No. 03-609

IN THE SUPREME COURT OF THE STATE OF MONTANA

2005 MT 129

STATE OF MONTANA,

Plaintiff and Respondent,

v.

WILLIAM LESTER RARDON,

Defendant and Appellant.

APPEAL FROM: District Court of the Eleventh Judicial District,

In and for the County of Flathead, Cause No. DC 97-64A

The Honorable Deborah Kim Christopher, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Sean D. Hinchey, Hinchey & Hinchey, Kalispell, Montana

For Respondent:

Honorable Mike McGrath, Montana Attorney General, Jennifer Anders,

Assistant Attorney General, Helena, Montana; Ed Corrigan, Flathead County

Attorney, Dan Guzynski, Deputy County Attorney, Kalispell, Montana

Submitted on Briefs: April 13, 2004

 Decided: May 26, 2005

Filed:

__________________________________________

Clerk

Justice James C. Nelson delivered the Opinion of the Court.
2

¶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
3

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.
4

¶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
5

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
6

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
7

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, it is entirely appropriate for a prosecutor to elicit testimony from the victims at a

sentencing hearing, and for the victims to express their fears and feelings. Rardon II, ¶ 22.

Moreover, we observe that nothing in the plea agreement between the State and Rardon

limited the State’s ability to present the testimony at issue. Thus, the fact that Rardon’s

abusive history and violent tendencies came out during the proceeding does not establish a

breach of the plea agreement. Nor is a breach established by virtue of the fact that Rardon’s

daughter stated her opinion that he should receive a lengthy sentence. The portions of
8

testimony which Rardon complains of fit squarely within the parameters of acceptable

evidence. As such, we conclude that the sentencing judge was entitled to consider this

evidence in determining an appropriate sentence. Thus, we hold that the plea agreement was

not breached by the mere introduction of this evidence.

¶18 A plea agreement is a contract between the State and a defendant which is subject to

contract law standards. Rardon II, ¶ 18. The State may not retain the benefit of such an

agreement while avoiding its obligation thereunder. Rardon II, ¶ 18. Indeed, prosecutors

must meet “strict and meticulous standards of both promise and performance” in fulfilling

such agreements. Rardon II, ¶ 18. As such, a prosecutorial violation of a plea agreement is

unacceptable, even if made inadvertently in the good faith pursuit of a just result.

Rardon II, ¶ 18.

¶19 Thus, although a prosecutor enjoys wide latitude in submitting evidence to a

sentencing judge, the presentation of the State’s case must be tempered by any obligations

or restrictions created by way of a plea agreement. In Rardon’s case, the plea agreement

required the prosecutor to recommend a sentence in conformity with the recommendation

resulting from the SOTA Evaluation and the PSI Report. This component of the agreement

obligated the prosecutor to present the State’s case in a way that would not undermine the

recommendation he ultimately made to the sentencing judge. Rardon II, ¶ 22. A failure in

this regard would constitute a breach of the plea agreement. Rardon II, ¶ 22. As we have

previously noted, although a sentencing judge has the statutory authority to reject a plea
9

bargained sentencing recommendation, such a decision should be made pursuant to a good

faith and fair presentation of the State’s case. Rardon II, ¶ 25.

¶20 We hold that the prosecutor’s presentation of the State’s case did not undermine the

plea bargained sentence recommendation. In doing so, we note that there are no hard and

fast criteria to apply in making such a determination. Rardon II, ¶ 21. Rather, each case

must be decided on its own unique facts. Rardon II, ¶ 21. Here, the testimony at issue was

particularly relevant because it described conduct that was part of Rardon’s pattern of

abusive and violent behavior which was directly related to his crime of sexual assault, and

was in fact facilitative of that offense. Further, this conduct occurred during the same time

period in which Rardon committed the crime for which he was convicted. The prosecutor

appropriately encouraged the witnesses to testify about their experiences so that the

sentencing judge was properly informed in determining an appropriate sentence.

¶21 More importantly, however, the prosecutor did not use this testimony to undermine

the State’s sentence recommendation. In Rardon II, we held that the prosecutor had

effectively undercut the plea agreement by repeatedly eliciting inflammatory testimony

which was clearly intended to convince the sentencing judge that the plea bargained sentence

recommendation should not be accepted. Rardon II, ¶¶ 19-22. For example, the prosecutor

explained to a witness that if the State’s recommended sentence were accepted, Rardon could

be eligible for parole within just a few years. Rardon II, ¶ 19. Then the prosecutor asked

the witness what she thought of the State’s recommended sentence. Rardon II, ¶ 19. The

witness, not surprisingly, opposed the recommendation. Rardon II, ¶ 19.
10

¶22 Here, however, nothing of that sort occurred, and Rardon’s bare assertions to the

contrary are unpersuasive. The fact that some testimony elicited in the third hearing was

similar to that of the first and second hearings does not establish a breach of the plea

agreement. Our review of the record leads us to conclude that none of the prosecutorial

improprieties identified in the previous proceedings were present in the third sentencing

hearing. Further, Rardon has not demonstrated that any other form of prosecutorial

impropriety occurred. We hold that the prosecutor did not elicit improper testimony or

undermine the State’s recommended sentence. Thus, we hold that the prosecutor did not

breach the plea agreement when he questioned Rardon’s family members at the sentencing

hearing.

¶23 Additionally, Rardon argues that the prosecutor breached the plea agreement by

subpoenaing D.N. to testify at the continuation of the sentencing hearing after she had

declined to attend the hearing two weeks earlier. This action, Rardon argues, constitutes a

breach because the District Court already had her statements from the PSI Report as well as

her testimony from the prior hearings, and thus the prosecutor’s purpose could only have

been to “send the message to the court that the recommended sentence in the plea agreement

is insufficient.” Rardon cites no authority for the proposition that this Court could or should

draw such an inference. This Court simply can not infer that the prosecutor intended to

undermine the plea agreement by the mere fact that he subpoenaed D.N. to testify. Nor do

we infer an improper intent from any other evidence in the record. Further, setting aside any

speculation as to the prosecutor’s intent, we observe that the subpoena had no actual impact
11

with regard to the hearing because D.N. testified that she had decided to appear and testify

before the subpoena was issued. Indeed, she expressed gratitude for the opportunity to

testify, explaining that her prior failure to appear was simply due to her apprehension about

the proceeding. In short, Rardon’s argument is utterly without merit. We hold that the

prosecutor did not breach the plea agreement by subpoenaing D.N. to testify.

¶24 2. Did Flathead County Attorney Ed Corrigan violate this Court’s instructions on

remand?

¶25 Rardon argues that Corrigan’s involvement in this matter violated the instructions we

issued in Rardon II which specified that Corrigan was not to represent the State in the third

sentencing hearing. In support of this argument, Rardon points to a meeting where Corrigan

introduced Guzynski to D.N., J.T., and Rardon’s ex-wife, and explained that Guzynski

would thereafter represent the State. Further, Rardon asserts that when D.N. called the

Flathead County Attorney’s Office regarding her subpoena, Corrigan “chastised” her for not

testifying. Finally, Rardon insinuates that Corrigan’s involvement had some effect on D.N.’s

decision to testify.

¶26 We hold that Corrigan’s contacts with D.N. and her family do not amount to a

violation of this Court’s instructions in Rardon II. While we specified that Corrigan could

not represent the State in the third sentencing hearing, Rardon II, ¶ 26, we did not bar him

from all contact with Rardon’s family. Corrigan did not represent the State on remand, and

he was not present at the third sentencing hearing. As for the brief phone conversation

between Corrigan and D.N., the record does not indicate that Corrigan “chastised” D.N. for
12

not testifying, nor does it demonstrate in any way that he prompted her to testify. Moreover,

D.N. clearly stated that she had decided to testify before this conversation took place. As

such, we hold that Corrigan did not violate this Court’s instructions given in Rardon II.

¶27 3. Did the sentence violate Rardon’s right to due process?

¶28 Rardon argues that his right to due process was violated when he received a harsher

sentence than was issued in either of the prior proceedings. In support of this argument,

Rardon suggests that he was penalized for twice exercising his right to appeal and prevailing

both times. Upon this contention, Rardon asks this Court to infer that Judge Christopher

acted vindictively in rendering the sentence, thus implicating his right to due process.

¶29 Rardon’s third sentence is significantly shorter than either of his first two sentences.

In the first proceeding, Judge Lympus imposed a sentence of sixty years and declared Rardon

ineligible for parole for thirty-five years. Rardon I, ¶ 9. In the second proceeding, Judge

Curtis imposed a sentence of fifty years and declared Rardon ineligible for parole for

twenty-five years. Rardon II, ¶ 12. In the third proceeding, Judge Christopher imposed a

sentence of thirty-seven years with no chance of parole. Thus, parole eligibility is the only

sentencing component which is more harsh in Rardon’s third sentence than in either of his

first two. However, the change in the parole component of the sentence is offset by the

reduction in the overall term of the sentence.

¶30 Although the third sentence guarantees that Rardon will serve more time than did

either of the first two, the third sentence also guarantees that Rardon will not serve as much

time as he could have served under either of the first two. Rardon will now serve exactly
13

thirty-seven years, whereas he may have ultimately served sixty years under the first

sentence or fifty years under the second sentence. When we consider the reduction in the

overall term of Rardon’s sentence, together with the difference in parole eligibility, we

determine that the third sentence, in its entirety, is not more harsh than either of the first two

sentences. In other words, the third sentence was not more harsh than either of the first two

because it precluded the possibility of Rardon serving sixty or fifty years at MSP, a

possibility that was present in the first and second sentences respectively. Thus, we do not

accept the premise of Rardon’s argument supporting his due process claim. As such, we hold

that Rardon’s right to due process was not implicated by the third sentence.
14

CONCLUSION

¶31 In summary, the first two sentencing proceedings were tainted by the prosecutor’s

breach of the plea agreement. In the third proceeding, however, the prosecutor honored the

State’s obligation under the agreement. We hold that the prosecutor did not breach the plea

agreement, Corrigan did not violate this Court’s instructions in Rardon II, and the sentence

did not violate Rardon’s right to due process. Therefore, we affirm the District Court.

/S/ JAMES C. NELSON

We Concur:

/S/ KARLA M. GRAY

/S/ JOHN WARNER

/S/ PATRICIA O. COTTER

/S/ JIM RICE