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, Judge presiding. 

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 : ~py-9 1977 cFiled: MY - 9 1977 

, -9 Clerk 
tv~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 to vacate 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 counsel when the 

obtained the convictions. The state does not dispute that he 

did not have counsel at the 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 there was 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 

SJLI probation. Defendant was represented at the revocation hearing 

by a public defender. After hearing, the district court revoked 

the deferred sentence and imposed a 10 year prison sentence. On 

appeal this Court affirmed on an issue not related to this present 

appeal. State v. Ryan, 166 Mont. 41-9, 533 P.2d 1076. 

While serving his time in prison, defendant filed a pro se 

proceeding with the sentencing court seeking to vacate his 10 year 

sentence. He claimed he was entitled to be resentenced because the 

disrrict court improperly considered his felony record acquired 

before he pleaded guilty to the three counts of grand larceny. 

Defendant claimed this to be illegal, because he did not have counsel 

representing him. 

Upon receiving this claim the district court appointed the 
public deiender to rep~rsenc ilei-e~rclant (the same public defender 

who had represented defendant at the probation revocation hearing 

cind on the previous appeal). Defendant was not returned from 

prison to participate at the hearing. 

Although the district court did not hold an evidentiary 

hearing, it is clear the state did not dispute that defendant's 

previous felony record was constitutionally infirm because 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, after he had 

pleaded guilty to the later felonies. United States v. Tucker, 

404 U.S. 443, 92 S.Ct. 589, 30 L ed 2d 592. As a basis for 

keeping the sentence at 10 years the district court simply concluded 

the sentence would have been the same even if he had not considered 

defendant's prior felony record. We have no way of knowing the 

processes used by the district court judge in initially imposing 

Lhe 10 year sentence. 

Defendant, filing his briefs pro se, raises several issues 

but since we 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 is clear that a sentencing court cannot rely upon a 

previuas criminal record in sentencing if that record contains 

constitutionally infirm convictions. United States v. Tucker, supra. 

It is undisputed here that defendant was not represented by 

counsel when he was convicted of the previous felonies. However, 

the state contends the 10 year sentence imposed when his felony 

record was exposed to the sentencing judge was cured when the 

district judge stated the sentence would have been the same, even 
i-il '~d hdJ 11i)t '~I~U\N~I JL fzhe p~evic)us felu~1~ convictions. That 

is not enough. There is nothing in the record to support that 

t~osition, nor do we think it is the proper way of handling the 

.ituation. 

Apparently several federal courts have 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 purified by the sentencing court's determination that the 

3e~itence he originally handed down would still be the same if 

he had not had improper information before him. A defendant is 

~i~ly entitled to be 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 its consideration in 

se~itencing, and where those matters are not disclosed and explained 

~t the sentencing hearing, a defendant has a right to be resentenced. 

This is the best way of preserving the integrity of the sentencing 

process. 

The judgment of the district court is reversed and this case 

is remanded to the district court for resentencing. 
--. 

Chief Justice