State v. McLeod

• Decision Date: 30 December 2002
• Docket Number: No. 01-140.,01-140.
• Citation: 61 P.3d 126,313 Mont. 358,2002 MT 348
• Parties: STATE of Montana, Plaintiff and Respondent, v. Ron McLEOD, Defendant and Appellant.
• Court: Montana Supreme Court

61 P.3d 126

2002 MT 348

313 Mont. 358

STATE of Montana, Plaintiff and Respondent, v. Ron McLEOD, Defendant and Appellant.

No. 01-140.

Supreme Court of Montana.

Submitted on Briefs November 29, 2001.

Decided December 30, 2002.

For Appellant: Chad Wright, Appellate Defender Office, Helena, Montana.

For Respondent: Hon. Mike McGrath, Attorney General; Micheal S. Wellenstein, Assistant Attorney General, Stephanie Shanler, Legal Intern Helena, Montana, Dennis Paxinos, Yellowstone County Attorney, Billings, Montana.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 The defendant, Ron McLeod (McLeod), pled guilty to one count of criminal possession of dangerous drugs, a felony in violation of § 45-9-102, MCA, and one count of criminal possession of drug paraphernalia, a misdemeanor in violation of § 45-10-103, MCA. The Montana Thirteenth Judicial District Court, Yellowstone County, sentenced McLeod to the maximum five-year sentence and $1,000 fine on count I and a concurrent six-month sentence on count II. McLeod now challenges the legality of the sentence. We affirm in part, reverse in part, and remand for further proceedings.

¶ 2 We rephrase the issues on appeal as follows:

¶ 3 1. Should this Court reverse and remand McLeod's sentence because the District Court relied on incorrect information in the pre-sentence investigation?

¶ 4 2. Did the District Court fail to make the required statutory findings regarding McLeod's ability to pay the $1,000 fine?

BACKGROUND

¶ 5 The facts in this case are undisputed. On April 19, 1999, agents of the Montana Division of Criminal Investigation and the United States Department of Justice, Drug Enforcement Administration, learned that McLeod was an occupant of a motel in Billings, Montana, and that he had outstanding felony arrest warrants.

¶ 6 Early the next morning, agents arrested McLeod as he was leaving the motel and performed a search of McLeod's person incident to arrest. During the search, a state officer recovered from McLeod's front left pants' pocket a glass pipe used for smoking methamphetamine and a glass vile containing a rock-like substance. The substance was submitted to the Montana Forensic Sciences Division for chemical analysis and the lab confirmed that the rock-like substance was methamphetamine. At his arraignment on August 12, 1999, McLeod pled not guilty to both charges.

¶ 7 Prior to his arrest on the outstanding warrants, McLeod had three previous felony convictions. Two of the convictions were for criminal possession of dangerous drugs and one was for conspiracy and possession with intent to distribute. The current offense is McLeod's fourth felony offense.

¶ 8 On March 14, 2000, the District Court granted McLeod's motion to withdraw his plea. McLeod then entered into a non-binding plea agreement with the State and, in exchange for the State withdrawing its notice of persistent felony offender and agreeing to follow the sentencing recommendation in the pre-sentence investigation report (PSI), McLeod changed his plea to guilty on both counts. The District Court accepted McLeod's guilty plea.

¶ 9 The Criminal History section of the PSI indicated that McLeod had two prior felonies for criminal possession of dangerous drugs and one previous felony for conspiracy to possess dangerous drugs with intent to distribute. However, under the Criminal History portion of the Comments section of the PSI, the PSI investigator incorrectly concluded that this current drug charge will be McLeod's fifth felony, whereas the Criminal History section of the PSI correctly reflected that this was McLeod's fourth felony. The PSI was, therefore, internally inconsistent with regard to the number of McLeod's previous felony offenses.

¶ 10 The PSI recommended that McLeod be sentenced to the Montana State Prison for a period of five years and be fined an amount of $1,000 based on his history of drug related felonies and misdemeanors over the course of a twenty-five year period, including three misdemeanors committed after the current offense. During the sentencing hearing, the District Court also stated, apparently relying on the incorrect section of the PSI, that this drug offense was McLeod's fifth felony. Neither McLeod nor his counsel, however, brought the discrepancy in the PSI to the District Court's attention.

¶ 11 The District Court sentenced McLeod to the maximum five-year sentence and fined him $1,000 under § 45-9-102, MCA. The District Court imposed an additional six-month sentence for count II, criminal possession of drug paraphernalia with intent to distribute. Section 45-10-103, MCA. McLeod now challenges the legality of his sentence.

STANDARD OF REVIEW

¶ 12 This Court reviews criminal sentences for legality only, that is, whether the sentence is within the parameters provided by statute. State v. Montoya, 1999 MT 180, ¶ 15, 295 Mont. 288, ¶ 15, 983 P.2d 937, ¶ 15. In a direct appeal, the defendant is limited to those issues that were properly preserved in the district court and to allegations that the sentence is illegal or exceeds statutory mandates. Section 46-20-104, MCA; State v. Lafley, 1998 MT 21, ¶ 26, 287 Mont. 276, ¶ 26, 954 P.2d 1112, ¶ 26 (citation omitted). We have held that a sentence is not illegal when it is within the parameters provided by statute. Lafley, ¶ 26; State v. Gunderson (1997), 282 Mont. 183, 187, 936 P.2d 804, 806; State v. Goulet (1996), 277 Mont. 308, 921 P.2d 1245; State v. Nelson (1995), 274 Mont. 11, 906 P.2d 663.

DISCUSSION

¶ 13 1. Should this Court reverse and remand McLeod's sentence because the District Court relied on incorrect information in the pre-sentence investigation?

¶ 14 The facts clearly demonstrate that McLeod extensively reviewed the PSI prior to the sentencing hearing and that he and his counsel were afforded an opportunity to discuss the content of the PSI prior to the hearing. It is also clear that neither objected to or challenged the content of the PSI that McLeod now challenges on appeal. At the sentencing hearing, counsel for McLeod stated, "I can inform the Court that we have been made available a presentence report in this case. Mr. McLeod has reviewed it extensively. We have talked about it to some extent. I see no cause not to go to sentencing at this time, Your Honor." At the court's inquiry as to whether changes should be made to the report, defense counsel responded:

Of relative concern to us was the criminal history, Your Honor. There is some extensive history. Mr. McLeod is not objecting to the representations made in the PSI relative to the criminal history. We would just add ... that Mr. McLeod has had no previous violations since 1993, almost seven years. But for that little discretion, Your Honor, we have no substantial changes or corrections or additions to the PSI.

¶ 15 Although neither McLeod nor his counsel objected to the content of the PSI relative to its representation of McLeod's criminal history, we initially conclude that this challenge is properly before this Court, as McLeod challenges only the legal validity of the sentence. See State v. Lenihan (1979), 184 Mont. 338, 343, 602 P.2d 997, 1000

(holding that the better rule is to allow appellate review of any sentence imposed in a criminal case, if it is alleged that such sentence is illegal or exceeds statutory mandates, even if no objection is made at the time of sentencing); accord State v. Brister, 2002 MT 13, ¶ 16, 308 Mont. 154, ¶ 16, 41 P.3d 314, ¶ 16.

¶ 16 While McLeod did not raise the issue in the District Court, McLeod now alleges that his sentence is illegal because it was predicated on misinformation about his criminal history, thus violating his due process rights in the Fourteenth Amendment of the United States Constitution and Article II, Section 17, of the Montana Constitution. This Court has previously held that a convicted defendant has a due process guarantee against a sentence predicated on misinformation. See State v. Orsborn (1976), 170 Mont. 480, 486, 555 P.2d 509, 513

.

¶ 17 McLeod argues that his situation is similar to that of the petitioner in Bauer v. State, 1999 MT 185, 295 Mont. 306, 983 P.2d 955. When sentencing the defendant in Bauer, the Blaine County District Court relied on information in the PSI that Bauer had been convicted of two previous felony convictions in Silver Bow County, convictions from which Bauer was later exonerated. Bauer thereafter filed a petition for post-conviction relief in the Blaine County District Court alleging that his due process rights had been violated when the court imposed Bauer's sentence in reliance on the once valid, but now invalid, previous felony convictions. Bauer, ¶ 14.

¶ 18 The District Court denied Bauer's petition and we reversed, holding that under the due process guarantee, "every person must be given an opportunity to explain, argue, and rebut any information—including presentencing information—that may lead to a deprivation of life, liberty, or property." Bauer, ¶ 22 (citation omitted). At the time that the Blaine County District Court sentenced Bauer, the evidence of Bauer's prior Silver Bow County convictions did not constitute materially false information. "When Bauer's prior Silver Bow County convictions were vacated subsequent to the imposition of his Blaine County sentences, however, what was correct information at the time of sentencing became misinformation after the fact." Bauer, ¶ 28.

¶ 19 In deciding Bauer, this Court relied on the two United States Supreme Court decisions of Townsend v. Burke (1948), 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690, and United States v. Tucker (1972), 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592, cases also cited to by McLeod. In Townsend the Supreme Court reversed the lower court's sentence where, at sentencing, the defendant did not have counsel and the lower court explicitly relied on three charges against the defendant for which the charges had been dismissed or the defendant had been...