No. 13244 INTHE SUPREME COURT OF THE STATE OF MONTANA 1976

THE STATE OF MONTANA, Plaintiff and Respondent,

-vs

# - FRANKLIN 

### MANN

# , Defendant and Appellant.

Origina

### 1Proceeding: Counsel of Record: For Appellant: J. Vau@n:Barron argued, Great Falls, Montana For Respondent: Hon. Robert L. Woodahl, Attorney General, Helena,

Montana John F. North argued, AssistantAttorney General,

Helena, Montana 3. Fred Bourdeau, County Attorney, Great Falls,

Montana Carroll C. Blend, Deputy County Attorney, appeared,

Great Falls, Montana

Submitted: February 14, 1976 ;!i2 ,in $

## tgtE ~ecided :

### Mr. Justice John Conway Harrison delivered the Opinion of the Court.
Petitioner filed a petition in this Court, pursuant to section 95-2601, et.seq., R.C.M. 1947, to setaside the sentence imposed upon him by the district court, Cascade County. An adversary hearing was granted. On December 13, 1974, the Cascade County attorney filed

an Information against petitioner, charging him with the crime of aggravated assault under section 94-5-202 (1)(a), R.C.M. 1947. The assaultwas committed upon the person of one Dawn M. Schaeffer,


### a foster child two years old, placed with petitioner and hiswife. Following arrest, petitionerwas released on bond and trialwas set forApril 

### 28, 1975. On that date, petitionerwithdrew his plea of not guilty and entered a plea of guilty. Sentencingwas set forMay 29, 1975. After a presentence investigation, petitioner

was sentenced to 15 years in the stateprison. During the period from the time of his arrest inDecember 1974, tohis sentencing inMay 1975, petitioner underwent evaluation and treatment from Dr. Edward E. Shubat, a clinicalpsychologist in Great Falls, Montana. Dr. 

### huba at's report was submitted to the trialcourt and he testified atthe sentence hearing. The report shows petitioner was a 22 year old married man with an I.Q. of 123, which placed him roughly in the top sixpercent of the population. Hisrecord reveals no juvenile record nor any arrests. He has an honorable discharge from the United StatesAirForce. The child Dawn was placed inpetitioner's home on July 17, 1974, as 

### a foster home for the child, with the plan that she could be adopted by the couple if itworked out. Atthe time of the sentence hearing, Dr. Shubat testified petitionerwas sufferingban obsessive-compulsive neurosis atthe time of the assault. However, he stated that after treatment petitionerworked toward learning how to deal with hisneurosis and hadmoved ro that uoint where he would require no more than sixmonths of treatment tobe completely recovered. He further testified that, inhis opinion, prison would be detrimental topetitioner and he

was not a danger to anyone. The trialjudge noted, after hearing the testimony in mirigation:

II

I wish someone could come inhere and tell the Court this littlegirlhe beat up would have as good a treatment as he has got. Allthe rest of her life she is not going torecover. She is a baby, and until the day she dies she willprobably be a vegetable through the acts of this gentleman. I have never seen such a terrible rreatment of a child as that man gave her, and I can't overlook that. The man should be punished for the act that he did. Here is a baby girl, allthe rest of her Life willbe nothing. 11 4fter entering the stateprison, petitioner applied to the Sentence Review Division of the Supreme Court of Montana, for

a review of his sentence. Hearing was held on July 25, 1975. Counsel for petitioner undertook to investigate the facts relied upon by the court in passing sentence and submitted to the Sentence Review Board: 1. A letter from Dr. Jack L. Haling, of the Pediatrics Department of the Great Falls Clinic who had examined and tested the child. Dr. Haling reported that the factsrelied upon by the court 

# "* 9~ 9; is absolutely false.rI 2. Accompanying Dr. ~aling's letterwasareport by Nancy Shubat, Ph.D., a clinical psychologist, which confirms the findings of Dr. Haling. After hearing, the Sentence Review Board denied the relief requested and appeal was taken to this Court. Petitioner alleges the trialcourt, in~l,)ting solelyupon
an unsubstantiated fact appearing nowhere in the record, denied him his constitutional due process right under the United States Constitution and the Montana Constitution tonotice and an opportunity to challgge the truth of a fact relied upon by the court in stripping him of his liberty for 15 years of his life.The issue iswhether or nut the trial court had sufficient factual evidence before it to justify the sentence. Petitioner relies upon Townsend v. Burke, 334 

### U.S. 736, 740, 68 S.Ct. 1252, 92 LEd 1690, 1693; United States v. ldeston, 448 F.2d 626; and United States v. Espinoza, 481 F.2d 553. These cases stand for the principle stated inTownsend, which petitioner alleges isapplicable here: 

# "** Jc we concltrte

# * JX J; this prisoner was sentenced on the basis of assumptions concerning his criminal record which were materially untrue. Such a result, whether caused by carelessness ordesign, is inconsistentwith due process of law, and such a conviction cannot stand.lI We find the cases relied upon by petitioner are factually not in puinc to the instant case and therefore arenot applicable. Here, the trial court had farmore than a statement which appeared in the presentence report by Mrs. Bettis, a supervisor of the Cascade County Welfare Department, that the child had sustained permanent damage from thebeating. In addition to the affidavit for leave to filethe Information direct, which contained two pages of what happened, and upon which the court authorized the filing of the Information, the court signed orders and had before it the reports of Drs. J. A. Curtis, J. L. Haling, J. R. Halseth, Fred M. Long, Samuel Dachs, and George W. Schemm, theirrecords, studies, examination, laboratory results, x-rays, and analyses prepared intheir examination and treatment of the child Dawn. Photographs of Dawn were taken on December 7, 1974, while shewas atthe Deaconess Hospital. The trialcourt authorized and issued a search warrant on December 10, 1974, for a "belt with buckle, hair, body tissue, blood and other evidence relating to

a suspected assault on Dawn Schaeffer on or about December 5, 1974." The belt was picked up by Officer Jack L. Macek, and was part of the evidence before the court atthe time of the sentencing.In addition, the court had before it a fullinvestigatory report of Officer Macek, who went tothe hospitalwith 

### a deputy county attorney and who interviewed the various doctors and nurses in attendance. This report indicated that 

### at 10:OO p.m. on December 7, 1974, the childwas in a criticalcondition. The report notes: "We found that shewas ina coma, that thebruises extended from her head toher toes. Her head 

### was bandaged. Her arms and legswere allbruised. The inner portion of her legs and vagina were purple. The side of her facewas bruised,' and one eye blackened. Her back had bruises on it, alongwith portions of her stomach. Her right sideappeared tobe paralyzed." The report indicated the attending doctorswere certain the child had been assaulted and the injurieswere not from any accident. Dr. Curtis indicated that he felt the bruises extended

over a period of time. A letter inthe filefrom the Cascade County Welfare Department dated May 16, 1975, reported that Dawn had been released from the hospital on February 4, 1975. Among other things, the letter states that atthe time shewas released
"9: %he was unable to sit alone and had iust begun to feed herself. Her speech patterns were limited and she spoke in a parroting manner, smiling very little. Asher injurieshad caused neuromuscular damage, her movements on her right side appeared spastic and she had littlecontrol over that sideof her body." This Court has consistently held that ifa sentence 

### is within the statutory limitsprovided by the statute, it isnot an abuse of the trialcourt's discretion. Statev. Gussenhoven, 116Mont. 350, 152 P.2d 876; Petition of Amor, 

### 143Mont. 305, 

### 389 P.2d 54. Here, a review of,thecourt fileleads this Court to the conclusion that the trialcourt had sufficient factsbefore it. We findno abuse of discrection. Findingno grounds to set aside the sentence, 

### we affirm the districtcourt.

### We Concur: