defendant to plead guilty, without admitting to a charge, when the record

contains strong evidence of guilt. Commission Comments to § 46-12-212, MCA. The

District Court’s finding was merely an articulation of this policy.

c. Self-Incrimination

¶22 Morris claims that his right against self-incrimination was violated because he was

punished for a lack of remorse and failure to admit he was wrong. A district court is

permitted to sentence a defendant based on lack of remorse so long as there is affirmative

evidence of the lack of remorse. State v. Rennaker, 2007 MT 10, ¶ 51, 335 Mont. 274,

150 P.3d 960. However, we will not uphold a sentence where a district court draws a

negative inference of lack of remorse as a result of a defendant’s invocation of his

constitutional right to remain silent and refusal to admit guilt. State v. Shreeves, 2002

MT 333, ¶ 22, 313 Mont. 252, 60 P.3d 991. Furthermore, “a sentencing court may not

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punish a defendant for failing to accept responsibility for the crime when that defendant

has expressly maintained his innocence and has a right to appeal his conviction.” State v.

Cesnik, 2005 MT 257, ¶ 25, 329 Mont. 63, 122 P.3d 456.

¶23 As a threshold matter, Morris’ argument fails because he does not establish that

the sentences were based on lack of remorse or failure to admit wrong-doing. The

District Court provided eight valid reasons for the sentences, none of which indicate any

reliance on lack of remorse or accountability. Morris offers a single instance where the

District Court inquired whether he felt remorse. This alone, does not establish that the

District Court relied on lack of remorse or accountability. Moreover, Morris offers no

explanation why, in the absence of an explicit finding, we should assume that the

sentences were based on lack of remorse or accountability.

¶24 Whether the District Court Abused its Discretion by Sentencing Morris to the

Maximum Penalty Allowed by Statute.

¶25 Finally, we turn to whether the District Court abused its discretion when it

sentenced Morris to two consecutive six-month prison terms, with no time suspended,

and two $500 fines. “An abuse of discretion occurs when a district court acts arbitrarily

without conscientious judgment or exceeds the bounds of reason.” State v. Cotterell,

2008 MT 409, ¶ 89, 347 Mont. 231, 198 P.3d 254. Morris argues that the District Court

abused its discretion because his sentences essentially constitute cruel and unusual

punishment. We disagree.

¶26 The District Court provided eight valid reasons for the statutorily-authorized

sentences. Notably, the District Court was influenced by the fact that Morris’ previous

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public service indicated he should have known better. Furthermore, when Morris signed

the plea agreement, he was more than well aware of the potential maximum penalty. We

conclude that the District Court’s sentences were not arbitrary and did not exceed the

bounds of reason.

¶27 Affirmed.

/S/ MIKE McGRATH

We concur:

/S/ JIM RICE
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS

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