### 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 

# 14

## i982Mr. Justice Frank B. Morrison, 

### Jr., delivered the Opinion of the Court.
Following a jury trial before the Thirteenth Judicial DistrictCourt, Yellowstone County, the defendant, 

### James Monte Tate was convicted of burglary and sentenced to ten (10) years inthe Montana StatePrison. Defendant appeals. The facts pertinent to the issue raised inthis appeal
can be concisely stated asfollows: On April 29, 1980, an information was filed inthe DistrictCourt charging defendant with the offense of burglary. The defendant entered a plea of not guilty to the charge. A trialwas held on March 10th and llth, 1981. Attrial, after the Statehad presented 

### its opening statement, the defendant requested to speak privately with the presiding judge. The judge and defendant then conferred inchambers 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 inovercoming thatproblem. He desired placement inan alcohol treatment facilityand probation in exchange for a guiltyplea. 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, allwhile intoxicated. Defendant admitted to using marijuana occasionally, and tohaving 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 guiltyplea to first send him up to Galen, run him through the treatment, and then when he gets back, put him up inSwan River on a 5-year sentence 

# .

# .." The Statedid not object to the plan.Defense counsel then conferred with the defendant. No record was made atthis conference; apparently the defendant rejected the plan because no guiltyplea was entered and the trial resumed. Defendant was found guilty and sentenced by thepresiding judge to a 

### termof ten (10) years in the Montana State Prison. The judge based this sentence on the pre-sentence report, the facts adduced attrial, the defendant's age, and the opportunities available under the parole provisions in Montana. The sole issueraised on appeal 

### iswhether the defendant
was punished for exercising his right to a jury 

### trial. As noted inStatev. 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" (citationsomitted), 629 P.2d at225, 38 St.Rep. at884-85. This Court also acknowledged inBaldwin, supra, that: 

### "[i] 

### t may be difficult to distinguish between situationswhere leniency 

### is offered inexchange for a plea and situationswhere the defendant 

### ispunished for exercising his right to trialby jury." 629 P.2d at225, 38 St.Rep. at885. In order to eliminate this difficulty and also to protect a criminal defendant's constitutional rights, this Court inBaldwin 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 inexcess of thatwhich 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 attrialrather than to enter a plea of guilty or nolo contendere." To implement this standard and facilitatejudicial review,


### we declared inBaldwin that: 

# ".

. 

# . a sentencing court which becomes involved in the plea bargaining process, and which imposes a harsher sentence after 

### trial than was offered inexchange for a guilty plea, must specifically point 

# -- out the factors thatjustify the increased 

# - sentence." 629 P.2d at226, 38 

### St.Rep. at 886. (Emphasis added.) In this case, the sentencing court imposed itself in the plea bargaining process and suggested thatdefendant be sentenced to treatment atthe Galen Alcoholic Treatment Center and then five (5) 

### years atSwan River instead of the Montana StatePrison. This offer 

### was based primarily on the court's belief that the defendant did have a drinking problem and alsobecause the defendant 

### was only eighteen (18) years old. Following trial defendant was sentenced to ten (10) 

### years inthe Montana StatePrison. The court stated that it 

### based this sentence on 

# ".

. 

# . allof the facts that are set forth inthe Pre-Sentence Report and considering the facts of the trial 

### of this action, and considering also the fact thatyou are 18 years of age and that the opportunities that
aregiven to you under the parole rights in this State. 

# . ." To a large degree, the sentencing court had much of this information atitsdisposal 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,asrequired by Baldwin, supra. We note that the sentencing court in this case rendered 

### its decision on March 20, 1981, approximately sixweeks prior to our decision inBaldwin. 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

.\