NO. 81-411 IN THE SUPREME COURT OF THE STATE OF MONTANA 1982

STATE OF MONTANA, Plaintiff and Respondent,

VS. JESSE D. STEPHENS, Defendant and Appellant.

Appeal from: District Court of the Fourth Judicial District, In and for the County 

### of Missoula Honorable DouglasHarkin, Judgepresiding. Counsel of Record: For Appellant: Hirst, Dostal & Withrow, Missoula,Montana For Respondent: Hon. Mike Greely,Attorney General,Helena, Montana Robert 

### L. Deschamps 111, County Attorney, Missoula,

Montana

Submitted on briefs: March 5, 1982 Decided: yr

### -.,

## 3 

# 1982 Filed:iklpnl

### Mr. Justice Fred J. 

### Weber delivered the Opinion of the Court.

Defendant Jesse D. Stephans (Stephans)appeals from a conviction of robbery following a trial before a jury in the FourthJudicial District,Missoula County. He presents the following issues for review: (1) Whether the testimony of Forrest Bex (Bex)should have been allowed in evidence over the objection as to his competency as a witness. (2) Whether the sentence imposed, which is twice as long as that recommended by the presentence report, is valid. We affirm. On the evening of February 2, 

### 1980,Carla E. 

### Rasmussen (Rasmussen)was the only clerk in 

### a Circle K 

### store in East Missoula,Montana. About 9:45 P.M. twomen came into the store

### -- one red-head and the other partially bald. They bought a dollar's worth of gas and a cold pack of beer, then left. A fewminutes later the partially bald man returned. His hand was in his pocket pointed like a gun and he asked forher money. Rasmussenbelieved that he had a gun and was very frightened. Sheplaced the bills fromboth tills into

a bag and gave thebag to theman. He then made her lie down flaton the floor. After a fewminutes,Rasmussen called the police and gave them a statement, including a description of themen. From a photograph lineup, shepicked out Bex as the redhead and Stephans as thepartially bald man. I. 

### Whether the testimony of Bex should have been allowed in evidence over the objection as to his competency as a witness.

### During the trial theprosecution called Bex to testify. The defense attorney requested an examination of the witness regarding his competency to testify. An in camera examination

was held where both attorneys questioned Bex in the presence of the judge. During the examination, itwas revealed that in 1974 Bex had been charged with arson which resulted in his being evaluated atWarm Springs State Hospital. Bex did not stand trial as the District Court found him unfit at that time to proceed because he was unable to assist in his

own defense and to understand theproceedings against him. The judge in thepresent casehad before him the 1976 evaluations which provided, in part: "2. 

### The following diagnoseswere given to him: "A. 

### Adjustment reaction of adolescence "B. Inadequatepersonality "C. Episodic excessive drinking "D. Borderline mental retardation "E. Non-psychotic OBS with other physical condition [organic brain syndrome] "3. 

### Themedical staff of the hospital found thatMr. Bex is suffering from a mental disease or defect and in our opinion,his capacity to understand the proceedings againsthim and to assist in his own defense is impaired. "4. It is also the opinion of the medical staff of the hospital thatMr. Bex's ability to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law at the time of the criminal conduct charged was impaired." TheWarm Springs State Hospital evaluationswent on to conclude: "Mr. Bex seems ready to be returned to your custody for disposition and we recommend that he have some amount of supervision,and followup psychiatric care, if allowed to live in the community again. He seemsvery much improved; has accepted rules and regulationswell,withoutdifficulties."During the in camera examination held in the present case, Bex testified as to his past and to his ability and intention to tell the truth. At the end of the examination, the judge found that the witness was "capableof expressing himself concerning the matter so as to be understood by the judge and jury" and that he was "capableof understanding the duty of the witness to tell the truth under Rule 601." When the trial resumed, the judge instructed the jury,prior to the direct examination of Bex, as follows: "The law requires that 

### I determinewhether or not a witness is capable of expressing himself so as to be understood by the judge and the jury. I have determined that this witness is capable of expressing himself in such a manner. "Italso requires that 

### I determine whether or not he is capable of understanding his duty as a witness to tell the truth. I find that he is capable of making that understanding. "Theweight to be given his testimony is solely within the discretion of the jury." Bex then testified before the jury. TheMontana Rules of Evidence, Rule 601, states: "(a) General rule competency. Every person is competent to be a witness except as otherwise provided in these rules. "(b) Disqualificationof witnesses. A person is disqualified to be a witness if the court finds that (1)thewitness is incapable of expressing himself concerning thematter so as to be understood by the judge and jury either directly or through interpretationby one who can understand him or (2) the witness is incapable of understanding the duty of a witness to tell the truth." The rules of evidence were enacted on July 1, 1977. Prior to that the Montana statuteprovided that those of unsound mind could not be witnesses. Section 93-701-3(1), R.C.M. 1947. Even with that statute this Court held that "thereis no presumption that a witness is incompetent and the burden is on the party asserting incompetency to proveit." State 

### v. Coleman (1978), 177Mont. 1, 27, 579 P.2d 732, 748. The enacting of the rules in 1977did not create any presumptions. The defendant is required to prove incompetency and it is the function of the trial judge to determine the competency of the witness to testify. Coleman, 177Mont. at 27, 579 P.2d at 748. The Defendantdid not submit any additional evidence of incompetency beyond the 1975 and 1976 Warm Springs State Hospital evaluations. While these reports show 1976 diagnoses of mental disorders, the reports also indicate that he was very much improved. In and of themselves, these reports are not sufficient to require a conclusion that the witness was incompetent, incapable of expressing himself concerning thematter, or incapable of understanding the duty to tell the truth. After considering such reports and after watching Bex answer questions, the District Court concluded that Bex was capable of expressing himself in amanner so as to be understood and was capable of understanding the duty of a witness to tell the truth. The record discloses facts upon which the District Court could properly reach such a conclusion. "It iswithin the discretion of the trial judge to determine competency and his findings will not be overturned absent an abuse of discretion." Statev. Camitsch (1981), Mont. 

### , 626 P.2d 1250, 1256, 38 St.Rep. 563, 569; State

### v. Shambo (1958), 133 Mont. 305, 309, 322 P.2d 657, 659. We find no abuse of discretion in allowing the testimony of Bex. 11. Whether the sentence imposed, which is twice as long as that recommended by the presentence report, is valid.

### The sentence hearing was held April 30, 1981. At that time, the courthad before it a presentence reportprepared by the Departmentof Institutions,which recommended that Stephansbe sentenced to fifteenyears at the Montana State Prison and designated a dangerous offender forparole purposes. The trial judge sentenced Stephans to thirty years at Montana StatePrison and designated him as a dangerous offender for parole purposes. Upon imposing the sentence,the judge gave reasons for the sentence: "Ialso find that although the amount taken by the Defendant in the robbery was only about twenty-eightdollars, the Defendant caused the store clerk to be extremely terrified and fearful for her life. The Defendant continues to show no remorse for his actions and belittles the seriousness of his crime and its effectupon the victim.

"Thecourt concludes that the imprisonment of the Defendantwill serve to protect the public fromany additional crimesbeing convicted [sic]by the Defendant. Imprisonment of the Defendant should be of sufficient length to act as a sufficient deterrent of the Defendantnot to commit an additional crime. Rehabilitation of the Defendant while on probation has no chance of success. The Defendantpresents a danger to the public and shouldbe designated as a dangerous offender for thepurpose of parole eligibility." (Transcript of April 30, 

### 1981at 20-21.) The judge's findings of factand conclusions of law contained

a detailed basis for the sentence, including that Stephans had previous convictions of three felonies, threemisdemeanors, and threeparole violations,and show that the judgewas aware of the contentsof the presentence report. When asked by the defendant's attorney to state reasonswhy the presentence report's recommendation of fifteenyears was not followed, the judge replied:for "Ihad an opportunity to observe this Defendant during the entire trial. I heard his testimony in court. 

### Iwatched him during the trial. 

### I continued to observe him today. By his own admissions,he does not acknowledge the seriousnessof the offense. He continued to think that he should be allowed another chance. He has had chance after chance after chance. 

### I do notwant him in this community because he poses a danger to the people of this district,and Iwill not allow him to remain here." (Tr. of April 30 at 21-22.) The defendant has the right to have his sentence reviewed equity

### , disparity, or considerations of justiceby the Sentence Review Board. He has the right to appeal his sentence to the Montana Supreme Court to determine its legality. State ex rel. Greely v. DistrictCourt of the Fourth Judicial District (1979), 180Mont. 317, 327, 590 P.2d 1104, 1110. Stephans contends that although the judge gave reasons for his sentence,he did not explain its disparity with the recommendation in the presentence report, and therefore, the sentence is not legal. Section 46-18-111,MCA, provides that in the event the court requests a presentence report, the report is to be considered by the court. The section reads: "Presentence investigation. No defendant convicted of a crimewhich may result in commitment for 1 year ormore in the state prison shallbe sentenced or otherwise disposed of before a written report of investigationby a probation officer is presented to and considered by the court unless the court deems such reportunnecessary. The courtmay, in its discretion, order a presentence investigation for a defendant convicted of any lesser crime or offense." There is no requirement that the sentencing judge adopt the recommendationof the presentence report or that he state reasons for any discrepancy between the recommended sentence and the one actually imposed. The sentencing judgemust only specify reasonswhy the sentencewas imposed. Statev.Stumpf (1980), Mont. 

### , 609 P.2d 298, 37 St.Rep. 673; Cavanaugh v. Crist (1980), Mont. 

## , 615 P.2d 890, 37 St.Rep. 1461. The District Court met this requirement.There is no basis for the sentence to be considered illegal. The District Court's judgment is affirmed.

We Concur:

Chief Justice