State v. Radi

• Decision Date: 28 December 1979
• Docket Number: No. 14937,14937
• Citation: 36 St.Rep. 2345,604 P.2d 318,185 Mont. 38
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Gary Eugene RADI, Defendant and Appellant.
• Court: Montana Supreme Court

Page 318

604 P.2d 318

185 Mont. 38

The STATE of Montana, Plaintiff and Respondent, v. Gary Eugene RADI, Defendant and Appellant.

No. 14937.

Supreme Court of Montana.

Submitted Oct. 14, 1979.

Decided Dec. 28, 1979.

McKinley Anderson, Bozeman, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, for plaintiff and respondent.

HARRISON, Justice.

This is an appeal resulting from a resentencing of appellant to a sentence of 50 years.

Appellant was convicted in the District Court of the Sixth Judicial District, in and for the County of Sweet Grass, of the crime of burglary. The jury returned a verdict at the same time which acquitted appellant of the charge of theft.

Appellant was sentenced as a persistent offender to a term of 50 years. Appeal was taken to this Court. This Court, in State v. Radi (1978), Mont., 578 P.2d 1169, 35 St.Rep. 489, affirmed the issue raised on appeal in favor of the State, but held that since the sentence pronounced was done without a presentence investigation, returned the case to the District Court for the purpose of resentencing appellant after a presentence report had been filed.

Two issues are raised on the present appeal:

1. Was the presentence report prepared by the Board of Pardons and Paroles prejudicial to appellant in this case?

2. Is there an inconsistency between the verdict returned by the jury of guilty of Count I, the count of burglary, and of not guilty of Count II, theft?

The first issue is directed to whether the presentence report prepared by the Board of Pardons and Paroles was prejudicial to appellant. Section 46-18-112, MCA, provides for a sentencing report as follows:

"Whenever an investigation is required, the probation officer shall promptly inquire into the characteristics, circumstances, needs, and potentialities of the defendant; his criminal record and social history; the circumstances of the offense; the time the defendant has been in detention; and the harm to the victim, his immediate family, and the community. All local and state mental and correctional institutions, courts, and police agencies shall furnish the probation officer, on request, the defendant's criminal record and other relevant information. The investigation shall include a physical and mental examination of the defendant when it is desirable in the opinion of the court."

Before proceeding to analyze each of the provisions in the report of the presentence investigation that is alleged to be in error, we will address some general comments regarding such reports in the sentencing process.

This Court has held that a presentence investigation report "is a vital tool of the district judge in arriving at what it considers a proper sentence." State v. Radi, supra, 578 P.2d at 1182, 35 St.Rep. at 504. The primary function of the presentence investigation is to assist the judge in making his determination as to the disposition after conviction. People v. Edwards (1976), 18 Cal.3d 796, 135 Cal.Rptr. 411, 557 P.2d 995. The probation report is generally a proper source of information upon which judicial discretion can be exercised when a defendant is brought before the court for sentencing. People v. Chi Ko Wong (1976), 18 Cal.3d 698, 135 Cal.Rptr. 392, 557 P.2d 976. The sentencing judge cannot be denied an opportunity to obtain information by imposing strict requirements or restricting the proceedings to the rules of evidence applicable at a trial. Thus, hearsay and other matters are acceptable in a presentence report. Williams v. New York (1949), 337 U.S. 241, 247, 69 S.Ct. 1079, 93 L.Ed. 1337.

Montana has long allowed the use of reports of presentence investigations for sentencing purposes. See State v. Karathanos (1972), 158 Mont. 461, 493 P.2d 326; State v. Harris (1972), 159 Mont. 425, 498 P.2d 1222.

It is a general rule throughout this country that when matters contained in a report are contested by the defendant, the defendant has, in effect, an affirmative duty to present evidence showing the inaccuracies contained in the report. Crowder v. State (Okl.Cr.1974), 518 P.2d 890; People v. Carter (1974), 186 Colo. 391, 527 P.2d 875. A recent Supreme Court case from the State of Alaska, Nukapigak v. State (Alaska 1978), 576 P.2d 982, 983, held that failure on the part of the defendant to challenge the accuracies of statements or to offer contrary evidence at the time of sentencing is fatal. "That fact alone is sufficient to support our decision to affirm his sentences." Nukapigak, 576 P.2d at 983.

Nukapigak relied upon a California decision, People v. Chi Ko Wong, supra, and found that it is a defendant's obligation to comply with "procedures to establish the claimed unreliability of materials properly submitted for the sentencing purposes; a mere claim of invalidity is insufficient." Nukapigak, 576 P.2d at 984. A number of courts have held that, if a defendant does not present evidence or witnesses to contradict or otherwise rebut materials in a probation report, he is foreclosed from raising such issues on appeal. See Crowder, supra; Carter, supra.

This state to a certain extent adopted the general rule in In re Petition of Jerald M. Amor (1964), 143 Mont. 479, 389 P.2d 180, where the defendant, on a petition for a writ, alleged that he was not given the opportunity to refute evidence contained in the presentence investigation report. This Court declined to hear that argument reasoning that since the defendant was represented by competent counsel at sentencing, the defendant had an opportunity to refute or contradict the information in the report but chose not to do so.

This case is much like Amor. Here, appellant had the opportunity to refute or contradict the information that was contained in the report. Both appellant and his counsel were presented with a copy of the report prior to the hearing. Appellant chose to offer no witnesses to rebut or contradict any information in the report. In fact, appellant neither testified nor offered witnesses on his behalf. While counsel for appellant did make mention to the court of certain points in the report that he thought were inaccurate or inconsistent, the court indicated that those matters would be taken into consideration in reaching its decision. Appellant did not meet his affirmative duty of presenting evidence or testimony to contradict or refute the matters alleged in the report as objectionable.

Appellant asserts that the report lacked any information as to "characteristics, circumstances, needs and potentialities" of appellant. We do not agree. Taken as a whole, the report is full of information regarding appellant's characteristics and potential. Information of that nature is not only contained in appellant's criminal history, but also contained in information regarding his physical condition and description; his family and social background; his educational, vocational, and marital histories; and summarized in the conclusion of the report.

Appellant next alleges that the report to a large extent shows bias and prejudice on behalf of the officer presenting the report. We find no merit to this contention. The report is a factual summary of appellant's criminal, physical, family, social and educational background. There is nothing on its face that would substantiate an allegation that the officer who presented it was biased or prejudiced.

Appellant next contends that it was improper for the probation officer to include information about appellant's juvenile record, citing section 41-3-205, MCA, to support that contention. However, section 41-3-205, MCA, does not apply to the juvenile record of those youths under the delinquency provisions of the juvenile law, commonly known as the Youth Court Act. That section is contained in the chapter of juvenile law concerned only with dependent and neglect situations. The provisions of Chapter 3, Title 41, do not pertain to proceedings for delinquents under the Youth Court Act.

The Youth Court Act does, however, contain a provision regarding the confidentiality of the reports. Section 41-5-604, MCA.

It is the general rule to allow juvenile records as a part of presentence investigation report at a sentencing hearing. See 47 Am.Jur.2d Juvenile Courts § 56 at 1029. The leading case in this field is Hendrickson v. Myers (1958), 393 Pa. 224, 144 A.2d 367, which held that depriving the courts of their right to be informed of and to consider the entire history and background of a person subject to sentence may result in sentences that are unjust and unfair to both society and the defendant.

While we are unable to find any interpretation of a statute similar to Montana's, there are cases that have interpreted statutes regarding the use of juvenile records that have a similar purpose to the Montana statute. Washington has a statute that provides that an order of the court adjudicating a child delinquent shall in no case be deemed a conviction of a crime. Section 13.04.240, R.C.W. See State v. Dainard (1975), 85 Wash.2d 624, 537 P.2d 760, a case holding that this statute was broad enough in its intent to permit consideration of juvenile records in sentencing hearings. For courts that have allowed the use of juvenile records in presentence investigation reports see Young v. State (Okl.Cr.1976), 553 P.2d 192; People v. McFarlin (1973), 389 Mich. 557, 208 N.W.2d 504; State v. Fierro (1966), 101 Ariz. 118, 416 P.2d 551.

The gravamen of the decisions allowing the sentencing judge to use the full and complete reports of an individual's background in making the determination of sentence was set forth by the United States Supreme Court:

". . . highly relevant if not essential to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that the sentencing judge not be denied the opportunity to...