State v. Rardon

• Decision Date: 26 May 2005
• Docket Number: No. 03-609.,03-609.
• Citation: 2005 MT 129,327 Mont. 228,115 P.3d 182
• Parties: STATE of Montana, Plaintiff and Respondent, v. William Lester RARDON, Defendant and Appellant.
• Court: Montana Supreme Court

Page 182

115 P.3d 182

2005 MT 129

327 Mont. 228

STATE of Montana, Plaintiff and Respondent, v. William Lester RARDON, Defendant and Appellant.

No. 03-609.

Supreme Court of Montana.

Submitted on Briefs April 13, 2004.

Decided May 26, 2005.

For Appellant: Sean D. Hinchey, Hinchey & Hinchey, Kalispell, Montana.

For Respondent: Mike McGrath, Montana Attorney General, Jennifer Anders, Assistant Attorney General, Helena, Montana; Ed Corrigan, Flathead County Attorney, Dan Guzynski, Deputy County Attorney, Kalispell, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 William Lester Rardon (Rardon) appeals from the sentence imposed by the Eleventh Judicial District Court for the crime of sexual assault. We affirm the District Court. Rardon raises the following issues for our review:

¶ 2 1. Did the prosecutor breach the plea agreement?

¶ 3 2. Did Flathead County Attorney Ed Corrigan violate this Court's instructions on remand?

¶ 4 3. Did the sentence violate Rardon's right to due process?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 5 This is Rardon's third appeal from the sentence imposed by the Eleventh Judicial District Court. A detailed discussion of the facts regarding the first two appeals may be found in State v. Rardon, 1999 MT 220, 296 Mont. 19, 986 P.2d 424 (Rardon I), and State v. Rardon, 2002 MT 345, 313 Mont. 321, 61 P.3d 132 (Rardon II). In order to provide a context for the resolution of this appeal, we recount the pertinent facts from those proceedings.

¶ 6 Rardon was charged with one count of sexual intercourse without consent, and two counts of sexual assault. The victims of these offenses were two minors; Rardon's own daughters, D.N. and J.T. While Rardon pled not guilty at his arraignment, he subsequently entered into a written plea agreement with the State whereby he agreed to plead guilty to one count of sexual assault against his eldest daughter, D.N. In exchange, the State agreed to dismiss the other charges and recommend a sentence in conformity with the recommendation resulting from the Sexual Offender Treatment Amenability Evaluation (SOTA Evaluation) and the Pre-Sentence Investigation Report (PSI Report) to be performed prior to sentencing. The District Court accepted Rardon's guilty plea, ordered a SOTA Evaluation and PSI Report, and dismissed the remaining charges.

¶ 7 The SOTA Evaluation recommended, inter alia, that Rardon be accepted into an outpatient treatment program on a probationary status without any term of years, to be completed in Great Falls according to the treatment standards of the Montana Sex Offender Treatment Association. The PSI Report, on the other hand, recommended that Rardon be sentenced to serve forty years at the Montana State Prison (MSP), with twenty years suspended. The PSI Report further recommended that Rardon remain ineligible for parole until he completed all available phases of the Sex Offender Treatment Program (SOTP) at MSP.

¶ 8 Rardon's first sentencing hearing was held in December of 1997 before the Honorable Ted O. Lympus. The State called Rardon's two daughters and his ex-wife to the stand where they expressed their fear of Rardon and their desire that he be incarcerated for the rest of his life. The State recommended that Rardon be sentenced to serve seventy years at MSP, and that he be ineligible for parole until he had served at least thirty years and completed all phases of the SOTP. The District Court sentenced Rardon to seventy-five years at MSP with fifteen years suspended, and provided that Rardon would not be eligible for parole until having served at least thirty-five years and completed all phases of the SOTP.

¶ 9 Rardon appealed the sentence and this Court reversed the District Court in Rardon I. In doing so, we concluded that the State had breached the plea agreement by recommending a sentence that was not in conformity with the recommendations of either the SOTA Evaluation or the PSI Report. Rardon I, ¶ 17. Consequently, we held that the District Court had abused its discretion when it failed to require the State to abide by the terms of the plea agreement. Rardon I, ¶ 17. We remanded with instruction that the District Court either allow Rardon to withdraw his guilty plea, or require specific performance of the plea agreement and order a new sentencing hearing before a different judge. Rardon I, ¶ 18. Rardon chose to have the plea agreement specifically performed. Rardon II, ¶ 9.

¶ 10 In March of 2000, a second sentencing hearing was held before the Honorable Katherine R. Curtis. The same Flathead County Attorney involved in the original sentencing proceeding, Mr. Ed Corrigan (Corrigan), represented the State. Again, Rardon's two daughters and his ex-wife testified at the proceeding, expressing their fear of Rardon and their desire that he be incarcerated for the rest of his life. While the prosecutor opined that Rardon deserved a lengthy sentence, he ultimately recommended that Rardon be sentenced to serve forty years at MSP with twenty years suspended, subject to the conditions set forth in the PSI Report. Rardon's court-appointed attorney, in accordance with Rardon's request, recommended a sentence of forty years with no time suspended. The District Court did not accept the proffered recommendations, but imposed a sentence of seventy-five years at MSP with twenty-five years suspended, and provided that Rardon would not be eligible for parole until he had served at least half of the non-suspended sentence and completed all phases of the SOTP.

¶ 11 Rardon appealed the second sentence. In Rardon II, this Court reversed the District Court because the prosecutor had breached the plea agreement by aggressively eliciting testimony that was clearly intended to undermine the agreement and convince the District Court that the plea bargained sentence recommendation should not be accepted. Rardon II, ¶ 22. We stated that although the District Court had the statutory authority to impose a lengthy sentence, the court should have had the benefit of making that decision based on a good faith and fair presentation of the State's case. Rardon II, ¶ 25. Thus, we remanded with instructions that the District Court either allow Rardon to withdraw his guilty plea, or require specific performance of the plea agreement and order a new sentencing hearing before a different judge, with the State to be represented by a different prosecutor. Rardon II, ¶ 26. Rardon again chose to have the plea agreement specifically performed.

¶ 12 On June 30, 2003, a third sentencing hearing was held before the Honorable Deborah Kim Christopher. Pursuant to this Court's instructions in Rardon II, Corrigan did not participate. Instead, the State was represented by Flathead County Attorney Daniel Guzynski (Guzynski). Again, J.T. and Rardon's ex-wife both testified. D.N., the victim of the crime for which Rardon was convicted, did not appear at this portion of the proceeding. In order to provide her another opportunity to testify, the District Court continued the hearing until July 14, 2003, at which time she did appear and testify. The State recommended that Rardon be sentenced to serve forty years at MSP, with twenty years suspended, subject to the conditions set out in the SOTA Evaluation and the PSI Report. Rardon's counsel recommended a sentence of thirty years, with fifteen years suspended. The District Court did not accept the proffered recommendations, but imposed a sentence of fifty years at MSP, with thirteen years suspended, and provided that Rardon would not be eligible for parole at any time during his sentence.

¶ 13 Rardon now appeals from the third sentence, arguing that: (1) the prosecutor again breached the plea agreement; (2) Flathead County Attorney Ed Corrigan violated this Court's instructions on remand in Rardon II; and (3) the sentence violated his right to due process. Upon these contentions, Rardon requests that we reverse the District Court and remand this matter with a recommendation that the court impose a sentence of forty years, with twenty years suspended.

STANDARD OF REVIEW

¶ 14 In reviewing allegations of prosecutorial error, we employ a de novo standard, considering the prosecutor's conduct in the context of the entire proceeding. Rardon II, ¶ 15. Our review of the constitutional issue of due process involves a question of law, and our review of such questions is plenary. In re Mental Health of K.G.F., 2001 MT 140, ¶ 17, 306 Mont. 1, ¶ 17, 29 P.3d 485 ¶ 17.

DISCUSSION

¶ 15 1. Did the prosecutor breach the plea agreement?

¶ 16 Rardon argues that the prosecutor breached the plea agreement in two ways. First, Rardon argues that a breach occurred when the prosecutor elicited improper testimony from D.N., J.T., and his ex-wife. The specific portions of testimony which Rardon designates as improper include accounts of the physical and sexual abuses which Rardon subjected his family to over a period of years, general testimony regarding Rardon's violent nature, and J.T.'s stated opinion that he should be "put away for a very, very long time." Rardon claims that the conduct referred to in this testimony "had nothing to do with the charge of sexual assault to which he plead guilty." Further, Rardon asserts, this testimony was improper because it was elicited for the purpose of inducing Judge Christopher to reject the State's recommended sentence and impose an increased sentence.

¶ 17 In determining a proper sentence, the sentencing judge may consider any relevant evidence relating to the nature and circumstances of the crime, the character of the defendant, the defendant's background and history, mental and physical condition, and any evidence the court considers to have probative force. State v. Mason, 2003 MT 371, ¶ 23, 319 Mont. 117, ¶ 23, 82 P.3d 903, ¶ 23. This includes evidence of other acts, even those resulting in acquittal or which are dismissed pursuant to a plea bargain agreement. Mason, ¶ 23. As well,...