State v. Webber, DA 17-0720

• Decision Date: 10 September 2019
• Docket Number: DA 17-0720
• Citation: 448 P.3d 1091,2019 MT 216,397 Mont. 239
• Parties: STATE of Montana, Plaintiff and Appellee, v. Michael Anthony WEBBER, Defendant and Appellant.
• Court: Montana Supreme Court

397 Mont. 239

448 P.3d 1091

2019 MT 216

STATE of Montana, Plaintiff and Appellee,

v.Michael Anthony WEBBER, Defendant and Appellant.

DA 17-0720

Supreme Court of Montana.

Submitted on Briefs: August 7, 2019

Decided: September 10, 2019

For Appellant: Chad Wright, Appellate Defender, Kristina L. Neal, Assistant Appellate Defender, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Roy Brown, Assistant Attorney General, Helena, Montana, Joshua A. Racki, Cascade County Attorney, Ashley Wilkinson, Deputy County Attorney, Great Falls, Montana

Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 Michael Anthony Webber (Webber) appeals following his sentence for felony sexual intercourse without consent issued by the Eighth Judicial District Court, Cascade County, on October 13, 2017. We reverse and remand for a new sentencing hearing.

¶2 We restate the issue on appeal as follows:

Did the District Court abuse its discretion by not continuing the sentencing hearing?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 In 2015, Webber, who was then 30 years old, worked at a fast food restaurant in Great Falls with H.P., the 15-year-old half-sister of his ex-girlfriend. Webber and H.P. began dating and had sexual intercourse several times, beginning in November 2015, when H.P. was still 15. In August 2016, another ex-girlfriend of Webber’s posted a picture of Webber and H.P. kissing on social media. H.P.’s mother took her to the Great Falls police station to report H.P.’s relationship with Webber. Great Falls police contacted Webber as part of their investigation. Webber waived his Miranda¹ rights and admitted to his relationship with H.P., to having sexual intercourse with her, and to knowing she was 15 when they first began their sexual relationship.

¶4 On September 28, 2016, Webber was charged with one count of felony sexual intercourse without consent. On December 1, 2016, Dr. Michael Scolatti (Dr. Scolatti), a licensed clinical psychologist and clinical member of the Association for the Treatment of Sexual Abusers (ATSA) and Montana Sex Offender Treatment Association (MSOTA), conducted an interview of Webber as part of a psychosexual evaluation at the request of Webber’s counsel. On February 27, 2017, Dr. Scolatti issued his psychosexual evaluation report, which, in relevant part, recommended that Webber receive a minimal term of incarceration to allow him to complete Phase I of sex offender treatment at the Montana State Prison (MSP). On March 6, 2017, Webber and the State entered into a non-binding plea agreement in which Webber would plead guilty to the felony sexual intercourse without consent charge and could argue for any legal sentence, and the State would recommend a ten-year suspended sentence. After Webber moved to vacate the upcoming jury trial and set a change of plea hearing, the District Court issued an order vacating trial and setting a change of plea hearing for April 12, 2017.

¶5 On April 5, 2017, Webber filed Dr. Scolatti’s psychosexual evaluation report under seal with the District Court. The District Court held a change of plea hearing on April 12, 2017, and Webber pled guilty to one count of felony sexual intercourse without consent. At the change of plea hearing, the District Court ordered Webber to undergo an updated psychosexual evaluation. The District Court ordered Dr. Scolatti to update his February 2017 psychosexual evaluation, rather than have Webber see a different doctor to get a new psychosexual evaluation. On April 19, 2017, the District Court issued an order which set Webber’s sentencing hearing for May 31, 2017. On May 25, 2017, Webber filed an unopposed motion to continue the sentencing hearing because neither the updated psychosexual evaluation nor the pre-sentence investigation (PSI) would be completed in time. The District Court then issued an order re-setting the sentencing hearing for June 28, 2017. On June 21, 2017, Webber filed another unopposed motion to continue the sentencing hearing, because neither the updated psychosexual evaluation nor the PSI would be completed in time and to allow Webber to file a motion for an order forcing the State to pay for the cost of the updated psychosexual evaluation. The District Court thereafter issued orders which ordered the State to pay for the cost of the updated psychosexual evaluation and re-set the sentencing hearing for August 23, 2017. On August 14, 2017, Webber filed an unopposed motion to continue the sentencing hearing, because the attorneys and the presiding judge would be in trial on another matter on the date currently set for sentencing. The District Court then issued an order re-setting sentencing for September 20, 2017.

¶6 On September 6, 2017, Webber filed another unopposed motion to continue sentencing, because Dr. Scolatti would not be available on September 20, 2017, as he conducts group counseling sessions on Wednesdays and there was no qualified doctor available to cover for him on the 20th. Webber informed the District Court that Dr. Scolatti was a necessary witness for the defense at the hearing and requested that the District Court re-set the sentencing hearing for a Friday afternoon. The Cascade County Attorney’s Office had no objection to Webber’s motion. On September 11, 2017, the District Court issued an Order Denying Defendant’s Motion to Continue Hearing, with the only apparent reason listed in the order being that it was "the Defendant’s fourth motion to continue this hearing." The matter proceeded to sentencing on September 20, 2017. At the hearing, the District Court repeatedly disparaged Dr. Scolatti’s evaluation, increased Webber’s sexual offender tier designation from Dr. Scolatti’s Tier I to a Tier II designation, and rejected the State’s recommendation that Webber receive a ten-year suspended sentence. The District Court sentenced Webber to 60 years at MSP, with ten years suspended. The District Court issued its written sentencing order on October 13, 2017.

¶7 Webber appeals.

STANDARD OF REVIEW

¶8 This Court reviews a district court’s ruling on a motion for continuance for an abuse of discretion. State v. Gleed , 2014 MT 151, ¶ 10, 375 Mont. 286, 326 P.3d 1095 (citing State v. Toulouse , 2005 MT 166, ¶ 14, 327 Mont. 467, 115 P.3d 197 ). A district court abuses its discretion if it acts arbitrarily without the employment of conscientious judgment or exceeds the bounds of reason, resulting in a substantial injustice. State v. Sebastian , 2013 MT 347, ¶ 14, 372 Mont. 522, 313 P.3d 198.

DISCUSSION

¶9 Did the District Court abuse its discretion by not continuing the sentencing hearing?

¶10 "[T]he rights of the defendant must be protected and due process must be observed in sentencing hearings." State v. Webb , 2005 MT 5, ¶ 18, 325 Mont. 317, 106 P.3d 521 (citations omitted). Under the due process guarantee, a defendant must be given an opportunity to explain, argue, and rebut "any information that may lead to a deprivation of life, liberty, or property." Webb , ¶ 19 (citing State v. McLeod , 2002 MT 348, ¶ 18, 313 Mont. 358, 61 P.3d 126 ).

¶11 In this case, the District Court was presented with an unopposed motion to continue the sentencing hearing to accommodate the schedule of a key—and only—witness for the defense. The motion contained an alternative day which would accommodate that witness’s schedule and would possibly only amount to a delay of two days. The District Court denied this motion in a written order with no analysis beyond a notation that the motion was the defendant’s fourth motion to continue the sentencing hearing.

¶12 Early in the proceedings of this matter, Webber’s counsel arranged for Dr. Scolatti to conduct a psychosexual evaluation of Webber. Dr. Scolatti completed his original psychosexual evaluation of Webber on February 27, 2017. Shortly after receiving the psychosexual evaluation results, Webber entered into the plea agreement with the State. At the April 12, 2017 change of plea hearing, the District Court noted that under MSOTA guidelines a pre-plea psychosexual evaluation was "not valid." The District Court then stated that it "would be comfortable if Dr. Scolatti updated his evaluation" now that Webber had pled guilty, rather than ordering a new psychosexual evaluation by a different provider. Neither Webber nor the State objected to the District Court’s proposed course of action.

¶13 After Webber’s change of plea hearing, his sentencing hearing was continued three times based on unopposed motions made by counsel for Webber. The first two continuances were granted because neither Dr. Scolatti’s updated psychosexual evaluation nor the PSI would be completed in time. The third continuance was granted because both counsel and the District Court had an unrelated trial set for the same time as Webber’s sentencing and would be unavailable. Webber’s counsel thereafter moved for a fourth continuance based on the unavailability of Dr. Scolatti. This motion was unopposed and contained an alternative day where Dr. Scolatti could be available to testify. The motion noted that the sentencing hearing was expected to last "between 2 and 3 hours" and that, because of the gravity of the offense, Webber "must have the evaluating doctor present for the hearing."

¶14 The District Court denied Webber’s unopposed motion to continue the hearing to allow Dr. Scolatti to testify, and the matter proceeded to sentencing on September 20, 2017. At the sentencing hearing, the District Court heard testimony from H.P. and her mother before the State made its recommendation in accord with the plea agreement—a sentence of ten years, all suspended, and a sex offender tier designation of Tier I. The District Court then expressed its incredulity at the recommended sentence and noted that "Dr. Scolatti, who was hand-picked to do the evaluation, on page 27 of his evaluation, says that this defendant should complete Phase 1 of the Montana State Prison sex offender treatment program." Dr. Scolatti in fact did...