Bauer v. State, 98-553.

• Decision Date: 03 August 1999
• Docket Number: No. 98-553.,98-553.
• Citation: 983 P.2d 955,1999 MT 185
• Parties: Chester R. BAUER, Petitioner and Appellant, v. STATE of Montana, Respondent and Respondent.
• Court: Montana Supreme Court

983 P.2d 955

1999 MT 185

Chester R. BAUER, Petitioner and Appellant, v. STATE of Montana, Respondent and Respondent.

No. 98-553.

Supreme Court of Montana.

Submitted on Briefs April 22, 1999.

Decided August 3, 1999.

William F. Hooks, Montana Appellate Defender Office, Helena, Montana, For Appellant.

Joseph P. Mazurek, Attorney General, Cregg W. Coughlin, Assistant Attorney General, Helena, Montana, Mark Harshman, Blaine County Attorney, Chinook, Montana, For Respondent.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 Chester R. Bauer (Bauer) appeals from the denial of his petition for post-conviction relief by the Seventeenth Judicial District Court, Blaine County. We reverse and remand for resentencing.

¶ 2 The sole issue on appeal is whether the District Court erred in concluding that Bauer was not entitled to resentencing on due process grounds.

Factual and Procedural Background

¶ 3 In 1983, Bauer was charged with and convicted of the felony offenses of Sexual Intercourse Without Consent and Aggravated Assault in the Second Judicial District Court, Silver Bow County. Pursuant to those convictions, Bauer was sentenced to a term of twenty years in the Montana State Prison for the first charge and a term of ten years for the second charge, with the two sentences to be served concurrently. Bauer's sentence for the offense of Sexual Intercourse Without Consent was also enhanced with a ten-year term for the use of a weapon, to be served consecutively to the other sentences.

¶ 4 In 1991, roughly eight years after Bauer had begun serving his Silver Bow County sentences, he was charged with Intimidation, a felony, in the Third Judicial District Court, Powell County. Bauer subsequently pleaded guilty to the intimidation charge and was sentenced to a term of five years in the Montana State Prison, to be served consecutively to the Silver Bow County sentences.

¶ 5 At some point after the 1991 riots at the Montana State Prison, the State of Montana (the State) transferred Bauer to the Blaine County Jail. Thereafter, on October 10, 1995, the State charged Bauer with three offenses—Sexual Intercourse Without Consent, Intimidation, and Escape—arising out of an incident with a female inmate at the Blaine County Jail. Following a jury trial, Bauer was convicted on all three charges in March of 1996.

¶ 6 On March 20, 1996, Bauer's counsel moved the District Court to inquire into possible jury misconduct. Bauer argued that Blaine County media had represented that he had been previously convicted of the crime of Sexual Intercourse Without Consent, and that this information had possibly affected the deliberations of the jury, which was not sequestered during the course of trial. A hearing was held and the court granted Bauer's request for an inquiry into possible jury misconduct. The court established a procedure by which each juror was asked, in writing, if that juror had heard or been made aware of the news broadcasts during Bauer's trial, and, if so, whether he or she was able to disregard that information. When the results of the survey were tallied, "[s]ome of the twelve jurors" had "responded in the affirmative" to the former question; none of those jurors, however, answered the latter question negatively.

¶ 7 Bauer contended that the affirmative response of some jurors to the first question was sufficient to establish a presumption of juror misconduct and prejudice, and that he should therefore be entitled to a new trial. The State responded that those same jurors' negative response to the second question— that the news reports had not affected their deliberations—rebutted any presumption of prejudice. The District Court set an evidentiary hearing on the matter for August 26, 1996.

¶ 8 On the day of the scheduled evidentiary hearing, the parties filed a Stipulation which addressed the alleged jury misconduct as well as sentencing considerations. Pursuant to the Stipulation, the State agreed to make specific sentencing recommendations. The State recommended that Bauer "receive a maximum sentence on any count of 20 years in the Montana State Prison with ten years of that sentence suspended," and recommended that all of Bauer's sentences be ordered to run concurrently. The State also agreed in the Stipulation to "not recommend a fine," but reserved the right to recommend "conditions of probation."

¶ 9 Furthermore, the State agreed to make a specific recommendation as to when, in relation to his 1983 Silver Bow County sentences, Bauer should begin serving his Blaine County sentences. This recommendation acknowledged that Bauer was in the process of challenging his 1983 Silver Bow County convictions and, thus, turned upon a condition subsequent to the actual imposition of sentence for the Blaine County convictions. That is, the State conditionally agreed that if Bauer were successful in overturning his 1983 Silver Bow County convictions,

the sentence imposed by the court in this cause should run from the date that the information was filed against [Bauer].... If [Bauer] is not successful in having his 1983 conviction overturned then the sentence will commence at the time [Bauer] begins serving his sentence for intimidation as a result of a conviction in 1991 while in the Montana State Prison.

¶ 10 Under the Stipulation, if the sentencing court adopted these recommendations, Bauer agreed to forfeit his right to appeal. However, this agreement was not binding if the District Court did not adopt the State's recommendations:

[I]n exchange for this recommendation to the Court [Bauer] will give up his rights to an appeal in this case for any reason or on any grounds including post-conviction relief, provided however that if the Court imposes a sentence upon [Bauer] greater than that which the state herein has agreed to recommend to the Court then [Bauer] shall be entitled to pursue such appeal rights as he may see fit.

¶ 11 Pending sentencing, Bauer agreed to postpone the evidentiary hearing on jury misconduct. The District Court ordered the preparation of a presentence investigation report (PSI), which was prepared and submitted prior to the imposition of Bauer's sentences. The PSI expressly referred to Bauer's prior convictions and sentences in Silver Bow County, noting that Bauer had been convicted of the felony offenses of Sexual Intercourse Without Consent and Aggravated Assault in 1983. The author of the PSI recommended a "lengthy sentence in Montana State Prison" with a portion of that sentence suspended, stating particularly that "Mr. Bauer has a previous conviction for Sexual Intercourse Without Consent and this is the reason that Mr. Bauer is an inmate of Montana State Prison."

¶ 12 In its Judgment and Sentence issued October 11, 1996, the District Court expressly considered the PSI in sentencing Bauer. Although the court sentenced Bauer in substantial compliance with the Stipulation, it exceeded the State's sentencing recommendations by imposing a monetary fine on Bauer. The court, noting that Bauer was challenging his 1983 convictions in Silver Bow County, also provided that if Bauer were successful in having those convictions set aside, then his sentences would run from the date of the Judgment and Sentence and he would be credited with any time served from the date of the filing of the Information to the date of the imposition of the Blaine County sentences.

¶ 13 In May of 1997, Bauer filed an Amended Motion for New Trial or Other Appropriate Relief in the Second Judicial District Court, Silver Bow County, arguing in part that newly discovered DNA evidence obtained after his 1983 convictions exonerated him. Subsequently, the State filed a Notice indicating that it would not oppose Bauer's motion for a new trial, and that it would not seek to retry Bauer in the event that the 1983 convictions and sentences were vacated. On September 22, 1997, the Second Judicial District Court, Silver Bow County, issued its Order Vacating Convictions and Sentences, in which it found that Bauer was "actually innocent of the crimes with which he was charged, tried, convicted and sentenced." Based largely on the newly discovered evidence demonstrating that Bauer was "not guilty of the crimes," the court adjudged Bauer's 1983 Silver Bow County convictions and sentences "void." Accordingly, the court "vacated" Bauer's convictions and sentences and ordered the charges "dismissed with prejudice."

¶ 14 In March of 1998, Bauer filed a Petition for Post-Conviction Relief in the Seventeenth Judicial District Court, asserting that his state and federal constitutional rights to due process had been violated when the court had relied on the now incorrect information about his prior Silver Bow County convictions in imposing his Blaine County sentences. The State opposed Bauer's petition.

¶ 15 The District Court denied post-conviction relief without a hearing. First, the court concluded that, since it had sentenced Bauer in conformity with the State's sentencing recommendations, Bauer had waived any right to post-conviction relief pursuant to the Stipulation. Second, the District Court, while acknowledging that it had considered the PSI in imposing sentence, reasoned that Bauer's 1983 Silver Bow County convictions "were in serious jeopardy" at the time of sentencing and that the vacation of those convictions "was anticipated" when the court imposed Bauer's Blaine County sentences. The District Court concluded that it "did not rely on those convictions when imposing sentence in this matter" and, therefore, that Bauer was not entitled to resentencing on due process grounds.

Discussion

¶ 16 Did the District Court err in concluding that Bauer's due process rights were not violated since it did not rely on Bauer's prior convictions in imposing the current sentences?

¶ 17 We review a district court's denial of a petition for post-conviction relief to determine whether the court's findings are clearly erroneous...