No. 80-217 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

THE STATE OF MONTANA, Plaintiff and Respondent,

VS

# . JAMES W. BALDWIN, Defendant and Appellant.

Appeal from: District Court of the SixthJudicial District, In and for the County of Sweet Grass. Honorable Jack Shanstrom, Judge presiding. Counsel of Record: For Appellant: Stacey and Jarussi, Billings, Montana Calvin Stacey argued, Billings, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Chris D. Tweeten argued, Assistant Attorney General, Helena, Montana Conrad B. Fredericks argued, Big Timber, Montana

Submitted: March 23, 1981 Decided: June 4, 1981 Filed:

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Y ClerkMr. Justice Daniel J. Shea delivered the Opinion of the Court. Defendant appeals the sentence imposed by the Sweet Grass County District Court following his convictionof aggravated assault. A jury trialwas held onMarch 10, 1980. The court sentenced defendant on March 17, 1980, to fifteenyears imprisonmentwith five years suspended. He raises two issues challenging the legality of his sentence. First,defendant contends that the trial court erred in considering for sentencingpurposes, the facts underlying

a prior charge of aggravated assault of which defendantwas acquitted. Second, defendant asserts that he received an increased sentencebecause he chose to exercisehis constitutional right to a jury trial instead of agreeing to plead guilty. We hold against the defendant on the first issue. Becausewe cannot determine fron the record whether defendant was punished for exercising his right to a trial by jury,we vacate the sentenceand remand for resentencing. On November 26, 1979,defendantmet some casual acquaintances in a bar in Big Timber. The defendant agreed to accompany four of the acquaintances to Room 10 at the SweetgrassMotel to view and possibly purchase some drugs. He went to themotel in his pickup, accompanied by Michael and Elton Tronrud. The Tronrud brothers remained in the defendant's pickup while the defendant went into themotel room. While in the motel room, a fight occurred in which the defendant suffered variousminor injuries. After the fight, the defendant left the motel room and returned to his pickup. He asked Michael Tronrud to drive and told him to stop the pickup opposite Room 10. The defendant took a rifle out of the pickup and fired one shot through the curtainedmotelwindow. Fragments from the bullet and broken glass struck one of the occupants, causing minor injuries. Defendantwas charged by information with aggravated assault on December 3, 1979. On December 13, 1979,a preliminary presentence investigationwas ordered by the court with the consent of the defendant. After reviewing the presentence report, the judge sent a letter to defendant's counsel,William Schreiber, stating that

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# . . upon a plea of guilty theminimum sentence that Iwould give Mr. Baldwin would be a 5year sentencewith all but 45 days suspended, said 45 days to be served in the State Prison at Deer Lodge, Powell County,Montana." In this letter, the judge also that stated, 

### "I feelithis is as lenient as I canpossibly be in the case, and that if he does not want to enter a plea on these conditions why shouldwe prepare to go to trial on the merits of the case." Defendant chose not to plead guilty and went to trial. After defendant's conviction,the court ordered a supplemental presentence investigationprepared. At the sentencing hearing, defense counsel objected to the references thatboth presentence reports made to defendant's acquittal on aggravated assault charges in Missoula in 1976. The firstpresentence reportmerely referred to the fact of acquittal. The second contained defendant's own description of the events leading to the charge: in the course of a brawl outside a Missoula bar, defendant shot a person in the stomach with a shotgun. It was the defendantwho voluntarily supplied theprobation officer with the information included in the second presentence report. Although the details of the incident are somewhat fuzzy, it appears that the defendant claimed self-defense. The jury acquitted the defendant.At the time of sentencing, the trial court stated that itwould consider the fact that defendantwas found not guilty on the Missoula charge of aggravated assault,but that it could not completely overlook the incident which gave rise to those charges. The courtbelieved that the Missoula incidentresembled the factual circumstancesof the present case. Apparently considering both incidents together, the trial court inferred that the defendant had a volatile temper and a propensity forviolence. The trial court had the right to consider the facts leading to the 1976 aggravated assault charges inMissoula. A trial courtmay consider the broad spectrum of incidents making up the background of an offender in determining the proper sentence. See, section 46-18-101,MCA. A defendant is entitled to have his sentencepredicated on substantially correct information. State

### v. Olsen (1980),

### -Mont. 

## -, 614P.2d 1061, 1064, 37 St.Rep. 1313; Statev. Knapp (19771, 174Mont. 373, 570 P.2d 1138, 1141. A sentencing court cannot rely upon a previous criminal record if that record contains constitutionally infirm convictions. Ryan v. Crist (1977),172Mont. 411, 563 P.2d 1145, 1146. The sentencing courthere relied neither on an erroneous criminal record nor an erroneous information. The trial courtwas not required to shut its eyes to the Missoula incident. It relied only on information volunteered by the defendant, and if the defendant believed that the presentence report distorted any of the informationhe had furnished, he was under an affirmative burden to refute, correct, or deny the facts related in the report. See, Statev. Radi (1979) 

## , - Mont. 

## , 604 P.2d 318, 320-21, 36 St.Rep. 2345. The defendant testified at the sentencinghearing,but did notchallenge the accuracy of the information in the presentence report. The defendant next argues that the disparity between the sentenceoffered in the letter the trial judge sent to defense counsel and the sentence the defendant actually received, shows that he was penalized for standing on his right to a jury trial. The federal constitution does not prohibit the granting of leniency to defendants who plead guilty. Corbitt v. New Jersey (1978),439 U.S. 212, 218-20, 224, 99 S.Ct. 492, 58 L.Ed.2d 466; Brady v. United States (1970), 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747. A policy of leniency following

a plea isproper, but its converse, "extra" severity following trial, isnot. See, e.g., United States v. ~raujo(2dCir. 60 I11.2d 102, 1976), 539 F.2d 287, 292; Peoplev. Sivels (1375),/324 N.E.2d 422, 424; United States v. Thompson (7thCir. 1973), 476 F.2d 1196, 1201, cert.den. 414 U.S. 918 (1973);United States

### v. Lehrnan (7thCir. 1972), 468 F.2d 93, 110. To punish a person for exercising a constitutional right is 

### a basic due process violation. In Re Lewallen (1979),23 Cal.3d 374, 590 P.2d 383, 386, 152Cal.Rptr. 52C; 3ordenkischcrv. Hayes (1978),434 U.S. 357, 363, 98 S.Ct. 663, 54 L.Ed.2d 604. Itmay be difficult to distinguishbetween situations where leniency is offered in exchange for a plea and situations where the defendant ispunished for exercising his right to trial by jury. In the absence of clear indications in the record to the contrary, a trial judge could justify any disparity between a sentenceoffered in exchange for a plea of guilty and the sentence actually imposed following a jury trial simplyby characterizing the sentence offered in the plea bargaining process as an offer of leniency--regardlessof the judge's truemotivations. If the dividing line between the permissible practice of granting leniency in exchange for a plea of guilty and the prohibited practice of imposing an increased sentence as punishment for the accused's refusal to plead guilty is to be real and not semantic, then the action for the sentencing court must be objectively reviewable. The discretion a sentencing court has in determining an appropriate sentence (Section 46-18-101,MCA), does notmean it can be arbitrary discretion. Itmust be

an informed discretion--informedby the application of an objective standard. The ABA Standards for Criminal Justice (2ded. 1980),

covers the question ofwhether a judge, in sentencing a defendant, improperly considered the defendant's failure or refusal to accept a plea bargain. The Standards declare that defendants who elect to stand trial should not be punished for the exercise of their constitutional right to trial. (Standard14-§ 1.8(b), Standards Relating to Pleas of Guilty.) It furtherprovides that a defendant who goes to trial should not be punished forputting the State to its proof, and the defendant should receive only that sentence which properly serves the deterrent,protective, and other objectives of the criminal justice system. In United States

### v. Stockwell (9thCir. 1973), 472 F.2d 1186, 1187, cert.den. 411U.S. 948, 93 S.Ct. 1924, 36 L.Ed.2d 409, the Ninth Circuit held that federal district courts must not use their sentencing power "asa carrot and stick to clear congested calendars, and that they must not create an appearance of such a practice." The Court expressly relied onABA Standard 14-9 l.8(f.1!, supra. The Court also held that:

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. . once it appears in the record that the court has taken a hand inplea bargaining, that a tentative sentence has been discussed, and that a harsher sentence has followed a breakdown in negotiations, the recordmust show that no improperweight was given the failure to plead guilty. In such a case, the recordmust affirmatively show that the court sentenced the defendant solely upon the facts of his case and his personal history, and not as punishment for his refusal to plead guilty." 472 F.2d at 1187-88. Because the record in that case left "unrebutted the inference drawn by thedefendant" that the trial judge punished him for standing trial, the Court remanded for resentencing. A mere disparity between the sentence offered during plea bargaining and that ultimately imposed is not, of itself, improper. In Re Lewallen, supra, 590 P.2d at 388; Peoplev. Dennis (1975),28 Ill.App.3d 74, 328N.E.2d 135, 138. But when that disparity is coupled by a clear indication in the record that the trial judge imposed a harsher sentence

as punishment fordefendant's rejection of a plea offer and for his choice of going to trial, appellate courts have either remanded for resentencing or reduced the defendant's sentence themselves. E.g., In Re Lewallen, supra;Gallucci

v. State (Fla-App.1979), 371 So.2d 148; State

### v. Boone

(1977),293 N.C. 702, 239 S.E.2d 459; Peoplev. Dennis, supra; United Statesv. Stockwell, supra; see generally,Annot. "Propriety of Sentencing Justice's Considerationof Defendant's Failure or Refusal toAccept Plea Bargain," 100A.L.R.3d 834

(1980). Further, an allegation that the sentence imposed

was intended as punishment for defendant's jury demand need not be shown solely by the overt comments of the sentencing judge--itmay also be shownby inference. See, - Gallucci, supra; Peoplev. Dennis, supra, 328 N.E.2d at 137; Stockwell, supra. In Stockwell, and in Gallucci, the reviewing courts doubted that the trial judge actuallypunished the defendantfor standing trial,but still deemed it advisable to vacate the defendant's sentence and remand for resentencing because of the uncertainty of that doubt. To protect a criminal defendant's constitutional rights in plea bargaining situations and to help preserve public confidence in the judicial process,we today adoptABA Standard 14-S 1.8(b). To implement that standard, and to facilitate judicial review, a sentencing court which becomes involved in the plea bargaining process, and which imposes a harsher sentence after trial than was offered in exchange for a guilty plea, must specificallypoint out the factors that justify the increased sentence. In this case,we cannot tell from the record why the trial court offered a very lenient sentence (45days jail time) in exchange for a plea of guilty. Nor canwe tell why the court found impositionof a harsher sentence appropriate after jury trial (10 years jail time). We have

no assurance that the trial court did not increase the sentence in retaliation for defendant's insistence on a trial by jury. The defendant's sentence isvacated and the cause is remanded forresentencing in a manner consistent with this opinion.

ice

We Concur:



### [_.,.,-*Sus tices -8-