State v. Tenas

Opinion

NO. 95-084

IN THE SUPREMECOURT OF THE STATE OF MONTANA 1995

STATE OF MONTANA, Plaintiff and Respondent, v.

DANETTE TENAS, Defendant and Appellant.

APPEAL FROM: District Court of the Twentieth Judicial District, In and for the County of Lake, The Honorable C.B. McNeil, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Roberta Hoe, Attorney at Law, Polson, Montana For Respondent:

Hon. Joseph P. Mazurek, Attorney General, Pamela P. Collins, Assistant Attorney General, Helena, Montana; Kim Christopher, Lake County Attorney, Mitchell A. Young, Deputy Lake County Attorney, Polson, Montana

Submitted on Briefs: July 13, 1995 Decided: August 17, 1995 Filed:

Justice Karla M. Gray delivered the Opinion of the Court.

Danette Tenas (Tenas) appeals from the Judgment entered by the Twentieth Judicial District Court, Lake County, on her conviction by Alford plea of the offense of negligent homicide. We affirm.

The dispositive issue on appeal is whether the District Court abused its discretion in sentencing Tenas.

A complaint was filed in the Justice Court of Lake County on July 9, 1993, charging Tenas with the offense of negligent homicide, a felony, in violation of § 45-5-104, MCA. The complaint alleged that, on or about May 2, 1992, Tenas negligently caused the death of a human being by driving a vehicle across the center line on Highway 93 and causing a head-on collision. An information was later filed in the District Court charging Tenas with the offenses of negligent homicide, a felony, and negligent vehicular assault, a misdemeanor. Tenas pleaded not guilty to both charges.

After a number of continuances and related waivers of speedy trial rights, an omnibus hearing was held on March 16, 1994. A jury trial was scheduled and, later, rescheduled for October 13, 1994.

In September of 1994, the State of Montana (State) filed a proposed plea agreement and Tenas filed a Verified Request to Enter Guilty Plea and Waiver of Rights. Under the plea agreement, Tenas would plead guilty to the negligent homicide charge and the State would dismiss the negligent vehicular assault charge. The State agreed to recommend a sentence of 10 years in the Women's Correctional Facility, with all but 90 days suspended and the 90

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days to be served in the Lake County Jail; Tenas was free to recommend any sentence she felt was appropriate. The State and Tenas agreed that she would not be sentenced in excess of the

State's recommendation. In the event the District Court rejected

the plea agreement, Tenas would be allowed to withdraw her guilty

plea, enter a not guilty plea and proceed to trial.

The District Court subsequently accepted the plea agreement,

stating that Tenas' sentence would not be greater than that

recommended by the State or less than that recommended by Tenas.

Tenas then entered an Alford plea to the charge of negligent

homicide. The court accepted the plea, granted the State's motion

to dismiss the negligent vehicular assault charge and ordered a

presentence investigation report (PIR).

Thereafter, Tenas filed a brief in support of her sentencing

recommendations. In summary, she recommended that imposition of

sentence be deferred for five years under certain conditions,

including that she enter an appropriate rehabilitation and

treatment center capable of addressing both chemical dependency

issues and the closed head injury she contends she sustained in the

vehicle collision from which the charges against her arose.

At the sentencing hearing, testimony and oral argument were

presented. The District Court sentenced Tenas to 10 years in the

Women's Correctional Facility and suspended all but 90 days, which

were to be served in the Lake County Jail. The court provided that

Tenas could serve the last 30 days of the 90 nonsuspended days either in an in-patient treatment program or on house arrest if she

arranged and paid for either option. Conditions were imposed for

the full period of Tenas' suspended sentence.

The court's stated reasons for the sentence were that it conformed to the parameters of the plea agreement and provided for

both punishment and an opportunity for rehabilitation. The court also took into consideration Tenas' youth and relative absence of

a prior criminal record and her lack of any expressed remorse for

the death caused by her drinking and driving. Tenas appealed.

Tenas moved to stay execution of the judgment and for release

on her own recognizance pending appeal. The District Court granted

the motion.

Did the District Court abuse its discretion in sentencing Tenas?

Sentencing judges are granted broad discretion to determine

the appropriate punishment. State v. Alexander (1994), 265 Mont.

192, 203, 875 P.2d 345, 352 (citation omitted). Where the sentence

imposed is within the limits of the applicable statutes, we

generally will not find an abuse of discretion. See State v.

Losson (1993), 262 Mont. 342, 352, 865 P.2d 255, 261.

Section 45-5-104, MCA, defines the offense of negligent

homicide and sets forth the statutory parameters for sentencing a

person convicted of the offense. The statute authorizes a sentence

of imprisonment for any term not exceeding 10 years or a fine not

exceeding $50,000, or both. Section 45-5-104(3), MCA. It is clear

that the District Court's sentence of 10 years' imprisonment in the Women's Correctional Facility, with all but 90 days of that term

suspended and that 90 days to be served in the Lake County Jail, is

well within the applicable sentencing statute.

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Nor does the court's sentence violate the terms of the plea

agreement between the State and Tenas. Pursuant to that agreement, the State recommended a sentence of 10 years' imprisonment, with

all but 90 days suspended and those days to be served in the Lake

County Jail. Tenas made her own sentencing recommendations, as

permitted by the agreement. The court accepted the plea agreement

and sentenced Tenas within its parameters, as it affirmatively

obligated itself to do.

Tenas advances a variety of arguments in support of her

contention that the District Court erred in not granting her request for a deferred imposition of sentence. Her arguments are

not persuasive.

Tenas argues that the court did not meet its responsibility to

be fully informed on any mitigating or aggravating circumstances

that properly may influence the sentencing decision. This argument

is based on asserted inaccurate and biased information contained in

the PIR prepared by Dave Weaver (Weaver), as well as omitted

material she contends should have been included. While Tenas

argues generally that 5 46-18-112, MCA, requires the inclusion of

certain information in a PIR, she does not assert with

particularity that information required by the statute is not

included in some form or fashion in the PIR Weaver prepared; nor

does our review of the PIR indicate a lack of compliance with the

statutory requirements.

Relying on State v. McPherson (1989), 236 Mont. 484, 771 P.2d

120, rev'd on other grounds, see State v. Staat (1991), 248 Mont.

291, 292-93, 811 P.2d 1261, 1262, and the Fourteenth Amendment's due process clause, Tenas also argues that she was entitled to have her sentence predicated on correct information. She contends that Weaver's failure to include information about her medical history

and current closed head injury, together with his erroneous opinions about her psychological condition and lack of remorse,

resulted in the District Court's reliance on inaccurate information

in sentencing her.

The record reflects that, at the sentencing hearing, Tenas

stated that she had numerous comments and corrections relating to

the PIR, a number of which related to expressions of opinion by

Weaver. The court permitted her to present her objections and

corrections. In addition, she cross-examined Weaver fully and

presented a three-page letter from her doctor addressing portions

of the information contained in the PIR and expressing the doctor's

disagreement with a comment by Weaver that Tenas was not

remorseful.

While McPherson requires that a criminal defendant's sentence

be predicated on substantially correct information, it also states

that we presume a district court to be correct and place the burden

of presenting inaccuracies on the defendant. McPherson, 771 P.2d

at 123-24. Here, Tenas' assertions regarding inaccurate

information rest primarily on differences of opinion. It was

within the province of the sentencing court to weigh conflicting

opinions and interpretations and give them such weight as it found

appropriate. We conclude, therefore, that Tenas has not met her

burden of establishing that the District Court relied on inaccurate information.

Tenas also argues that her constitutional right to equal

protection of the laws entitled her to a deferred sentence on the basis that an allegedly similarly situated defendant received such

a sentence. She cites no authority for the proposition that every

sentence involving similar circumstances requires imposition of an

identical sentence and we know of no such authority.

Moreover, Tenas' equal protection argument--like her other

constitutional arguments--totally ignores the fact that she was

sentenced in accordance with her plea agreement. Tenas can present

any argument about the inequity or disparity of her sentence to the

Sentence Review Division; we do not review such matters on appeal.

u State v. Almanza (1987), 229 Mont. 383, 386, 746 P.2d 1089,

1090-91.

Tenas' contention that her sentence is cruel and unusual under

the constitution also requires little discussion. We repeatedly

have held that a sentence which falls within the statutory sentencing guidelines does not violate the Eighth Amendment

prohibition against cruel and unusual punishment. See, e.9., State

v. Peck (1993), 263 Mont. 1, 4, 865 P.2d 304, 306.

Finally, Tenas' reliance on State v. Burris (19751, 168 Mont.

195, 542 P.2d 1223, for the proposition that this Court has

indicated a preference for deferring imposition of sentence under

circumstances such as those now before us is misplaced. In Burris,

we addressed a specific statutory presumption in favor of a

deferred sentence upon the first conviction of a person under 21

years of age for a drug-related offense. Burris, 542 P.2d at 1224-

25. That statute is not at issue here and, therefore, Burris is

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totally inapplicable.

The sentence of the District Court is within the statutory

parameters set forth in § 45-5-104(3), MCA, for the offense of

negligent homicide. The sentence is also within the parameters of

Tenas' plea agreement with the State. Tenas has not established that the District Court relied on information which was not

substantially correct in sentencing her. See McPherson, 771 P.2d at 123. Therefore, we conclude that the District Court did not

abuse its discretion in sentencing Tenas.

Affirmed. Pursuant to Section I, Paragraph 3 (c), Montana Supreme Court

1988 Internal Operating Rules, this decision shall not be cited as precedent and shall be published by its filing as a public document

with the Clerk of the Supreme Court and by a report of its result

to Montana Law Week, State Reporter an st Publishin

We Concur: