96-559

 No. 96-559

 IN THE SUPREME COURT OF THE STATE OF MONTANA

 

 1997

STATE OF MONTANA,

 Plaintiff and Respondent,

 v.

DANIEL BARNHART,

 Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,

 In and for the County of Cascade,

 The Honorable Robert P. Goff, Judge presiding.

COUNSEL OF RECORD:

 For Appellant:

 Jeffrey T. Renz and Matt Putzier, Jr., Montana Defender

 Project, University of Montana School of Law, Missoula,

 Montana

 For Respondent: 

 Hon. Joseph P. Mazurek, Attorney General

 Elizabeth Griffing, Ass't Attorney General, Helena, Montana

 Brant Light, Cascade County Attorney, Great Falls, Montana

 Submitted on Briefs: June 12, 1997

 Decided: July 23, 1997

Filed:

 __________________________________________

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-559%20Opinion.htm (1 of 4)4/16/2007 11:37:54 AM
96-559

 Clerk

 Justice W. William Leaphart delivered the Opinion of the Court.

 Daniel Barnhart (Barnhart), appeals from the Eighth Judicial District Courtþs 

order 

sentencing him to twenty years in the Montana State Prison. We reverse and remand 

for

resentencing.

 The following issue is raised on appeal:

 May a sentencing court bypass the sexual offender evaluation requirement

 of 46-18-111(1), MCA, based upon an assumption that the defendant will

 not cooperate in the evaluation or will not benefit from treatment?

 

 In August of 1995, Barnhart was charged with sexual assault, a felony, in 

violation

of 45-5-502(1), and 45-5-502(3), MCA. Barnhart pled guilty to the charge and the

District Court ordered a sexual offender evaluation to be completed. Barnhart 

attended

the first of three evaluation sessions scheduled with Dr. Ron Silvers. Prior to his 

second

scheduled session, Barnhart filed a motion to withdraw his guilty plea based on his 

belief

that the prosecutor had coerced him into pleading guilty by threatening to seek a

persistent felony offender designation if he pled not guilty. Barnhart then 

declined to

further cooperate in the sexual offender evaluation sessions pending a hearing on his

motion to withdraw his plea of guilty.

 The District Court denied Barnhartþs motion to withdraw his guilty plea and,

despite the fact that an evaluation had not been completed, a sentencing date was

scheduled. At sentencing, Barnhart objected to the District Courtþs decision to 

impose

sentence without the benefit of a sexual offender evaluation and a recommendation for

treatment. The District Court overruled Barnhartþs objections and imposed a twentyyear

sentence. Barnhart appeals this twenty-year sentence.

 In State v. Alexander (1994), 265 Mont. 192, 875 P.2d 345, we held that a 

district

courtþs consideration of a completed presentence report prior to sentencing is not

discretionary. Alexander, 875 P.2d at 352. Under 46-18-111(1), MCA, a defendant 

convicted of violating 45-5-502, MCA, where the victim is under 16 years of age, 

must

be evaluated and a recommendation as to treatment must be included in the defendantþs

presentence investigation. Specifically, 46-18-111(1), MCA, provides:

 (1) Upon the acceptance of a plea or upon a verdict or finding of guilty to

 one or more felony offenses, the district court shall direct the probation

 officer to make a presentence investigation and report. The district court

 shall consider the presentence investigation report prior to sentencing. If the

 defendant was convicted of an offense under 45-5-502, 45-5-503, 45-5-504,

 45-5-505, 45-5-507, or 45-5-625 involving a victim who was less than 16

 years of age when the offense was committed, the investigation must

 include an evaluation of the defendant and a recommendation as to

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-559%20Opinion.htm (2 of 4)4/16/2007 11:37:54 AM
96-559

 treatment of the offender in the least restrictive environment, considering

 community safety and offender needs. The evaluation must be completed

 by a person who is determined to be qualified under guidelines established

 by the department of corrections. All costs related to the evaluation must

 be paid by the defendant. If the defendant is determined by the district

 court to be indigent, all costs related to the evaluation are the responsibility

 of the district court and must be paid by the county or the state, or both,

 under Title 3, chapter 5, part 9.

 Here, as in Alexander, the defendant was convicted of sexual assault of a victim

under 16 years of age. In Alexander, this Court explained that the legislature 

amended

subsection (1) of 46-18-111, MCA, so as to mandate an evaluation and a

recommendation as to treatment in the least restrictive environment in light of 

community

safety and offender needs. Alexander, 875 P.2d at 351. In addition, we explained 

that

the wording of the 1991 statute expressly requires that a district court þshall 

direct the

probation officer to make a presentence evaluation and reportþ and that the 

þinvestigation

must include an evaluation of the defendant and a recommendation as to treatment by a

qualified person . . . .þ Alexander, 875 P.2d at 351.

 In the instant case, the District Court sentenced Barnhart before it had the 

benefit

of Dr. Silversþ evaluation. The State contends that an evaluation would have made no

difference because Barnhart, with his history of prior sex offenses, would not have

qualified for community treatment in any event. In stating, þI donþt know if there 

is hope

for [Barnhart] in treatment,þ the District Judge apparently shared this sentiment.

 Although Barnhart refused to participate in scheduled evaluations, his refusal 

was

based on the pendency of his motion to change his plea. Barnhartþs desire to avoid

making any statements or admissions prior to a ruling on his motion to withdraw his 

plea

should not have been construed either as a ploy to forestall sentencing or as a lack 

of

amenability to future treatment. The statute mandates an evaluation. There is no 

leeway

for the court to make any assumptions as to whether the defendant will cooperate in 

an

evaluation or whether he will be amenable to treatment. 

 Section 46-18-111(1), MCA, is clear on its face. Before a defendant convicted 

of

violating 45-5-502, MCA, may be sentenced, the district court must order and 

consider 

an evaluation of the defendant and a recommendation as to treatment. The District

Courtþs decision to sentence Barnhart without the benefit of the requisite evaluation

constitutes reversible error. Accordingly, we reverse the sentence and remand to the

District Court for resentencing consistent with the requirements set forth under 

46-18-

111(1), MCA.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-559%20Opinion.htm (3 of 4)4/16/2007 11:37:54 AM
96-559

 /S/ W. WILLIAM LEAPHART

We concur:

/S/ WILLIAM E. HUNT, SR.

/S/ JAMES C. NELSON

/S/ JIM REGNIER 

/S/ KARLA M. GRAY

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-559%20Opinion.htm (4 of 4)4/16/2007 11:37:54 AM