No. 95-049 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

RONALD DeSALVO, a/k/a 

RONALD SALVATI 

Defendant and Appellant. 

APPEAL FROM: District Court of the Seventeenth Judicial District, 

In and for the County of Valley, 

The Honorable John C. McKeon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

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 on Briefs: 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 15 years in the Montana 

State Prison as a persistent 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. We affirm. 

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 a witness at the 

sentencing hearing by relying on a 20-year old psychiatric report 

prepared by a person not at the hearing; and 

5) imposing a sentence which represents cruel and unusual 

punishment? 

BACKGROUND 

DeSalvo broke into a drugstore in Glasgow, Montana, and stole 

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 was not willing to admit to all 

elements of the offense. On May 2, 1994, the District Court 

accepted DeSalvo's guilty plea. 

The State filed a notice of intent to seek sentencing for 

DeSalvo as a persistent felony offender. DeSalvo requested the 

District Court to appoint a professional to conduct a psychological 

evaluation and to help evaluate his psychiatric record from the 

Warm Springs State Hospital. The District Court appointed Dr. Kay 

Dorr. DeSalvo then applied for a hearing on exceptions to 

mandatory minimum sentences. The District Court granted the 

hearing and heard the evidence on exceptions, finding that DeSalvo 

had no significant impairment and therefore his application for an 

exception to the mandatory minimum sentence did not apply. At the 

sentencing hearing, the District Court found DeSalvo to be a 

persistent felony offender and sentenced him to 15 years in the 

Montana State Prison. DeSalvo moved for reconsideration, and the 

District Court subsequently denied the motion. DeSalvo appeals 

from the District Court's order denying his motion for 

reconsideration and from the judgment filed November 14, 1994. 

DISCUSSION 

DeSalvo claims that the District Court abused its discretion 

by sentencing him to 15 years in prison as a persistent felony 

offender. Specifically, he argues that the District court 

committed five errors that amount to an abuse of discretion. Each 

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of these will subsequently be addressed in turn. 

At the outset, however, it is important to reemphasize that we 

consistently grant trial judges broad discretion to determine 

appropriate punishment and will not review a sentence on appeal for 

mere inequity or disparity. State v. Hembd (1992), 254 Mont. 407, 

411, 838 P.2d 412, 415; State v. Dahms (1992), 252 Mont. 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, 52 St.Rep. 54, 56 (citing 

State v. Hurlbert (1988), 232 Mont. 115, 123, 756 P.2d 1110, 1115). 

The District Court sentenced DeSalvo for criminal possession 

of dangerous drugs, pursuant to 5 45-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 "a persistent felony offender shall be 

imprisoned in the state prison for a term of not less than 5 years 

or more than 100 years . . . .'I In accordance with our decision in 

State v. Fitzpatrick (1991), 247 Mont. 205, 805 P.2d 584, the 

District Court used 5 46-18-502, MCA, in place of the maximum 

sentence and not as an additional sentence. 

DeSalvo claims that the mandatory minimum sentence of five 

years does not apply to him because he falls within the exceptions 

found in § 46-18-222, MCA. Section 46-18-222(2), MCA, provides in 

part: 
All mandatory minimum sentences . do not apply if: 

. . . (2) the defendant's mental capacity, at the time 

of the commission of the offense for which the defendant 

is to be sentenced, was significantly impaired, although 

not so impaired as to constitute a defense to the 

prosecution. However, a voluntarily induced intoxicated 

or drugged condition may not be considered an impairment 

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, and that by definition, dementia amounted to significant 

impairment. However, a psychological report conducted by Dr. James 

Dick at the Warm Springs State Hospital stated that DeSalvo's 

testing was not indicative of organic impairment. Additionally, 

the psychiatric evaluation by Dr. 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 

5 
of 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. Kay Dorr'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, and heard testimony regarding 

Dr. Kay Dorr's and the Warm Springs 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 no evidence 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 was not significantly impaired? 

Second, DeSalvo claims that the District Court's finding that 

his mental state was not significantly impaired was contrary 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 

6 
the 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), 265 Mont. 127, 875 P.2d 307, the 

defendant argued that two of the exceptions to the mandatory 

minimum sentence applied. The district court conducted a hearing 

to determine if the exceptions applied and concluded that 

defendant's mental capacity was not substantially impaired. 

Arlinqton, 875 P.2d at 331. On review, we stated that 'I' [blecause 

the judge was not disposed to give the minimum sentence, there is 

no chance that he would have given less than the minimum sentence.' 

Therefore, we hold 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 a persistent felony offender and therefore the exceptions did 

not apply. DeSalvo himself recommended a sentence longer than the 

mandatory minimum sentence. Given the evidence presented, we hold 

that there was substantial evidence to support the District Court's 

decision that DeSalvo's mental state was not 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 

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sentencing 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 Warm Springs 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 on incorrect 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 a criminal defendant has a right to a sentence 

based on substantially correct information, we will not strain to 

find a mistake. "Rather, the District Court is presumed to be 

correct." Petroff, 757 P.2d at 761 (citing State v. Lane (19771, 

175 Mont. 225, 231, 573 P.2d 198, 202); see also State v. McPherson 

(1989), 236 Mont. 484, 490, 771 P.2d 120, 124. 

In the instant case we find no indication that the District 

Court relied on incorrect information. The District Court based 

its conclusion that DeSalvo was deceptive on an assessment of all 

the evidence including the testimony of the probation officer and 

Dr. Kay Dorr. Furthermore, as pointed out above, DeSalvo's alleged 

significant mental impairment is immaterial because the District 

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

Therefore, we hold that the District Court did not abuse its 

discretion in relying on the Warm Springs State Hospital reports as 

well as the testimony of Dr. Kay Dorr to determine that DeSalvo's 

mental capacity was not significantly impaired. 

4. Did the District Court abuse its discretion by 

denying DeSalvo the right to confront a witness 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 by relying on Dr. 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. The State 

contends that a sentencing judge may use information from sources 

other than the testimony of witnesses in open court, and thus, at 

a sentencing hearing, a court may receive any probative evidence. 

We agree. 

In State v. Higley (1980), 190 Mont. 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. New York 

(1949), 337 U.S. 241, 250-51, 69 S.Ct. 1079, 1085, 93 L.Ed. 1337, 

1344 (holding that a denial of confrontation and cross-examination 

of witnesses in a sentencing hearing did not violate due process 

rights)) ; see also State v. D.B.S. (1985), 216 Mont. 234, 248, 700 

P.2d 630, 639. In Hiqley, the sentencing judge told the defendant 

the facts he was relying on and gave the defendant the opportunity 

9 
to refute the information and therefore adequately protected the 

defendant's rights. Hislev, 621 P.2d at 1055. 

In the instant case, the District Court did not violate 

DeSalvo's right to confrontation at the sentencing hearing because 

the sentencing judge provided DeSalvo the opportunity to know what 

information would be presented and the opportunity to rebut that 

information. DeSalvo knew that the Warm Springs State Hospital 

reports would be considered and he had the opportunity to rebut the 

information contained in the reports. Accordingly, we hold that 

the District Court properly considered the Warm Springs State 

Hospital's reports at the sentencing hearing. 

5. Did the District Court abuse its discretion by 

imposing a sentence which represents cruel and unusual 

punishment? 

Fifth, DeSalvo argues that his 15-year sentence constitutes 

cruel and unusual punishment because it was excessive and based on 

punishment rather than rehabilitation. The State contends that a 

sentence is not cruel or unusual punishment if it falls within the 

maximum statutory guidelines. Moreover, review of sentences which 

do not exceed the statutory maximum properly lies with the Sentence 

Review Division. DeSalvo agrees, but counters that his punishment 

is greatly disproportionate to his crime and that it shocks the 

conscience and outrages the moral sense of the community. 

We have held that I' [t]he general rule regarding sentencing is 

that a sentence within the maximum statutory guidelines does not 

violate the Eighth Amendment prohibition against cruel and unusual 

punishment." Dahms, 825 P.2d at 1221. Moreover, the proper 

10 
channel for a challenge to the equity of a sentence as opposed to 

its legality is through the Sentence Review Division. Dahms, 825 

P.Zd at 1221. We have consistently held that "we will not review 

a sentence on appeal for mere inequity or disparity." Dahms, 825 

P.2d at 1221 (citing State v. Almanza (19871, 229 Mont. 383, 386, 

746 P.2d 1089, 1090-91). 

III the instant case, the District Court sentenced DeSalvo 

within the maximum statutory guidelines. For that reason, the 

District Court did not impose cruel and unusual punishment on 

DeSalvo. We hold that further review of the sentence for any 

alleged inequity properly lies with the Sentence Reviewpivision.