TN THE SIJPREME COURT OF THE STATE OFMOI\?TANA

STATE OF MONTANA, Plaintiff and Respondent,-vsGORDON THIEL,
Defendantand Appellant.

APPEAL FROM: DistrictCourtof the SeventhJudicial District, Inand for the Countyof Richland, TheHonora.bleDaleCox, Judge presiding.
COUNSEL OF RECORD:
For Appellant: IraEakin, Billings, Montana
For Respondent:
Hon. MarcRacicot, AttornevGeneral, Helena, Montana KathySeeley, Asst. Atty. General, Helena


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VictorG. Koch, CountyAttorney; PhillipN. Carter, 

# 5Deputy CountyAttorney, Sidney, Montana 6, 0 0 & c3

Submittedon Briefs: November 17, 1988
Decided: February 3, 1989

'ClerkMr. Justice William E. Hunt, Sr.

### , delivered the Opinion of the Court.

Gordon Thiel appeals from the judgment of the District Court, Seventh Judicial District, County of Richland. We affirm in part and reverse in part the District Court's judgment. Two issues arepresented for our consideration: 1. Whether fundamental fairness requires that we dismiss Counts I through XXIV; 2. Whether Thiel's constitutional rightswere violated by the District Court's refusal to allow him to examine the file of the assigned socialworker. We agree with Thiel's position on issue one and reverse the DistrictCourt's judgment with regard to Counts Ithrough XXIV and dismiss those counts. We affirm the convictionson CountsXXV and XXVI. This case commenced in 1983. At that time, Thiel was chargedwith two countsof sexual intercoursewithout consent against his stepdaughter, J.P. Plea negotiations with the county attorney ensued. The parties agreed that Thiel's participation in a sexual offender's treatment program would be a condition of the plea agreement. Therefore, Thiel, before entering his plea, was evaluated by apsychologist to determine whether he was amenable to treatment. During the evaluation Thiel admitted to additional instances of sexual. misconduct, including the abuse of J.P. 's sibling, T.P., several times from 1980 through 1983. This informationwas transmitted to the county attorney and defense counseldurinq the course of plea negotiations. A seven year suspended sentence was agreed upon rather than a two or three year deferred sentence as was initially discussed. The record shews that the increase 

### in the sentence recommendationwas adirect result of the new information. In May, 1984, Thiel entered into a written plea agreement with the State. Pursuant to the agreement,Thiel pleaded guilty to two counts of sexual assault against J.P. and received a seven vear suspended sentence. Later in July or August, 1984, Thiel had contact with T.P. and sexually assaulted her. She did not report the assault at that time. In February or March, 1985, the Thiel family reunited but in fall of that year T.P. moved out. Thiel assaulted J.P. sometime in early 1986. The assaultwas not reported until October, 1986. When both J.P. and T.P.
were interviewed by authorities, T.P. reported the 1984 assault and the numerous incidents occurring from 1980 to 1983 to which Thiel had already admitted during his psychological evaluation. In November, 1986, Thiel was charged with 26 counts of sexual intercourse without consent. Counts I through XXIV
were based upon Thiel's numerous assaults against T.P. that occurred from 1981 through 1983. Count XXVwas based on the 1984 assault against T.P. and Count XXVI was based on the 1986 assault against J.P. Before trial and prior to voir dire Thielmoved todismiss the first 24 counts,arguing they had been the subject of the earlier plea bargain agreement. TheDistrictCourt denied the motion. After the Staterested its case, Thiel renewed the motion to dismiss. The court took themotion under advisement. Thielwas convicted on all counts with hismotionunresolved. An evidentiary hearing on Thiel's motion was then held, after which the court issued findings of fact, conclusions of law, and an order denying the motion. The court sentenced Thiel to 20 years with all but 30 days suspended on each of Counts I through XXIV and,
on Counts XXTT and XXVI, the court sentenced Thiel to ten
vears each. It is from this convictionThiel appeals.Thiel first contends that the State is barred from prosecuting Counts IthroughXXIVbecause these offenses were included in the scope of the 1984plea agreement. He argues that it is fundamentally unfair toprosecute him for offenses that were revealed and considered during plea negotiations and sentencing for theprevious charges. We agree. The facts of this case demonstrate that Thiel's admission to a treatment program was a prerequisite to the 1984 plea bargain with the State. In order to be accepted into such a program, Thiel was required to undergo an evaluationofhis amenability to treatment. An indication of his amenability was his willingness to admit his past behavior. Unless the evaluator believed thathe had admitted all of his offenses, Thiel would not be accepted to the program. Ifrejected

### by theprogram, plea negotiations would
cease, and Thiel would face a prison sentence or fine. Hence, in order to ensure the continuance of negotiations, Thiel waived his right to remain silent and. underwent the evaluation. During the evaluation,Thiel revealed several additional sexual offenses, including the assaults on T.P. This informationwas communicated to the county attorney as well
as counsel for thedefense. As a result,the sentence agreed upon by Thiel and the county attorneywas set at seven years suspended rather than two or three deferred as orginallj7 discussed. At the sentencing hearing, the State introduced copies of the psychological evaluation and a letter from the psychologist to the social worker in charge of the Thiel family case. These two documents contained references to offenses towhich Thiel admitted during the evaluation. Thiel had few options other than to sacrificehis right to remain silentand revealhis entirepast. His revelations

were used to increase his sentence. Fundamental fairness

### forbids the State from now prosecuting him for offenses for which he has essentially already been punished. We therefore
reversetheDistrictCourt's judgmentwith regard to Counts I 

### through XXIV and dismiss those counts. Next, Thiel attacks the validity of 

### his conviction on Counts XXV and XXVI, claiming he was denied a fair trial because he was not allowed to review the contents of the assigned social v~orker' s file. Thiel argues that the District Court violated his constitutionalright to confront the witnesses against him when it refused to allow him to examine the entire file. Section 41-3-205, MCA, governs this issue and reads in pertinentpart as follows: (1) The case records of the department of social and rehabilitation services, the department of family servicesand its local affiliate,the county welfare department, the county attorney, and the court concerning actions taken under this chapter and all records concerning reports of child abuse and neglect shall be kept confidential except as provided by this section. Any person who permits or encourages the unauthorized dissemination of their contents isguilty of amisdemeanor.

(2) 

### Records may be disclosed to a court for in camera inspection if relevant to an issue before it. The court may permit public disclosure if it finds such disclosure to be necessary for the fair resolutionof an issuebefore it.
The constitutionality of 41-3-205, MCA, has not directly been determined by this Court. The United States Supreme Court, however, examined a similar statute in pennsylvania v. Ritchie (1987),480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40. The Court concluded that the defendant's right to confront his accusers 

### -- was not violated by a Pennsylvania statute requiring that child abuse investigative files be keptconfidential. The Court stated that as long as the defendant was not. prevented from cross-examining thevictim, his right to confront witnesses was not violated. Ritchie, 480U.S. at 54, 107S.Ct. at 1000. Thiel was given wide latitude at trial to cross-examine allwitnesses againsthim. We agreewith theposition of the Court in Ritchie and hold that Montana's child abuse confidentiality statute as it applies to file reviewdoesnot violate a defendant's right to confront his accusers. Thiel also hints that disclosure of the full file is compulsory according to law because it may contain exculpatory evidence. This, too, was considered by the United States Supreme Court in -- Ritchie. The Court concluded that 

### as long as the statute allowed the trial court to review the
case worker's files in camera and to release material information from the file to the accused, the defendant's interest in ensuring a fair trial was fully protected. Ritchie, 480U.S. at 60, 107S.Ct. at 1003. The Court expressed the policy underlying this procedure: To all-owfulldisclosureto defense counsel in this type of case would sacrifice unnecessarily the Commonwealth's compelling interest in protecting its child abuse information. If the CYS records were made available to defendants, even through counsel, it could have a seriously adverse effect on Pennsylvania's efforts to uncover and treat abuse. Child abuse is one of the most difficult crimes to detect and prosecute, in large part because there often are no witnesses except the victim. A child's feelings of vulnerability and guilt,and his or her unwillingness to come forward are particularly acute when the abuser is aparent. It therefore is essential that the child have a state-designated person towhom hemay turn,and to do so with the assurance of confidentiality

# . Relatives and neighborswho suspect abuse also will be more willing to come forward if they know that their identities will be protected. Recognizing this, the Commonwealth--like all other States--has made a commendable effort to assure victims and witnesses that theymav speak to the CYS counselors without fear of general disclosure. TheCommonwealth's purpose would be frustrated if this confidential material had to be disclosed upon demand to a defendant charged with criminal child abuse, simply because 

### a trial court may not recognize exculpatory evidence. Neither precedent nor common sense requires such a result. Ritchie, 480U.S. at 60-61,107 S.Ct. at 1003-04. At trial, the District Court twice examined in camera the social worker's file. As does the highest court in the land, so do we think that the appellant's rightswere fully protected by the District Court's in camera study of the socialworker's file. We affirm on this issue. We affirm Thiel's conviction on Counts XXV and XXVI, reverse the judgmenton Counts I throughXXIV, and remand for proceedjngs in accordance with this opinion.

We Concur: 

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Judge sittinq for Justice

trict Judge, sitfkbg for JusticeR. C. McDonough 

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