No. 01-410
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 333
STATE OF MONTANA,
Plaintiff and Respondent,
v.
RICHARD EDWARD SHREVES,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Jeffrey M. Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Randi M. Hood, Chief Public Defender, Helena, Montana
For Respondent:
Mike McGrath, Montana Attorney General, Tammy K. Plubell, Assistant
Montana Attorney General, Helena, Montana; Leo Gallagher, Lewis and Clark
County Attorney, Lisa Leckie, Deputy Lewis and Clark County Attorney,
Helena, Montana
Submitted on Briefs: March 21, 2002
Decided: December 20, 2002
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Appellant Richard Shreves (Shreves) appeals the sentence imposed on him by the First
Judicial District Court, Lewis and Clark County. Shreves asserts the District Court violated his right
against self incrimination by basing his sentence in part on his failure to show remorse or accept
responsibility for his crime. We reverse and remand for resentencing consistent with this Opinion.
¶2 We address the following issue on appeal: Did the District Court violate Shreves’ right
against self incrimination by basing its sentence in part on his failure to show remorse or accept
responsibility for his crime?
I. FACTUAL AND PROCEDURAL BACKGROUND
¶3 On January 18, 2001, the District Court sentenced Shreves to the Montana State Prison for
100 years, with no parole for 60 years, after a jury verdict finding him guilty of the deliberate
homicide of Walker Byrd. The District Court based its sentence on its assessment that Shreves is a
violent and dangerous offender; on Shreves’ extensive past history of violence; on the nature of
Shreves’ offense which it characterized as a cold-blooded, premeditated killing; and on Shreves’
failure to show remorse or accept responsibility for his actions. Based on these same findings, the
District Court also put a restriction on Shreves’ parole eligibility for the protection of society. See §
46-18-202(2), MCA.
¶4 At trial, Shreves chose to testify on his own behalf and assert his innocence. At sentencing,
Shreves chose not to testify, but his counsel indicated he maintained his innocence. Because this
case presents the issue of whether an adverse inference may be drawn from a defendant’s silence at
sentencing, we discuss the hearing record regarding Shreves’ silence in detail.
¶5 At the sentencing hearing, Gina Rasmussen (Rasmussen), the person who compiled the
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presentence investigation report, testified that she based her 100 year recommended sentence in part
on the fact that Shreves did not admit the crime to her. Her testimony was as follows:
Deputy County Attorney: Do you think any lesser degree of time or incarceration is
appropriate?
Witness: Not at this point. I explained to Mr. Shreves that without a motive or
without remorse or accountability, it is very hard to understand why people do what
they do. And as it stands right now, he’s not safe to be out on the streets.
...
Defense Counsel: Okay. You have in part, am I correct, that you have based your
recommendation, your term of years, on the fact that Mr. Shreves does not admit to
this offense?
Witness: That is part of the reasoning. It would be hard to gauge any sense of
rehabilitation without him admitting any wrongdoing.
Defense Counsel: He’s sort of in a Catch-22, though, isn’t he?
Witness: He is, and it was explained to him, too, by myself a couple different times.
Defense Counsel: So -- but you did use that as a factor?
Witness: I used that as a factor, but I also used the wishes of the victim’s family.
Defense Counsel: And were there any other factors?
Witness: The seriousness of the offense, his history, the wishes of the victim’s
family, and his refusal to take responsibility for the crime.
...
Defense Counsel: And when you interviewed Mr. Shreves, he was coherent . . . And
cooperative?
Witness: Yes.
Defense Counsel: Other than telling you what you wanted to hear about this crime,
right?
Witness: Right.
¶6 Shreves’ counsel indicated that Shreves wanted to remain silent at sentencing. She stated:
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Richard Shreves . . . continues to maintain his innocence in this matter. . . . I think
it’s unfortunate that he is placed in the position with the PSI writing that he either has
to admit doing something he still currently says he did not do or he pays a greater
price for that. He does have legal avenues still open to him that would be, if he were
to choose to pursue any of those, any admissions he made, if he just simply made
admissions to get a better recommendation out of the PSI officer, it could certainly
impact upon those further proceedings contrary to his interests. So I think it is wrong
to hold that against him. I think he can still pursue other avenues like appeal and that
sort of thing without having to suffer for exercising those legal rights.
¶7 After hearing the testimony and closing arguments, the District Court stated:
Court: Mr. Shreves, do you have anything you want to say? You don’t have to say
anything.
Shreves: No, sir.
Court: Okay. Very good. I am going to impose a parole restriction. I need to tell you
why. I’m doing it based on the pre-sentence investigation. The law is forgiving for
those who deserve it and are eligible, but the law is also unforgiving for those who
don’t. And as we sit here, you’ve given us nothing as to why this happened. So what
we’ve got is what appears to be the premeditated killing of an individual with no
remorse or responsibility shown on your part. Your past record shows you to be a
violent and dangerous individual. And I think a parole restriction is necessary for the
protection of society. Therefore, for the deliberate homicide of Walker Byrd, I will
sentence you to 100 years at the Montana State Prison. And I disagree with the
county attorney. I don’t think for taking someone’s life you should be eligible for
parole in 30 years. So I’m going to double that. In 60 years you would be eligible
for parole. That will be the restriction. (Emphasis added)
In its later order, the District Court stated:
The Court imposed the foregoing sentence for the following reasons: the defendant is
a violent, dangerous offender, and has been in the past; the nature of his offense was
a cold-blooded, premeditated killing; a failure to show remorse or responsibility for
his action; and a restriction must be set on defendant’s parole eligibility for the
protection of society. (Emphasis added)
Shreves now appeals his sentence, asserting it was improper for the District Court to hold his refusal
to admit to the crime against him in determining his sentence.
II. STANDARD OF REVIEW
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¶8 This Court reviews a criminal sentence for legality only. State v. Montoya, 1999 MT 180, ¶¶
11-15, 295 Mont. 288, ¶¶ 11-15, 983 P.2d 937, ¶¶ 11-15. Although the State asserts that abuse of
discretion is the proper standard and cites State v. Richards (1997), 285 Mont. 322, 948 P.2d 240, in
its support, we took the opportunity in Montoya to discuss the origins of any confusion regarding the
standard of review for sentences. We made clear that we review for legality only and we overruled
any cases to the extent those cases used an abuse of discretion standard. While Richards was not
specifically cited in Montoya, we take this opportunity to reaffirm that we review a sentence for
legality only.
III. DISCUSSION
¶9 Did the District Court violate Shreves’ right against self incrimination by basing its
sentence in part on his failure to show remorse or accept responsibility for his crime?
¶10 Under the Fifth Amendment of the United States Constitution and Article II, Section 25 of
the Montana Constitution, defendants have the right to remain silent and not incriminate themselves
in criminal proceedings. We have previously held that the state constitutional guarantee with respect
to a defendant's right to remain silent affords the same protection as that under the federal
constitution. State v. Armstrong (1976), 170 Mont. 256, 260, 552 P.2d 616, 619 overruled in part by
State v. Johnson (1986), 221 Mont. 503, 512-14, 719 P.2d 1248, 1254-55; compare Fifth
Amendment: “[No person] shall be compelled in any criminal case to be a witness against
himself” to Mont. Const. Art. II, Sec. 25: “No person shall be compelled to testify against
himself in a criminal proceeding.” However, in Johnson, we held that Montana’s state
constitutional rights may be broader than federal constitutional rights, even when the
language is similar. Johnson, 221 Mont. at 512-14, 719 P.2d at 1254-55 (holding
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Montana Constitution grants broader rights regarding requests for counsel). See also
State v. Fuller (1996), 276 Mont. 155, 160, 915 P.2d 809, 812 (implying defendant’s rights
are the same under the federal and Montana constitutions, but granting rights broader than
those established to date under federal law).
¶11 Before we turn to the issue presented by this case, we first address three preliminary matters
that are important in the context of defendant’s appeal. First, in order to obtain the constitutional
protection against self incrimination, the general rule is that a defendant must first invoke his right to
remain silent. Fuller, 276 Mont. at 160, 915 P.2d at 812. In this case, Shreves testified at trial but
chose not to speak at sentencing. Further, his counsel made clear that his choice not to speak at
sentencing was because he still had legal avenues to pursue, that it was “wrong to hold that [silence]
against him,” and that he should not “suffer for exercising those legal rights.” We deem Shreves’
actions and his counsel’s statements sufficient to invoke his right to remain silent at sentencing.
Therefore, we need not address whether this situation is one for which the requirement to invoke the
privilege against self incrimination is excused, whether Shreves’ statements were compelled, or
whether Shreves’ testimony at trial acted as a waiver of the right after the jury delivered a guilty
verdict.
¶12 Second, a court's oral pronouncement of sentence controls over a subsequent written sentence
when there is a conflict between the two. State v. Lane, 1998 MT 76, ¶ 40, 288 Mont. 286, ¶ 40, 957
P.2d 9, ¶ 40. In this case, the District Court stated during the oral pronouncement that the parole
restriction was based on Shreves’ lack of remorse. However, the later written order stated that “the
foregoing sentence,” which we interpret here to mean the total 100 year sentence and the parole
restriction, was based in large part on Shreves’ lack of remorse. We conclude that here the
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distinction between the oral sentence and the written sentence is one without a difference because it
is clear the District Court considered Shreves' lack of remorse as a general factor in determining the
entire sentence. Therefore, Shreves’ entire 100 year sentence and the parole restriction are based in
significant part on Shreves’ refusal to admit guilt.
¶13 Third, a sentencing court can consider any evidence relevant to a defendant’s sentence,
including evidence relating to the crime, the defendant's character, background history, mental and
physical condition, and any other evidence the court considers to have probative force. State v.
Collier (1996), 277 Mont. 46, 63, 919 P.2d 376, 387. Therefore, this decision is not based on the
evidence presented to the District Court, but rather on the District Court’s decision to base its
sentence in large part specifically on Shreves’ refusal to admit to the crime.
¶14 Having addressed these preliminary matters, we now turn to the case law relevant to the issue
presented--a question of first impression for this Court. First, we must recognize certain
fundamental rules that have bearing here. For example, it is a violation of due process to punish a
person for exercising a constitutional right. State v. Kelly (1994), 265 Mont. 298, 301, 876 P.2d 641,
644. Furthermore, we have followed federal law in holding that a defendant’s silence at criminal
trial cannot be used as evidence against him. State v. Wilkins (1987), 229 Mont. 78, 81, 746 P.2d
588, 589 (citing Griffin v. California (1965), 380 U.S. 609, 614, 85 S.Ct. 1229, 1232, 14 L.Ed.2d
106, 109). We have also held that the privilege against self incrimination “does not turn upon the
type of proceeding in which its protection is invoked, but [rather] upon the nature of the statement or
admission and the exposure which it invites." Fuller, 276 Mont. at 160, 915 P.2d at 812 (citing
Estelle v. Smith (1981), 451 U.S. 454, 462, 101 S.Ct. 1866, 1873, 68 L.Ed.2d 359). Accordingly, the
protection against self incrimination extends beyond trial to those already convicted of crime and
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applies to punishment as well as the determination of guilt. Fuller, 276 Mont. at 160, 915 P.2d at
812; Estelle, 451 U.S. at 462-63, 101 S.Ct. at 1872-73. Given these rules, this case presents the
question of whether the rule against a negative inference from silence at criminal trial applies to
sentencing as well, when the defendant has maintained his innocence throughout the proceedings.
¶15 Shreves asserts that the District Court violated his right against self incrimination by basing
its sentence in large part on his failure to admit to the crime. The State argues that the District Court
properly considered Shreves’ lack of remorse as a factor relevant to Shreves’ rehabilitation and the
danger he presented to the community. The State argues that the District Court found Shreves
lacked remorse based on his trial testimony and the other evidence before it.
¶16 We have previously reversed sentences based on violation of the constitutional right to
remain silent. In State v. Imlay (1991), 249 Mont. 82, 91, 813 P.2d 979, 985, we held that it is a
constitutional violation to revoke the suspended sentence of a person who refuses to confess guilt in
a sexual therapy program. We followed Imlay in Fuller when we held that a defendant’s confessions
of guilt to additional crimes in a sexual therapy program required as a condition of his suspended
sentence could not be used as the basis of subsequent additional convictions. Fuller, 276 Mont. at
167, 915 P.2d at 816. In Kelly, 265 Mont. at 302, 876 P.2d at 644, we reversed the trial court when
it specifically referred to the defendant’s silence at trial as a basis for its sentence.
¶17 In State v. Henrich (1994), 268 Mont. 258, 272-73, 886 P.2d 402, 411, however, we affirmed
a sentence of the District Court even though the defendant claimed the counselor who performed a
presentence sexual evaluation violated his right to remain silent by recommending incarceration in
part on his failure to admit to the crime. In that case, we held that the trial court did not base its
decision on the defendant’s refusal to admit guilt, but rather on the defendant’s dangerousness,
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characteristics, the presentence investigations, criminal record, conduct, psychological reports and
on finding that the defendant’s prospects of rehabilitation were slim. While we did not address the
fact that the finding that the defendant’s prospects of rehabilitation were slim was based in part on
the defendant’s refusal to admit guilt, we did emphasize that there was sufficient basis for the
sentence.
¶18 The United States Supreme Court has also reversed sentences based on the violation of the
right to remain silent. For example, in Estelle, the Court held that the phrase “criminal case” in the
Fifth Amendment includes the sentencing phase of a conviction. Estelle, 451 U.S. at 462, 101 S.Ct.
at 1873. The Court went on to hold that use of a psychiatrist’s testimony from a pretrial competency
interview violated the defendant’s right to silence at sentencing because the defendant was not given
Miranda warnings before the interview. The Court noted that the testimony was used to prove an
element required to be proven beyond a reasonable doubt under Texas law for death penalty cases.
In Mitchell v. United States (1999), 526 U.S. 314, 119 S.Ct. 1307, 143 L.Ed.2d 424, the Court
reversed a sentence where the district court held the defendant’s silence against her on a specific fact
determinative of the length of her sentence under the federal sentencing guidelines.
¶19 In contrast to these cases, the State cites to a number of other jurisdictions that have
considered arguments similar to Shreves’ position and have upheld the defendants’ sentences. These
cases hold that a court may consider lack of remorse as basis for a sentence, but may not punish a
defendant for refusing to admit guilt. See Bergmann v. McCaughtry (7th Cir. 1995), 65 F.3d 1372,
1379; United States v. Johnson (7th Cir. 1990), 903 F.2d 1084, 1090; People v. Coleman (Ill. App.
Ct. 1985), 481 N.E.2d 335; People v. Wesley (Mich. 1987), 411 N.W.2d 159; Jennings v. State (Md.
1995), 664 A.2d 903. However, the cases all also note that “it is difficult to distinguish between
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punishing a defendant for remaining silent and properly considering a defendant's failure to show
remorse in setting a sentence.” Bergmann, 65 F.3d at 1379.
¶20 In this case, we are unable to make such a distinction. Shreves maintained his innocence at
trial and at sentencing. He remained silent at sentencing. Yet, the District Court based its sentence
in large part on Shreves’ lack of remorse and analogized that lack of remorse to Shreves’ silence.
Specifically, the court stated, “[A]s we sit here, you’ve given us nothing as to why this happened.”
The court then based its sentence on Shreves’ failure to “give” the court something about why the
crime happened. While we agree with the State that rehabilitation is an important factor to consider
at sentencing and, while we agree that lack of remorse can be considered as a factor in sentencing,
we cannot uphold a sentence that is based on a refusal to admit guilt. To do so would reflect an
inquisitorial system of justice rather than our adversarial system. Griffin, 380 U.S. at 614, 85 S.Ct.
at 1232. Therefore, we hold that the District Court improperly penalized Shreves for maintaining his
innocence pursuant to his constitutional right to remain silent.
¶21 In so holding, we make clear that the trial court can consider as a sentencing factor a
defendant's lack of remorse as evidenced by any admissible statement made by the defendant pre-
trial, at trial, or post-trial. Moreover, a defendant's lack of remorse may be gleaned, without more,
from the manner of the commission of the offense as demonstrated by the evidence at trial or from
other competent evidence properly admitted at the sentencing hearing.
¶22 The rule of the case at bar is a narrow one and is grounded in the state and federal
constitutional protections against self incrimination. It is simply this: a sentencing court may not
draw a negative inference of lack of remorse from the defendant's silence at sentencing where he has
maintained, throughout the proceedings, that he did not commit the offense of which he stands
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convicted--i.e. that he is actually innocent.
¶23 To allow sentencing courts to do otherwise would force upon the defendant the Hobson's
choice we discussed in Fuller and which is condemned by the Fifth Amendment and Article II,
Section 25--specifically, that the defendant must either incriminate himself at the sentencing hearing
and show remorse (with respect to a crime he claims he did not commit) or, in the alternative, stand
on his right to remain silent and suffer the imposition of a greater sentence. To compel that of a
defendant is constitutionally impermissible.
IV. CONCLUSION
¶24 The District Court violated Shreves’ right against self incrimination when it based its
sentence in large part on Shreves’ refusal to admit to his crime and show remorse at sentencing.
¶25 We reverse and remand for resentencing consistent with this Opinion.
/S/ JAMES C. NELSON
We Concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
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Justice Jim Rice dissenting.
¶26 I respectfully dissent.
¶27 I agree with the legal reasoning provided by the Court, and the rule which results therefrom:
a sentencing court may consider lack of remorse, but it “may not draw a negative maintained,
throughout the proceedings, that he did not commit the offense of which he stands convicted . . . .” I
have no disagreement with this principle; it is the application here, based upon this record, with
which I disagree. I simply do not draw the conclusion from the record as a whole, as the Court does,
that the District Court imposed sentence on the basis of the Defendant’s silence.
¶28 After taking arguments from counsel, the sentencing court first asked the Defendant if he
wanted say something, adding, “You don’t have to say anything.” Thus, the court specifically
acknowledged Defendant’s right to remain silent. After the Defendant declined, the court then
stated that it intended to impose a parole restriction based upon the pre-sentence investigation. The
PSI had presented a devastating picture of the Defendant, concluding that he had not been required
by his family to take responsibility for previous actions, that his chances of rehabilitation were “very
poor,” but further, and most significantly, that the Defendant did not value human life (“he has no
regrets about taking the life of another”) and had belittled the victim’s death (quoting Defendant as
stating “I’m a better shot than that”). This certainly supported a conclusion that the Defendant
lacked remorse for the crime or for the loss of human life.
¶29 Then, the court stated:
[A]s we sit here, you’ve given us nothing as to why this happened. So what we’ve
got is what appears to be the premeditated killing of an individual with no remorse or
responsibility shown on your part.
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I understand from this comment that the court was summing up the evidence which had been
presented to it. As was his right, acknowledged by the court, the Defendant had offered nothing. He
offered no evidence to rebut the PSI or to suggest an alternative to its recommendations. Thus, the
court was left to make a decision based upon the State’s evidence, and I find the court’s simple
noting of that conclusion to be innocuous. Just as a prosecutor can argue in trial that the defense has
failed to offer opposition to the State’s witnesses without it being considered an improper comment
upon a defendant’s right to silence, State v. Rodarte, 2002 MT 317, ___ Mont. ___, ___ P.3d ___, it
is permissible for a judge to state that the State has provided evidence and the defendant has not. A
sentencing judge is certainly entitled to assume that the presumption of innocense no longer exists,
and that the defendant stands guilty of the crime charged. That a sentencing judge makes comments
reflecting on these principles should not invalidate the sentence.
¶30 My interpretation of the sentencing court’s comments is confirmed by the written
judgment, which cites lack of remorse and other factors in support of the sentence, but states
nothing about the Defendant’s silence nor his failure to admit to the crime. It is also notable
that, during the oral imposition of sentence, the court did not state that it was imposing a
sentence based upon the Defendant’s silence or his failure to admit to the crime. That
conclusion is one which the Court draws from its interpretation of the judge’s words.
¶31 I would affirm.
/S/ JIM RICE
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