No. 13480 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977

DONALD E. RYAN, Petitioner and Appellant,
VS. ROGER CRIST, WARDEN, Respondent and Appellee. Appeal from: District Court of the Thirteenth Judicial District, Honorable Robert Wilson, Judgepresiding. Counsel of Record: For Appellant: Donald E. Ryan, Pro Se, Deer Lodge,Montana For Respondent: Michael Greely,Attorney General, Helena,Montana Harold 

### F. Hanser, County Attorney, Billings,

Montana Argument waived and submitted on briefs.
Submitted: January 14, 1977 Decided:

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cFiled: 

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Clerktv~r.'tscicd 3d~liel 2. 

### sned 3eLiveied :he dpiliio~l 

### >f irhe Court.
3eielldant appeals from an order of the district court, Yelluwscone County, refusing tovacate a 10 year sentence imposed
ror three counts of grand larceny. He contends that in imposing this sentence the district court improperly considered his prior Celony record because defendant did not have counselwhen the obtained the convictions. The statedoes not dispute thathe didnot have counsel atthe time. The facts leading to defendant's claim are: On July 27, L9/3, Jefendant pleaded guilty to three counts of grand larceny

did the Jistrict court deferred imposition of sentence for one year. (The pre-sentence report showed defendant did have a prior felony record, although therewas no indication defendant was then without counsel). Almost a year later, on July 

### 8, 1974, the Yellowstone Jounty attorney filed a petition for revocation of the deferred ,=~itence alleging defendant committed the crime of larceny while

SJLIprobation. Defendant was represented atthe revocation hearing by 

### a public defender. After hearing, the district court revoked the deferred sentence and imposed a 10year prison sentence. On appeal this Court affirmed on an issuenot related to thispresent appeal. Statev. Ryan, 166Mont. 41-9, 

### 533 P.2d 1076. While serving his time inprison, defendant filed

### a pro se proceeding with the sentencing court seeking tovacate his 10year sentence. He claimed he was entitled tobe resentenced because the disrrictcourt improperly consideredhis felony record acquired before he pleaded guilty tothe three counts of grand larceny. Defendant claimed this tobe illegal, because he didnot have counsel representing him. Upon receiving this claim the district court appointed thepublic deiender to rep~rsenc ilei-e~rclant(the same public defender who had represented defendant atthe probation revocation hearing cind on the previous appeal). Defendant was not returned from prison toparticipate atthe hearing. Although the district court did not hold an evidentiary hearing, it isclear the statedid not dispute that defendant's previous felony record was constitutionally infirmbecause he did rlot have counsel representing him. Accordingly, under those circumstances the district court could not consider those previous telonies as a basis for sentencing the defendant, afterhe had pleaded guilty to the later felonies. United Statesv. Tucker, 

### 404 U.S. 443, 92 S.Ct. 589, 30 

### L ed 2d 592. 

### As a basis for keeping the sentence at 10years the district court simply concluded the sentence would have been the same even ifhe had not considered defendant's prior felony record. We have no way of knowing the processes used by the district courtjudge in initiallyimposing Lhe 

### 10year sentence. Defendant, filing hisbriefs pro se, raises several issues but sincewe reverse and remand for resentencing we need only consider the issue of the previous felony convictions obtained while defendant was not represented by counsel. 

### It isclear that a sentencing court cannot rely upon a previuas criminal record in sentencing if that record contains constitutionally infirm convictions. United Statesv. Tucker, supra. It isundisputed here that defendant was not represented by counsel when he was convicted of the previous felonies. However, the state contends the 10year sentence imposed when his felony record was exposed to the sentencingjudge was cured when the districtjudge stated the sentencewould have been the same, eveni-il '~d hdJ 11i)t '~I~U\N~I JL fzhe p~evic)us felu~1~ convictions. That is not enough. There isnothing in the record to support that t~osition, nor do we think 

### it isthe proper way of handling the .ituation. Apparently several federal courtshave taken the position siniilar to that urged by the state. Lipscomb 

### v. Clark, 

### 468 F.2d 1.321 (5th Cir.); Russo 

### v. United States, 470 F.2d 1357 (5th Cir.); Yilsey 

### v. United States, 496 F.2d 619 (2d Ciz); United States

### v. Yermann, 524 F.2d 1103 (2d Cir.). The theory is that the process
'1.~~ been purifiedby the sentencing court's determination that the 3e~itence he originallyhanded down would stillbe the same if he had not had improper informationbefore him. A defendant is ~i~ly entitled tobe resentenced if the sentencing court concludes Lhe improper information might have affected the sentence. We lo .lot adopt this approach. We hold that where it is shown improper matters have been brought before the sentencing court for itsconsideration in se~itencing, and where those matters are not disclosed and explained ~t the sentencing hearing, a defendant has a right tobe resentenced. This isthe best way of preserving the integrity of the sentencing process. The judgment of the district court isreversed and this case isremanded to the district court for resentencing.--.Chief Justice