No. 81-202 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS. 

JAMES MONTE TATE, 

Defendant and Appellant. 

Appeal from: District Court of the Thirteenth ~udicial ~istrict, 

In and for the County of Yellowstone 

Honorable Robert Wilson, Judge presiding. 

Counsel of Record: 

For Appellant: 

Stacey and Jarussi, Billings, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Harold F. Hanser, County Attorney, Billings, Montana 

Submitted on briefs: October 8, 1981 

Decided: January 14, 1982 

Filed: JAN 1 4 i982 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion 

of the Court. 

Following a jury trial before the Thirteenth Judicial 

District Court, Yellowstone County, the defendant, James 

Monte Tate was convicted of burglary and sentenced to ten 

(10) years in the Montana State Prison. Defendant appeals. 

The facts pertinent to the issue raised in this appeal 

can be concisely stated as follows: 

On April 29, 1980, an information was filed in the 

District Court charging defendant with the offense of 

burglary. The defendant entered a plea of not guilty to the 

charge. A trial was held on March 10th and llth, 1981. 

At trial, after the State had presented its opening 

statement, the defendant requested to speak privately with 

the presiding judge. The judge and defendant then conferred 

in chambers without attorneys present. 

The defendant indicated he had second thoughts about a 

prior plea bargain offer. The defendant stated he had a 

drinking problem and wanted help in overcoming that problem. 

He desired placement in an alcohol treatment facility and 

probation in exchange for a guilty plea. 

The judge questioned defendant regarding the defendant's 

drinking. Defendant stated he had had the problem since he 

was sixteen (16) or seventeen (17) and that he had just 

turned age eighteen (18). He stated he had committed other 

burglaries as a juvenile, all while intoxicated. Defendant 

admitted to using marijuana occasionally, and to having 

tried other drugs. 

The judge then conferred with the attorneys out of the 

presence of the defendant. The judge indicated that he was 
". . . turning over the possibility of a guilty plea to 

first send him up to Galen, run him through the treatment, 

and then when he gets back, put him up in Swan River on a 

5-year sentence . . ." The State did not object to the 

plan. 

Defense counsel then conferred with the defendant. No 

record was made at this conference; apparently the defendant 

rejected the plan because no guilty plea was entered and the 

trial resumed. 

Defendant was found guilty and sentenced by the presiding 

judge to a term of ten (10) years in the Montana State 

Prison. The judge based this sentence on the pre-sentence 

report, the facts adduced at trial, the defendant's age, and 

the opportunities available under the parole provisions in 

Montana. 

The sole issue raised on appeal is whether the defendant 

was punished for exercising his right to a jury trial. 

As noted in State v. Baldwin (1981), Mont. I 

629 P.2d 222, 38 St.Rep. 882, "To punish a person for exercising 

a constitutional right is a basic due process violation" 

(citations omitted), 629 P.2d at 225, 38 St.Rep. at 884-85. 

This Court also acknowledged in Baldwin, supra, that: 

" [i] t may be difficult to distinguish between 

situations where leniency is offered in exchange for a plea and situations where the 

defendant is punished for exercising his right 

to trial by jury." 629 P.2d at 225, 38 St.Rep. 

at 885. 

In order to eliminate this difficulty and also to 

protect a criminal defendant's constitutional rights, this 

Court in Baldwin adopted ABA standard 14-sec. 1.8(b), ABA 

Standards for Criminal Justice (2d. ed. 1980). This standard 

declares that: 
"(b) The court should not impose upon a defendant any sentence in excess of that which would 

be justified by any of the protective, deterrent, 

or other purposes of the criminal law because 

the defendant has chosen to require the prosecution to prove guilt at trial rather than to 

enter a plea of guilty or nolo contendere." 

To implement this standard and facilitate judicial review, 

we declared in Baldwin that: 

". . . a sentencing court which becomes involved 

in the plea bargaining process, and which imposes 

a harsher sentence after trial than was offered 

in exchange for a guilty plea, must specifically 

point -- out the factors that justify - the increased 

sentence." 629 P.2d at 226, 38 St.Rep. at 886. 

(Emphasis added.) 

In this case, the sentencing court imposed itself in 

the plea bargaining process and suggested that defendant be 

sentenced to treatment at the Galen Alcoholic Treatment 

Center and then five (5) years at Swan River instead of the 

Montana State Prison. This offer was based primarily on the 

court's belief that the defendant did have a drinking problem 

and also because the defendant was only eighteen (18) years 

old. 

Following trial defendant was sentenced to ten (10) 

years in the Montana State Prison. The court stated that it 

based this sentence on ". . . all of the facts that are set 

forth in the Pre-Sentence Report and considering the facts 

of the trial of this action, and considering also the fact 

that you are 18 years of age and that the opportunities that 

are given to you under the parole rights in this State. . ." 

To a large degree, the sentencing court had much of 

this information at its disposal when it offered the original 

plea bargain to the defendant. It is impossible to determine 

what new information or facts led the sentencing court to 

increase the sentence. Enumerating the general grounds for 

the defendant's sentence does not "point out the factors" 

justifying the increased sentence with sufficient specificity, 
as required by Baldwin, supra. 

We note that the sentencing court in this case rendered 

its decision on March 20, 1981, approximately six weeks 

prior to our decision in Baldwin. As a result, its decision 

could not conform with the Baldwin requirements. In light 

of this, we vacate the defendant's sentence and remand this 

case for re-sentencing in conformity with ~aldwin. 

We Concur: 

%oce&.9 

Chief. Justice 

4&, dQQ 

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