### No. 82-111 INTHE SUPREMECOURTOF THE STATEOF MONTANA 1982

STATEOF PIIONTANA, Plaintiffand Respondent,

vs

# . RONALD MARVINTRANGSRUD, DefendantandAppellant.

Appeal from: District Courtof the Fifteenth Judicial District Inand for the County of Daniels HonorableLeonard 

### H. Langen,Judgepresiding. Counsel of Record: ForAppellant: Allen Beck, Billings,Montana ForRespondent: HonorableMike Greelv,Attorney General, Helena,Montana 

### M. J. Traynor,CountyAttorney, Scobey,Montana

Submittedonbriefs: August 12,1982 Decided.:September 22, 1982

N t. 

### ClerkMr. Justice John Conway Harrison delivered the Opinion of the Court. Defendant/appellant was convicted of aggravated assauIt, a felony, on January 20, 1982, in the FifteenthJudicial District of the State of Montana, Daniels County, Montana. On February 18, 1982, the court sentenced defendant to ten years in the Montana State Prison for the aggravated assault and ten years, with the last eight years suspended, under the enhancement statute. The trial court ordered that the 

### terms run consecutively. Defendant appeals from this sentence. Defendant was involved in a disturbance ata bar in Scobey, Montana, on October 23, 1981. While playing pool in M-J's Bar with his fiancee and a group of friends, defendant began arguing with Trygve Magelssen and a group of seismographers. After exchanging several vulgar comments the two groups moved their discussion outside the bar. From there each witness has a differentexplanation of what occurred next. The gistof the testimony is that after the 

### two groups had gone outside, defendant walked across the 

### street and obtained a Smith and Wesson, Model 59, from hispickup truck. Defendant then returned to the crowd with the gun exposed. Magelssen, defendant's fiancee and defendant

### 's companions continued to exchange words on the street. After one particularly suggestive exchange between Magelssen and defendant's financee, defendent fired one shot into the air. Defendant testified he then uncocked the pistol and placed it into his pocket. Magelssen and others testified defendant continued to point the gun at Magelssen's head and upper body. Finally, Magelssen broke away from the crowd and walked to his motel, where he stopped an approaching police car and related the detailsof the incident to thepolice officer. Defendant's group returned to the bar and defendant left shortly thereafter. After a jury 

### trial on January 20, 1982, defendant 

### was found guilty of aggravated assault. The trial court set February 18

## , 1982, as the date for sentencing and ordered a presentence investigation. At approximately 8:30 a.m. on February 18, 1982,the court provided a copy of the presentence investigation to counsel for the defense. The sentencing hearing began at9:18

a.m. The presentence investigation contained a number of statements by witnesses whose names 

### were ordered withheld from the defendant by the court. The information included statements 

### to the effectthat: 1. The Scobey community is apprehensive of defendant and have voiced theirconcern. 2. The defendant threatened a bar owner in Scobey in the

summer of 1980. 3. The defendant threatened one of the witnesses after the trial. 4. The defendant physically abused his former wife and daughter. 5. The defendant was in possession of a concealed weapon during the last court session because the sheriff had failed 

### to searchhim. 6. The defendant threatened a Scobey PoliceOfficer and his family. Defendant objected to the court's consideration of these statements and further objected to the admission of a police report relating 

### to an incidenton October 17

## , 1974, where defendant pled guilty 

### to misdemeanor assault. The court overruled defendant's objections and after allowing defendant to testify, entered judgment and sentenced defendant 

### to ten years in prison for aggravated assault and ten years, with the lasteightsyears suspended, under section 46-18-221(1), MCA, the enhancement statute. Defendant appeals. The issue presented for review is whether the DistrictCourt erred by making findings of fact and conclusions of law and imposing sentence on the basis of private out-of-court in£

### ormation gathered by the presentence investigation officer where the defendanthad no opportunity tocross-examine the persons who supplied the in£ ormation.Defendant argues the District Court erred by withholding some of the names of witnesses who supplied information to the presentence investigation officer. Defendant 

### claims he has the right to con£ront and cross-examine allwitnesses who provide negative in£ ormation tothe sentencingjudge. Wedisagree.

Defendant cites a number of cases and statutes which have since been overturned orrepealed. The cases of State v. Harney (1972), 160 Mont. 55, 499 P.2d 802; State v. Sintob (1969), 154 Mont. 286, 462 P.2d 873; and Kuhl v. District Court of the First Judicial District (1961), 139 Mont. 536, 366 P.2d 347, all held

a defendant has a right to a sentencing hearing in open court. These caseswere decided under section94-7814 R.C.M. 1947, which stated circumstances in aggravation or mitigation of sentence 

# ".

.

# . must be presented by testimony of witnesses examined in open court

# . .." However, this section

### was repealed by section 95-2205, R.C.M. 1947, now codified as section 46-18-113, MCA, which states: "Availability

--- of report to defendant and -- -- - --- -- others. .--- (1) The judyg may, in his discretion

## , make the investigation report

### --07 partsofit available to the defendants or others, while concealing the identity of persons who provided con£idential in£ ormation. If the court discloses the identity of persons who provided in£ ormation, the judge may, in his discretion, 

### allow the defendant to cross-examine those who rendered in£ ormation



# .

# .." (Emphasis supplied.) Thus, the rightof cross-examination at apresentence hearing is a discretionary matter of the trial court and will not be overruled without a showing of abuse of that discretion. In State v. Orsborn (1976), 170Mont. 480, 555 P.2d 509, 

### we stated: "Such a change of policy is reflective of the trend towards distinguishing evidential procedure at trial from that at the sentencing stage. The United States Supreme Court in Williamsv. New York 

## , 337 U.S. 241, 247, 69 - S.Ct. 107% 1m3,-T~.~d. 1337, 1342, stated:

'I'

# . . . a sentencing judge, however, 

### is not confined 

### to the narrow issue of guilt. His task within fixed limits is to determine the type and extent of punishment after the issue of guilthas been determined. Highly relevant 

### - if not essential 

### - to his selection of an appropriate sentence is the possession of thefullest information possible concerning the defendant's life and characteristics. And -- modern concepts individualizing punishment

-------

.-- -- -- -- .- .-- have made it all the 

### more necessary that a -- -- --- -- -- -- - sentencinq iudqe notbe denied an o~~ortunitv
-a a

. -- -- - -- -- -- -- to obtain pertinent information by

# a-require-

-- -- - -. - . -- -- -- - ment - of rigid -- adherence to restrictive rules of evidence property applicable to the trial

-- - -- --- --


# .

# . .I (Emphasis supplied.) "However, this does not mean that the spirit of Kuhl - is dead. A convicted defendant still has a due process guarantee against a sentence predicated on misinformation

# ." 170 Mont

# . at 485, 555 P.2d at512. In Orsborn we found the defendant's guarantee of due process --- was protected because the defendant was represented by counsel at the time the sentencing information was made known to him, the defendant had the opportunity to rebut the information and the defendant chose to affirm the accuracy of the information. Here the defendant did have counsel present and had the opportunity to rebut the information although he chose to deny the accuracy of the information. Thus, we find defendant's guaranty of due process was protected. It is a general rule throughout this country that when 

### matters contained in a presentence report are contested by the defendant, the defendant has an affirmative duty to present evidence showing the inaccuracies contained inthe report. Statev. Radi (1979), Mont

# . -

## , 604 P.2d 318, 36 St.Rep. 2345. Here the District Court did allow defendant to take the stand and reply to the statements contained in the presentence investigation report. If defendant felt there was not enough time to acquire witnesses to adequately rebut the in£ormation contained in the report he should have requested a continuance from the court. However, the record shows no such continuance was requested. This Court will not review a matter raised for the firsttimeon appeal. Peters v. Newkirk (1981), Mont

# . I -- - 633 P.2d 1210, 38 St.Rep. 1526. That defendant did not have timeto prepare torebut the presentence investigation report

### was something which should have been put to the trial court and defendant's failure todo so prevents any ruling by thisCourt toremedy the situation. Judgment and sentence of the District Court is affirmed.

Weconcur:Mr. JusticeDaniel J. Shea dissenting.

I dissent. A defendant is asmuch entitled to due process in sentencing

ashe is attrial, and he has been denied that due process here. Here, defendant, as majority states, denied the accuracy of the information which found its way into the presentence investigation report. But, the fact that he denied the information does not demonstrate that he was given due process. He could only have been given due process by a process which gave him opportunity to test the accuracy of the information given. If the District Court relied in any way on this information in imposing the sentence, defendant has been prejudiced

# . That prejudice can only be cured by giving him an opportunity 

### to directlyconfront those whose names 

### were secreted from defendant by the trial court. Where names are not disclosed inapresentence investigation report, and the trial court does not give the defendant an opportunity torebut allthe evidence disclosed, a presumption of the prejudice arises which can only be cured by another sentencing 

### hearing------wfih- adequat-e procedural s a f e guads

# . I dissent for yet another reason

## -- a ground not raised by defendant. Defendant has been subjected to double jeopardy by the imposition of the aggravated assault "with aweapon" sentence and the further imposition of a sentence for use of a firearm or dangerous instrument in committing a 

### crime. In effect

## ,defendant has been twice punished for the same act

## -- the use of a weapon. Defendant 

### was charged under section 45-5-202 (1) (c) of the aggravated assault statute which states: "A person commits the offense of aggravated assault if he purposely 

### or knowingly

causes: (c)reasonable apprehension of seriousbodily inj ury in anotherby use of a weapon

# . .." Use of aweapon is the essence ---- --- of this section

## -- if no weapon was used there can be no aggravated assault. Instead, the charge would be a misdemeanor. The misdemeanor assault statute, section 45-5-201(1) (d)provides: A person commits the offense of assault if he: (d)purposely orknowingly causes reasonable apprehension of bodily inj ury in another 

# . .." It 

### is clear, therefore, that the act to be punished, because of 

### its potential for harm, is the use of a weapon. Here the trial court punished the defendant for the use of the weapon by sentencing him 

### to ten years in prison. But the trial court then invoked another statuteand gave the defendant a second ten-year sentence to run consecutively to the firstten-year sentence. Eight years of the second sentence

### were suspended, which resulted in a twelve-year prison sentence. Section46-18-221(1) provides: "A person who has been found guilty of any offense and who, while engaged in the commissionof theoffense,knowinglydisplayed, brandished, or otherwise used a firearm, destructivedevice, 

### as defined in45-8-332(1), orother dangerous weapon, shall, inaddition to thepunishment provided forthecommission -- - 

### ----- of such offense, be sentenced 

### to a 

### term of 7-- imprisonment 

### --- in the 

### state prisoii-of- 

### --- notless than 

### two years 

### or more than ten years

# . .."

-- 

### --- ----

(~mphaxs added)- In filing the charges the 

### state put the defendant on notice that it would invoke section 46-18-221 inthe event of a conviction. The information alleged in part: "The maximum sentence forsaidoffense 

### is twenty (20)yearsplus an additional sentence of two years minimum and not 

### to exceed ten years maximum foruse of 

### a firearm." ~efendantk counsel, however, after defendant's conviction, raised no issue with respect 

### to imposition of an additional sentence for use of a firearm 

### or other dangerous instrument. The effect 

### is that defendant has been sentenced under the aggravated assault statuteforuse of a firearm, and he has again been punished under section46-18-221(1), MCA, for use of a firearm. That

## -- isdoublejeopardy. The jury could not have convicted defendant of aggravated assault unless it found that he had used a weapon (a firearm here) 

### to place the victim in reasonable apprehension of serious bodily injury. Conviction of that charge 

### came about because defendant used a weapon. The 

### trial court sentenced defendant 

### to tenyearsbecause he used aweapon. I fail

### to 

### see, however, thatthe court could impose a penalty on top of this penalty 

### -- for

use of a weapon. The undeniable fact is that if defendant had not used a weapon (a firearm here) he could not have been convicted of aggravated assault. Defendant has been subjected to a double penalty for the 

### same act

## -- pointing a weapon (afirearm) at another. This double penalty for the 

### same act, violates the double jeopardy provisions of the United States and Montana Constitutions. I would strike the additonal penalty imposed under section 46-18-221. The additional penalty, as applied to the facts of this

### case, is unconstitutional.