No. 13244 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1976 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vs - 

FRANKLIN MANN , 

Defendant and Appellant. 

Origina 1 Proceeding : 

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, Assistant Attorney 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 set aside 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 assault was committed upon the person of one Dawn M. Schaeffer, 

a foster child two years old, placed with petitioner and his wife. 

Following arrest, petitioner was released on bond and trial was 

set for April 28, 1975. On that date, petitioner withdrew his 

plea of not guilty and entered a plea of guilty. Sentencing was 

set for May 29, 1975. After a presentence investigation, petitioner 

was sentenced to 15 years in the state prison. 

During the period from the time of his arrest in December 

1974, to his sentencing in May 1975, petitioner underwent evaluation and treatment from Dr. Edward E. Shubat, a clinical psychologist in Great Falls, Montana. Dr. huba at's report was submitted 

to the trial court and he testified at the 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 six percent of the population. His record reveals no juvenile record nor any arrests. He 

has an honorable discharge from the United States Air Force. The 

child Dawn was placed in petitioner'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 it worked out. 

At the time of the sentence hearing, Dr. Shubat testified 

petitioner was sufferingb an obsessive-compulsive neurosis at the 

time of the assault. However, he stated that after treatment petitioner worked toward learning how to deal with his neurosis and had 
moved ro that uoint where he would require no more than six months 

of treatment to be completely recovered. He further testified that, 

in his opinion, prison would be detrimental to petitioner and he 

was not a danger to anyone. 

The trial judge noted, after hearing the testimony in 

miriga tion : 

I I I wish someone could come in here and tell the Court 

this little girl he beat up would have as good a treatment as he has got. All the rest of her life she is 

not going to recover. She is a baby, and until the day 

she dies she will probably 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, all the rest of her 

Life will be nothing. 11 

4fter entering the state prison, 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 facts relied upon by the 

court "* 9~ 9; is absolutely false. r I 

2. Accompanying Dr. ~aling's letter wasa report 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 trial court, in~l,)ting solely upon 

an unsubstantiated fact appearing nowhere in the record, denied him 

his constitutional due process right under the United States Constitution and the Montana Constitution to notice 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 is whether 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 L Ed 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 in Townsend, which 

petitioner alleges is applicable 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 or design, is inconsistent with due process of law, and such a conviction cannot stand. l I 

We find the cases relied upon by petitioner are factually 

not in puinc to the instant case and therefore are not applicable. 

Here, the trial court had far more 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 the beating. 

In addition to the affidavit for leave to file the 

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, their records, studies, examination, 

laboratory results, x-rays, and analyses prepared in their examination and treatment of the child Dawn. 

Photographs of Dawn were taken on December 7, 1974, while 

she was at the Deaconess Hospital. The trial court 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 at the time of the sentencing. 
In addition, the court had before it a full investigatory report 

of Officer Macek, who went to the hospital with 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 child was in a critical condition. The report notes: 

"We found that she was in a coma, that the bruises 

extended from her head to her toes. Her head was 

bandaged. Her arms and legs were all bruised. The 

inner portion of her legs and vagina were purple. 

The side of her face was bruised,' and one eye blackened. 

Her back had bruises on it, along with portions of her 

stomach. Her right side appeared to be paralyzed." 

The report indicated the attending doctors were certain 

the child had been assaulted and the injuries were not from any 

accident. Dr. Curtis indicated that he felt the bruises extended 

over a period of time. 

A letter in the file from 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 at the time she was 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. As her injuries had caused neuromuscular 

damage, her movements on her right side appeared spastic 

and she had little control over that side of her body." 

This Court has consistently held that if a sentence is 

within the statutory limits provided by the statute, it is not 

an abuse of the trial court's discretion. State v. Gussenhoven, 

116 Mont. 350, 152 P.2d 876; Petition of Amor, 143 Mont. 305, 389 

P.2d 54. Here, a review of,the court file leads this Court to the 

conclusion that the trial court had sufficient facts before it. 

We find no abuse of discrection. 

Finding no grounds to set aside the sentence, we affirm 

the district court. 
We Concur: