No. 82-111 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

STATE OF PIIONTANA, 

Plaintiff and Respondent, 

vs . 

RONALD MARVIN TRANGSRUD, 

Defendant and Appellant. 

Appeal from: District Court of the Fifteenth Judicial District 

In and for the County of Daniels 

Honorable Leonard H. Langen, Judge presiding. 

Counsel of Record: 

For Appellant: 

Allen Beck, Billings, Montana 

For Respondent: 

Honorable Mike Greelv, Attorney General, Helena, Montana 

M. J. Traynor, County Attorney, Scobey, Montana 

Submitted on briefs: August 12, 1982 

Decided.: September 22, 1982 

N 

t. Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Def endant/appellant was convicted of aggravated assau It, a 

felony, on January 20, 1982, in the Fifteenth Judicial 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 at a 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 different explanation of what occurred next. The gist of 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 his pickup 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 

details of the incident to the police 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 at 9: 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 effect that: 

1. The Scobey community is apprehensive of defendant and 

have voiced their concern. 

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 

search him. 

6. The defendant threatened a Scobey Police Officer 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 incident on 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 last eights years 

suspended, under section 46-18-221(1), MCA, the enhancement 

statute. Defendant appeals. 

The issue presented for review is whether the District Court 

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 defendant had no opportunity to cross-examine the persons who 

supplied the in£ ormat ion. 
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 all witnesses who provide negative 

in£ ormation to the sentencing judge. We disagree. 

Defendant cites a number of cases and statutes which have 

since been overturned or repealed. 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 cases were decided under section 94-7814 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£ ormat ion. 

If the court discloses the identity of persons who provided in£ ormat ion, the judge may, 

in his discretion, allow the defendant to 

cross-examine those who rendered in£ ormat ion 

. . ." (Emphasis supplied.) 

Thus, the right of cross-examination at a presentence 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), 170 Mont. 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 

- 

Williams v. 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 guilt has been determined. Highly relevant 

- if not essential - to his selection of an 

appropriate sentence is the possession of the 
fullest 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 not be 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 at 512. 

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 in the report. State v. 

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£ ormat ion 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 

first time on appeal. Peters v. Newkirk (1981), Mont . I -- - 

633 P.2d 1210, 38 St.Rep. 1526. That defendant did not have 

time to prepare to rebut the presentence investigation report was 

something which should have been put to the trial court and 

defendant's failure to do so prevents any ruling by this Court to 
remedy the situation. 

Judgment and sentence of the District Court is affirmed. 

We concur: 
Mr. Justice Daniel J. Shea dissenting. 

I dissent. 

A defendant is as much entitled to due process in sentencing 

as he is at trial, 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 directly confront 

those whose names were secreted from defendant by the trial 

court. Where names are not disclosed in a presentence investigation report, and the trial court does not give the defendant an 

opportunity to rebut all the evidence disclosed, a presumption of 

the prejudice arises which can only be cured by another sentencing hearing------wfih- adeq ua t-e proced ural s a f e g uad s . 

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 a weapon" 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 serious bodily inj ury in 

another by use of a weapon . . ." Use of a weapon 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 or 
knowingly 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 statute and gave the 

defendant a second ten-year sentence to run consecutively to the 

first ten-year sentence. Eight years of the second sentence were 

suspended, which resulted in a twelve-year prison sentence. 

Section 46-18-221(1) provides: 

"A person who has been found guilty of any 

offense and who, while engaged in the 

commission of the offense, knowingly displayed, 

brandished, or otherwise used a firearm, 

destructive device, as defined in 45-8-332(1), 

or other dangerous weapon, shall, in addition 

to the punishment provided for thecommission -- - ----- 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 in the event of a conviction. The information alleged in part: "The maximum sentence 

for said offense is twenty (20) years plus an additional sentence 

of two years minimum and not to exceed ten years maximum for use 

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 statute for use of a firearm, and he 

has again been punished under section 46-18-221(1), MCA, for use 

of a firearm. That -- is double jeopardy. 

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 

ten years because he used a weapon. I fail to see, however, that 
the 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 (a firearm) 

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.