### No. 95-049 INTHESUPREME

COURTOFTHESTATEOFMONTANA 1995

STATEOFMONTANA, Plaintiff andRespondent,

v. RONALDDeSALVO,a/k/a RONALDSALVATI Defendant andAppellant.

APPEALFROM: District Court of the Seventeenth Judicial District,

In andfor the County of Valley, TheHonorable JohnC.McKeon,Judgepresiding.

COUNSELOFRECORD:

ForAppellant: David L. Irving, Glasgow, Montana For Respondent: Hon. Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena, Montana; Kenneth Oster, Valley County Attorney, Glasgow, Montana

Filed: Submitted onBriefs: July 27, 1995 Decided: September 29, 1995

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

Following a pre-sentence investigation, the Seventeenth Judicial District Court, Valley County, sentenced Appellant Ronald DeSalvo, a/k/a Ronald Salvati (DeSalvo) to 15years in the Montana State Prison as apersistent felony offender. The District Court denied DeSalvo's motion for reconsideration. DeSalvo appeals the District Court's denial of his motion for reconsideration and its judgment entered November 14, 1994. Weaffirm. ISSUES DeSalvo presents the following issues on appeal: Did the District Court abuse its discretion by: 1) not considering evidence of mitigation at the sentencing hearing; 2) finding that based on the evidence, DeSalvo's mental capacity was not significantly impaired; 3) relying on substantially incorrect information at the sentencing hearing; 4) denying DeSalvo the right to confront awitness at the sentencing hearing by relying ona20-year old psychiatric report prepared by aperson not at the hearing; and 5) imposing a sentence which represents cruel and unusual punishment?

BACKGROUND DeSalvo broke into adrugstore in Glasgow, Montana, andstole prescription drugs. The County Attorney for Valley County charged DeSalvo with burglary, theft, and criminal possession of dangerous drugs, all felonies. Upon motion by the State to dismiss the charges of burglary and theft, the District Court ordered the

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### dismissals. Initially, DeSalvo pleaded guilty to criminal

possession of dangerous drugs, but the District Court did not accept the plea because DeSalvo wasnot willing to admit to all elements of the offense. OnMay2, 1994, the District Court accepted DeSalvo's guilty plea. TheState filed anotice of intent to seek sentencing for DeSalvo asapersistent felony offender. DeSalvo requested the District Court toappoint aprofessional toconduct apsychological evaluation andto help evaluate his psychiatric record from the WarmSprings State Hospital. TheDistrict Court appointed Dr. Kay Dorr. DeSalvo then applied for a hearing on exceptions to mandatory minimum sentences. The District Court granted the hearing andheard the evidence onexceptions, finding that DeSalvo hadnosignificant impairment andtherefore his application for an exception to the mandatory minimumsentence did not apply. Atthe sentencing hearing, the District Court found DeSalvo to be a persistent felony offender andsentenced him to 15years in the Montana State Prison. DeSalvo movedfor reconsideration, andthe District Court subsequently denied the motion. DeSalvo appeals from the District Court's order denying his motion for reconsideration andfrom the judgment filed November 14, 1994. DISCUSSION DeSalvo claims that the District Court abused its discretion by sentencing him to 15years in prison asapersistent felony offender. Specifically, he argues that the District court committed five errors that amounttoanabuseof discretion. Each

3of these will subsequently beaddressed in turn.

At the outset, however, it is important to reemphasize that we consistently grant trial judges broad discretion to determine appropriate punishment andwill not review asentence onappeal for

mere inequity or disparity. State v. Hembd (1992), 254Mont. 407, 411, 838 P.2d 412, 415; State v. Dahms (1992), 252Mont. 1, 13, 825 P.2d 1214, 1221. Accordingly, we review a district court's sentencing decision for legality only and will not disturb the decision unless the district court abused its discretion. State v. Blanchard (19951, 889 P.2d 1180, 1182, 52St.Rep. 54, 56 (citing State v. Hurlbert (1988), 232Mont. 115, 123, 756 P.2d 1110, 1115). The District Court sentenced DeSalvo for criminal possession of dangerous drugs, pursuant to 545-g-102(5), MCA, the maximum sentence for which is not more than five years incarceration. However, because the District Court found DeSalvo to be a persistent felony offender, it applied §46-18-502, MCA. Section 46-18-502, MCA, states that "apersistent felony offender shall be imprisoned in the state prison for aterm of not less than 5years

or more than 100years

. . . .'I In accordance with our decision in State v. Fitzpatrick (1991), 247 Mont. 205, 805 P.2d 584, the District Court used 546-18-502, MCA, in place of the maximum sentence andnot as anadditional sentence. DeSalvo claims that the mandatory minimum sentence of five years does not apply to him because hefalls within the exceptions found in §46-18-222, MCA. Section 46-18-222(2), MCA,provides in part:All mandatory minimum sentences

. donot apply if:

. . . (2) the defendant's mental capacity, at the time of the commission of the offense for which the defendant is to besentenced, wassignificantly impaired, although not so impaired as to constitute a defense to the prosecution. However, avoluntarily induced intoxicated or drugged condition maynot beconsidered animpairment for the purposes of this subsection. Specifically, DeSalvo claims that his mental capacity at the time of the commission of his offense was significantly impaired. Dr. Kay Dorr, the court appointed professional, testified that DeSalvo had dementia, a contemporary term for organic brain syndrome, andthat bydefinition, dementia amounted to significant impairment. However, apsychological report conducted byDr. James Dick at the Warm Springs State Hospital stated that DeSalvo's testing was not indicative of organic impairment. Additionally, the psychiatric evaluation byDr. Alexander, the clinical director at Warm Springs State hospital, also noted that there were no indications of organic impairment. 1. Did the District Court abuse its discretion by not considering evidence of mitigation at the sentencing hearing? In support of his claim of abuse of discretion, DeSalvo first argues that the District Court failed to consider the evidence he offered supporting mitigation of his sentence. Section 46-18-115, MCA, requires the sentencing court to afford the parties an opportunity to be heard on any matter relevant to disposition, including the applicability of mandatory minimum sentences and to ascertain if the defendant wishes to present any information in mitigation of punishment. DeSalvo presented evidence of mitigation

5of punishment arguing that the exceptions to the mandatory minimum

sentence for persistent felony offenders should have applied. The State agreed that the sentencing court must consider evidence of mitigation of punishment. In fact, the State argued that the District Court did fully consider the evidence and expressly acknowledged Dr. KayDorr's testimony regarding dementia. DeSalvo concedes that the District Court granted an extension of sentencing, appointed Dr. Kay Dorr to examine him and to assist in evaluating his mental health reports, andheard testimony regarding Dr. KayDorr's andthe WarmSprings State Hospital's evaluations of him. DeSalvo simply does not agree with the District Court's finding that the evidence did not support the exception to the mandatory minimum sentence. As demonstrated by both the State and DeSalvo, the District Court fully considered DeSalvo's evidence of mitigation of punishment. DeSalvo presented noevidence that the District Court abused its discretion. Accordingly, we hold that the District Court complied with its statutory duty to consider evidence of mitigation of punishment. 2. Did the District Court abuse its discretion by finding that based on the evidence, DeSalvo's mental capacity wasnot significantly impaired? Second, DeSalvo claims that the District Court's finding that his mental state wasnot significantly impaired wascontrary to the evidence presented at the sentencing hearing. The State argues, however, that the District Court, like any trier of fact, is free to accept or reject any expert opinion evidence in light of all of

6the evidence presented to the trier of fact. In addition, the

State claims that the exceptions pursuant to § 46-18-222, MCA, apply only when the sentencing court intends to sentence the defendant to less than the mandatory minimum sentence. In State v. Arlington (1994), 265Mont. 127, 875P.2d 307, the defendant argued that two of the exceptions to the mandatory minimum sentence applied. The district court conducted ahearing to determine if the exceptions applied and concluded that defendant's mental capacity was not substantially impaired. Arlinqton, 875 P.2d at 331. Onreview, westated that 'I'[blecause the judge was not disposed to give the minimum sentence, there is

nochance that hewould have given less than the minimum sentence.' Therefore, wehold that the sentencing court correctly found §46- 18-222, MCA, inapplicable." Arlington, 875 P.2d at 331 (quoting State v. Stroud (1984), 210 Mont. 58, 78, 683 P.2d 459, 469). In the instant case, the District Court stated that it did not intend to sentence DeSalvo to less than the mandatory minimum sentence. In its order denying reconsideration, the District Court stated that it was not disposed to consider the minimum sentence for apersistent felony offender and therefore the exceptions did not apply. DeSalvo himself recommended asentence longer than the mandatory minimum sentence. Given the evidence presented, wehold that there wassubstantial evidence to support the District Court's decision that DeSalvo's mental state wasnot significantly impaired and, therefore, the District Court did not abuse its discretion. 3. Did the District Court abuse its discretion by relying on substantially incorrect information at the 7sentencing hearing?

Third, DeSalvo argues that the District Court relied on

erroneous information in the sentencing hearing. DeSalvo claims that the 20-year old psychiatric report prepared by Dr. James Dick conflicted with other reports from the WarmSprings State Hospital and with Dr. Kay Dorr's testimony and evaluation. The State contends that the District Court's ruling on DeSalvo's mental impairment is immaterial because the exceptions to §46-18-222, MCA, did not apply. The State further argues that DeSalvo failed to show that the District Court relied onincorrect facts to reach its conclusion. In State v. Petroff (1988), 232 Mont. 20, 757 P.2d 759, the defendant contended that the district court relied on incorrect information in sentencing him. Petroff, 757 P.2d at 761. We stated that although acriminal defendant has aright to asentence based onsubstantially correct information, wewill not strain to find amistake. "Rather, the District Court is presumed to be correct." Petroff, 757 P.2d at 761 (citing State v. Lane (19771, 175Mont. 225, 231, 573P.2d 198, 202); seealso State v. McPherson (1989), 236 Mont. 484, 490, 771 P.2d 120, 124. In the instant case wefind no indication that the District Court relied on incorrect information. The District Court based its conclusion that DeSalvo wasdeceptive onanassessment of all the evidence including the testimony of the probation officer and Dr. Kay Dorr. Furthermore, aspointed out above, DeSalvo's alleged significant mental impairment is immaterial because the District

8Court did not consider the mandatory minimum sentence for Desalvo.

Therefore, we hold that the District Court did not abuse its discretion in relying onthe WarmSprings State Hospital reports as well as the testimony of Dr. Kay Dorr to determine that DeSalvo's mental capacity wasnot significantly impaired. 4. Did the District Court abuse its discretion by denying DeSalvo the right to confront awitness at the sentencing hearing by relying on a 20-year old psychiatric report prepared by a person not at the hearing? Fourth, DeSalvo argues that byrelying onDr. James Dick's 20- year old report, the District Court denied his Sixth Amendment right to confront the witnesses against him. Specifically, DeSalvo argues that because Dr. James Dick was not present at the sentencing hearing, DeSalvo could not cross-examine him. TheState contends that asentencing judge mayuse information from sources other than the testimony of witnesses in open court, and thus, at

asentencing hearing, acourt may receive any probative evidence. Weagree. In State v. Higley (1980), 190Mont. 412, 621 P.2d 1043, we held that the rules of evidence do not apply to the sentencing hearing. Hiqlev, 621 P.2d at 1054-55 (citing Williams v. NewYork (1949), 337 U.S. 241, 250-51, 69S.Ct. 1079, 1085, 93L.Ed. 1337, 1344 (holding that adenial of confrontation andcross-examination of witnesses in asentencing hearing did not violate due process rights)) ;see also State v. D.B.S. (1985), 216Mont. 234, 248, 700 P.2d 630, 639. In Hiqley, the sentencing judge told the defendant the facts hewasrelying onandgave the defendant the opportunity

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### to refute the information andtherefore adequately protected the

defendant's rights. Hislev, 621P.2dat 1055. In the instant case, the District Court did not violate DeSalvo's right to confrontation atthe sentencing hearing because the sentencing judge provided DeSalvo the opportunity to knowwhat information would bepresented andthe opportunity to rebut that information. DeSalvo knewthat the WarmSprings State Hospital reports wouldbeconsidered andhehadtheopportunity to rebut the information contained in the reports. Accordingly, wehold that the District Court properly considered the WarmSprings State Hospital's reports at the sentencing hearing. 5. Did the District Court abuse its discretion by imposing asentence which represents cruel andunusual punishment? Fifth, DeSalvo argues that his 15-year sentence constitutes cruel andunusual punishment because it wasexcessive andbasedon punishment rather than rehabilitation. TheState contends that a sentence is not cruel or unusual punishment if it falls within the maximumstatutory guidelines. Moreover, review of sentences which donot exceedthe statutory maximumproperly lies with the Sentence Review Division. DeSalvo agrees, but counters that his punishment is greatly disproportionate to his crime andthat it shocks the conscience andoutrages the moral sense of the community. Wehaveheld that I'[t]he general rule regarding sentencing is that asentence within the maximumstatutory guidelines does not violate the Eighth Amendmentprohibition against cruel andunusual punishment." Dahms, 825 P.2d at 1221. Moreover, the proper

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### channel for achallenge to the equity of asentence asopposed to

its legality is through the Sentence Review Division. Dahms,825 P.Zdat 1221. Wehaveconsistently held that "wewill not review

asentence onappeal for mereinequity or disparity." Dahms,825 P.2d at 1221 (citing State v. Almanza (19871, 229Mont. 383, 386, 746P.2d 1089, 1090-91). III the instant case, the District Court sentenced DeSalvo within the maximumstatutory guidelines. For that reason, the District Court did not impose cruel and unusual punishment on DeSalvo. Wehold that further review of the sentence for any alleged inequity properly lies with the Sentence Reviewpivision.