State v. Petroff

No. 87-154
IN THE SUPREME COURT OF THE STATE OF MONTANA

1988

STATE OF MONTANA,
Plaintiff and Respondent,
-VS-,
WILLIAM PETROFF,
Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District
In and for the County of Missoula
The Honorable Jack L. Green, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Carol Mitchell, Missoula, MT
For Respondent:
Honorable Mike Greely, Attorney General, Helena, MT
Barbara Claassen, Assistant Attorney General
Robert L. Deschamps, 111, County Attorney, Missoula, MT
Edward McClain, Deputy County Attorney

Submitted on Briefs: March 31, 1988
Decided: May 6 , 1988

Filed: - 1988

Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Defendant (Petroff) appeals from the sentence imposed
by the District Court of the Fourth Judicial District,
Missoula County. We affirm.
The issues before the Court are:
1. Did the District Court properly delineate its
reasons for imposing sentence?
2. Did the District Court improperly rely on erroneous
information in sentencing Petroff?
On October 14, 1983, an information was filed charging
Petroff with two counts of felony bad check writing. The
first count charged the issuance of a $ 7 0 0 bad check; the
second count charged the issuance of a $ 2 0 0 bad check as part
of a common scheme. The record indicates that Petroff had
written several other checks without sufficient funds to
cover the drafts.
Following the District Court's rejection of the initial
plea bargain, Petroff plead guilty on Count I1 of the infor-
mation. Count I was dismissed on the request of the State.
The matter of sentencing came before the court on
October 15, 1984. At that time, the District Court deferred
imposition of sentence for a period of three years, provided
that Petroff abide by certain conditions. The conditions
imposed required, inter alia, that Petroff pay restitution in
the amount of $2,561.35; that he abstain from maintaining a
checking account; that he maintain contact with his Probation
Officer; that he receive permission before changing his place
of residence; and that he seek and maintain employment.
A petition requesting revocation of probation and
imposition of sentence was filed on October 15, 1985. The
petition alleged Petroff had failed to make restitution
payments since May, 1985. The petition was subsequently
dismissed upon payment of the arrearage.
A second petition requesting revocation of probation
and imposition of sentence was filed on May 22, 1986. The
petition alleged, and Petroff subsequently admitted, that he
had failed to pay restitution; that he had failed to maintain
contact with his Probation Officer; that he had moved without
permission; and that he failed to maintain employment.
Following extradition from Georgia and admission of the
probation violations, the District Court sentenced Petroff to
ten years in prison, with three years suspended. Although
the District Court did not state reasons for the sentence at
that time, its judgment filed March 11, 1987, states the
following:
The reasons for the judgment are as follows:
1. The recommendations of the Pre-Sentence
Investigation;
2. The Defendant's prior criminal record.
Petroff moved for reconsideration of sentence based on
alleged inaccuracies in the pre-sentence investigation. The
motion for reconsideration was heard by the District Court on
March 19, 1987. At that time, the following exchange
occurred:
THE COURT: Well, this case has a fairly extensive
history. It goes back to a plea bargain in 1984
and a Judgment from that date. Thereafter, a
probation violation, one dated October 10, 1985,
one dated October -- or May 9, 1986. He's been
given two chances before this.
What is going to change things at this time, Mr.
Mansch?
 THE COURT: Well, you have been given two opportu-
nities in the past. I gave you two breaks before,
and this time you had to be brought back from the
state of Georgia.
I think my judgment is very fair ... and the
judgment will stand.
The first specification of error concerns the District
Court's alleged failure to state the reasons for the sentence
imposed. Petroff argues, in effect, that the statement
contained within the judgment, standing alone, is insuffi-
cient. We disagree.
Generally, the manner and extent of punishment is
vested in the sound discretion of the trial court. However,
in State v. Stumpf (198O), 187 Mont. 225, 609 P.2d 298, we
recognized that the requirements of basic fairness mandate
the acknowledgement of a criminal defendant's right to be
informed of the reasons underlying his or her punishment. We
also noted the adverse effect the failure to state such
reasons had on the ability of an appellate court, and the
Sentence Review Board, to conduct an informed evaluation of a
case. 187 Mont. at 227, 609 P.2d at 299. The Stumpf ration-
ale does not impose a duty upon the District Court to set
forth its reasoning orally in open court and in writing,
however.
From the record, it is clear that the judgment clearly
informed Petroff of the reasons underlying his sentence. No
more is required. See, State v. Johnson (~ont.1986), 719
P.2d 1248, 43 St.Rep. 1010.
Petroff also contends that the District Court relied
upon incorrect information in sentencing him. Specifically,
that the court wrongly assumed that Petroff had two previous
probation violations. We find Petroff's argument strained at
best.
 Although this Court has held that a criminal defendant
has a right to a sentence based upon substantially correct
information, State v. Herrera (1982), 197 Mont. 462, 643 P.2d
588, we will not strain at worst-case assumptions in order to
find a mistake. Rather, the District Court is presumed to be
correct. State v. Lane (1977), 175 Mont. 225, 573 P.2d 198;
Petition of Meidinger (1975), 168 Mont. 7, 539 P.2d 1185.
The statements of the District Court, reproduced infra,
do not indicate that the court felt Petroff had two chances
to correct probation violations and failed to do so. Rather,
the District Court correctly recognized that Petroff had two
prior chances to avoid a more severe penalty, namely, the
deferred imposition of sentence and forgiving the allegations
contained within the first petition to revoke.
The judgment of the District Court is affirmed.

Justice 1

We concur: