No. 80-217 

IN THE 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 Sixth Judicial 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: m 

Y Clerk 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

Defendant appeals the sentence imposed by the Sweet 

Grass County District Court following his conviction of 

aggravated assault. A jury trial was held on March 10, 

1980. The court sentenced defendant on March 17, 1980, 

to fifteen years imprisonment with five years suspended. 

He raises two issues challenging the legality of his sentence. 

First, defendant contends that the trial court erred 

in considering for sentencing purposes, the facts underlying 

a prior charge of aggravated assault of which defendant was 

acquitted. Second, defendant asserts that he received an 

increased sentence because he chose to exercise his constitutional right to a jury trial instead of agreeing to 

plead guilty. We hold against the defendant on the first 

issue. Because we cannot determine fron the record whether 

defendant was punished for exercising his right to a trial 

by jury, we vacate the sentence and remand for resentencing. 

On November 26, 1979, defendant met some casual 

acquaintances in a bar in Big Timber. The defendant agreed 

to accompany four of the acquaintances to Room 10 at the 

Sweetgrass Motel to view and possibly purchase some drugs. He 

went to the motel in his pickup, accompanied by Michael and 

Elton Tronrud. The Tronrud brothers remained in the defendant's 

pickup while the defendant went into the motel room. 

While in the motel room, a fight occurred in which the 

defendant suffered various minor 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 curtained motel 
window. Fragments from the bullet and broken glass struck 

one of the occupants, causing minor injuries. 

Defendant was charged by information with aggravated 

assault on December 3, 1979. On December 13, 1979, a preliminary presentence investigation was 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 ". . . upon a plea 

of guilty the minimum sentence that I would give Mr. Baldwin 

would be a 5 year sentence with 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 can possibly be in 

the case, and that if he does not want to enter a plea on 

these conditions why should we 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 investigation prepared. 

At the sentencing hearing, defense counsel objected to 

the references that both presentence reports made to defendant's 

acquittal on aggravated assault charges in Missoula in 1976. 

The first presentence report merely 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 defendant who 

voluntarily supplied the probation 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 

it would consider the fact that defendant was 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 court believed that the 

Missoula incident resembled the factual circumstances of 

the present case. Apparently considering both incidents 

together, the trial court inferred that the defendant had a 

volatile temper and a propensity for violence. 

The trial court had the right to consider the facts 

leading to the 1976 aggravated assault charges in Missoula. A 

trial court may 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 sentence predicated on substantially 

correct information. State v. Olsen (1980), - Mont. -, 

614 P.2d 1061, 1064, 37 St.Rep. 1313; State v. Knapp (19771, 

174 Mont. 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), 172 Mont. 411, 563 P.2d 1145, 1146. The 

sentencing court here relied neither on an erroneous criminal 

record nor an erroneous information. The trial court was 

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 information he had furnished, he was 

under an affirmative burden to refute, correct, or deny the 

facts related in the report. See, State v. Radi (1979) , - 

Mont. , 604 P.2d 318, 320-21, 36 St.Rep. 2345. The 

defendant testified at the sentencing hearing, but did not 
challenge the accuracy of the information in the presentence 

report. 

The defendant next argues that the disparity between 

the sentence offered 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 is proper, but its converse, "extra" severity following 

trial, is not. See, e.g., United States v. ~raujo (2d Cir. 

60 I11.2d 102, 

1976), 539 F.2d 287, 292; People v. Sivels (1375), /324 

N.E.2d 422, 424; United States v. Thompson (7th Cir. 1973), 

476 F.2d 1196, 1201, cert.den. 414 U.S. 918 (1973); United 

States v. Lehrnan (7th Cir. 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, 152 Cal.Rptr. 52C; 3ordenkischcr v. 

Hayes (1978), 434 U.S. 357, 363, 98 S.Ct. 663, 54 L.Ed.2d 604. 

It may be difficult to distinguish between situations 

where leniency is offered in exchange for a plea and situations 

where the defendant is punished 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 sentence offered in exchange for a plea 

of guilty and the sentence actually imposed following a jury 

trial simply by characterizing the sentence offered in the 

plea bargaining process as an offer of leniency--regardless 
of the judge's true motivations. 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 not mean it can be arbitrary discretion. It must be 

an informed discretion--informed by the application of an 

objective standard. 

The ABA Standards for Criminal Justice (2d ed. 1980), 

covers the question of whether 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. (Standard 14-§ 1.8(b), Standards Relating to Pleas 

of Guilty.) It further provides that a defendant who goes 

to trial should not be punished for putting 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 (9th Cir. 1973), 472 

F.2d 1186, 1187, cert.den. 411 U.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 "as a carrot and 

stick to clear congested calendars, and that they must not 

create an appearance of such a practice." 

The Court expressly relied on ABA Standard 14-9 l.8(f.1!, 

supra. The Court also held that: 
". . . once it appears in the record that 

the court has taken a hand in plea 

bargaining, that a tentative sentence has 

been discussed, and that a harsher sentence 

has followed a breakdown in negotiations, the 

record must show that no improper weight was 

given the failure to plead guilty. In such 

a case, the record must 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 the defendant" 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; 

People v. Dennis (1975), 28 Ill.App.3d 74, 328 N.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 for defendant'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; People v. Dennis, supra; 

United States v. Stockwell, supra; see generally, Annot. 

"Propriety of Sentencing Justice's Consideration of Defendant's 

Failure or Refusal to Accept Plea Bargain," 100 A.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--it may also be shown by inference. See, - Gallucci, 

supra; People v. Dennis, supra, 328 N.E.2d at 137; Stockwell, 

supra. In Stockwell, and in Gallucci, the reviewing courts 

doubted that the trial judge actually punished the defendant 
for 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 adopt ABA 

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 specifically point 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 (45 days jail 

time) in exchange for a plea of guilty. Nor can we tell 

why the court found imposition of 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 is vacated and the cause is 

remanded for resentencing in a manner consistent with this 

opinion. 

ice 

We Concur: 

[_.,. ,-*Sus tices 

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