State v. Herman

Decision Date29 May 2008
Docket NumberNo. DA 06-0427.,DA 06-0427.
Citation188 P.3d 978,2008 MT 187,343 Mont. 494
PartiesSTATE of Montana, Plaintiff and Appellee, v. Sheri Lee HERMAN, Defendant and Appellant.
CourtMontana Supreme Court
188 P.3d 978
2008 MT 187
343 Mont. 494
STATE of Montana, Plaintiff and Appellee,
v.
Sheri Lee HERMAN, Defendant and Appellant.
No. DA 06-0427.
Supreme Court of Montana.
Submitted on Briefs June 15, 2007.
Decided May 29, 2008.

[188 P.3d 980]

For Appellant: Jim Wheelis, Chief Appellate Defender; Joslyn M. Hunt, Assistant Appellate Defender, Helena, Montana.

For Appellee: Hon. Mike McGrath, Attorney General; Ilka Becker, Assistant Attorney General, Helena, Montana Dennis Paxinos, Yellowstone County Attorney; Ingrid Rosenquist, Deputy County Attorney, Billings, Montana.

Justice JOHN WARNER delivered the Opinion of the Court.


¶ 1 Sheri Herman appeals from a judgment in the Thirteenth Judicial District, Yellowstone County, finding her guilty of felony DUI, designating her a Persistent Felony Offender, and sentencing her to seven years at the Montana State Women's Prison.

¶ 2 We restate the issues on appeal as follows:

¶ 3 1. Does Herman present a record-based claim of ineffective assistance of counsel based on her counsel's failure to provide the District Court with a recently prepared psychological report?

¶ 4 2. Did the District Court err because it did not consider the psychological report which was mentioned by Herman at the sentencing hearing?

BACKGROUND

¶ 5 On May 17, 2005, the State charged Herman with felony driving a motor vehicle under the influence of alcohol, in violation of § 61-8-401, MCA. Herman initially pled not guilty. The State subsequently filed notice of its intent to seek Persistent Felony Offender designation for Herman based on her numerous prior DUI convictions.

¶ 6 Herman and the State later entered a non-binding plea agreement under which she would plead guilty to felony DUI, not protest the Persistent Felony Offender designation, and the State would recommend an eight-year sentence at the Montana State Women's Prison. Herman pled guilty pursuant to the plea agreement.

¶ 7 The District Court held a sentencing hearing on February 27, 2006. At the hearing, the District Court had before it a Pre-Sentence Investigation report, which documented Herman's lengthy history of alcohol-related crimes, including seven prior DUI convictions. It also included a letter submitted by her counsel stating that Herman had been attending counseling. Counsel argued to the Court concerning an appropriate sentence. Herman's counsel requested that the District Court impose a five-year term of imprisonment, and the State recommended eight years.

¶ 8 Herman spoke on her own behalf. She mentioned to the District Court that a psychological evaluation had been prepared which made treatment recommendations for her. Her counsel informed the judge that he was able to provide a copy of the report, although he had not previously given a copy to either the District Court or the State. The judge stated that it was "too late now" for the report and proceeded to designate Herman a Persistent Felony Offender and sentence her to seven years at the Montana State Women's Prison.

¶ 9 The District Court entered a written judgment on March 7, 2007. Herman now appeals the sentence imposed in the judgment.

STANDARDS OF REVIEW

¶ 10 A claim of ineffective assistance of counsel presents mixed questions of law and fact that we review de novo. State v. Kougl, 2004 MT 243, ¶ 12, 323 Mont. 6, ¶ 12, 97 P.3d 1095, ¶ 12.

188 P.3d 981

¶ 11 While the parties have not raised an issue regarding the correct standard of review, we take this opportunity to once again clarify that generally we review the imposition of a sentence for legality only, examining whether it is within the statutory parameters. State v. Vernes, 2006 MT 32, ¶ 27, 331 Mont. 129, ¶ 27, 130 P.3d 169, ¶ 27. In the past, this Court has stated that we will review a sentence for abuse of discretion. E.g. State v. Richards, 285 Mont. 322, 324, 948 P.2d 240, 241 (1997). In 1999, the Court held that we will only review sentences for legality, and we will not apply an abuse of discretion standard. State v. Montoya, 1999 MT 180, ¶ 15, 295 Mont. 288, ¶ 15, 983 P.2d 937, ¶ 15. Since deciding Montoya, we have established two narrow exceptions to this rule. First, if a defendant is sentenced to serve less than one year of actual incarceration, we will review a sentence both for legality and for abuse of discretion. State v. Herd, 2004 MT 85, ¶ 22, 320 Mont. 490, ¶ 22, 87 P.3d 1017, ¶ 22. Second, we will review for an abuse of discretion the reasonableness of conditions imposed on probation. State v. Ashby, 2008 MT 83, ¶ 9, 342 Mont. 187, ¶ 9, 179 P.3d 1164, ¶ 9.

¶ 12 Since deciding Montoya the Court has occasionally referred to the abuse of discretion standard in considering the appeal of a sentence. E.g. State v. McCaslin, 2004 MT 212, ¶ 17, 322 Mont. 350, ¶ 17, 96 P.3d 722, ¶ 17. We overrule our prior cases to the extent they state that this Court will review for an abuse of discretion a sentence which imposes one year or more of actual incarceration and which does not fall within either of the exceptions noted above.1

¶ 13 Herman argues that the procedure employed at her sentencing hearing violated her constitutional rights. This presents a question of law which we review de novo. State v. Mason, 2003 MT 371, ¶ 19, 319 Mont. 117, ¶ 19, 82 P.3d 903, ¶ 19.

DISCUSSION

¶ 14 Issue 1: Does Herman present a record-based claim of ineffective assistance of counsel based on her counsel's failure to provide the District Court with a recently prepared psychological report?

¶ 15 Herman claims that her lawyer was ineffective because he did not provide the District Court with a copy of a psychological assessment prior to the sentencing hearing. On direct appeal, we will generally only address a claim of ineffective assistance of counsel if the claim is...

To continue reading

Request your trial
64 cases
  • United States v. DeFrance
    • United States
    • U.S. District Court — District of Montana
    • December 29, 2021
    ...the Ross court concluded that in State v. Mason , 319 Mont. 117, 82 P.3d 903 (2003), overruled on other grounds by State v. Herman , 343 Mont. 494, 188 P.3d 978 (2008), "the Montana Supreme Court agreed that a defendant may be a ‘violent felony offender’ if he ‘causes serious bodily injury ......
  • State v. Miller
    • United States
    • Montana Supreme Court
    • May 17, 2022
    ...were improper[,]" but "[w]e agree with the State[ ]" that the "defendant was not silent"), overruled on other grounds by State v. Herman , 2008 MT 187, ¶12 n.1, 343 Mont. 494, 188 P.3d 978 ; Campbell , 241 Mont. at 327, 787 P.2d at 332 (when a defendant elects to testify at trial to deny "c......
  • State v. Valenzuela
    • United States
    • Montana Supreme Court
    • September 28, 2021
    ...which the other does not. State v. McQuiston, 277 Mont. 397, 405, 922 P.2d 519, 524 (1996), overruled in part on other grounds by State v. Herman, 2008 MT 187, ¶ 12 n.1, 343 494, 188 P.3d 978; Brown, 432 U.S. at 165-69, 97 S.Ct. at 2225-27; Blockburger, 284 U.S. at 304, 52 S.Ct. at 182. Con......
  • State v. Miller
    • United States
    • Montana Supreme Court
    • May 17, 2022
    ...agree with the State[]" that the "defendant was not silent"), overruled on other grounds by State v. Herman, 2008 MT 187, ¶12 n.1, 343 Mont. 494, 188 P.3d 978; Campbell, 241 Mont. at 327, 787 P.2d at 332 (when defendant elects to testify at trial to deny "commission of the crime" a "wide la......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT