96-324

No. 96-324

IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

STATE OF MONTANA,

Plaintiff and Respondent,

v.

DANIEL ALDEN,

Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable G. Todd Baugh, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

William F. Hooks; Appellate Defenders

Office; Helena, Montana

For Respondent:

Hon. Joseph P. Mazurek; Attorney General;

Pamela P. Collins; Assistant Attorney General;

Helena, Montana

Dennis Paxinos; Yellowstone County Attorney;

Marcia Good Sept; Deputy County Attorney;

Billings, Montana

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Submitted on Briefs: February 6, 1997

Decided: March 18, 1997

Filed:

__________________________________________

Clerk

Justice Terry N. Trieweiler delivered the Opinion of the Court.

 The defendant, Daniel Alden, was charged by information, filed

in the District Court for the Thirteenth Judicial District in

Yellowstone County, with two counts of felony sexual assault, in

violation of 45-5-502, MCA (1993). He pled guilty to both

charges pursuant to North Carolina v. Alford (1970), 400 U.S. 25. 

The District Court accepted his plea and, after a sentencing

hearing, sentenced him to a term of imprisonment in the Montana

State Prison. He subsequently moved for reconsideration of his

sentence and requested the District Court to consider alternatives

to imprisonment, pursuant to the nonviolent offender provisions set

forth at 46-18-201 and -225, MCA (1993). After a hearing, the

District Court denied the motion. Alden appeals. We affirm the

judgment of the District Court.

 The issue on appeal is whether the District Court erred when

it sentenced Alden to a term of imprisonment.

 FACTUAL BACKGROUND

 On August 16, 1994, Daniel Alden was charged by information

with two counts of felony sexual assault. The information alleged

that he sexually molested two minor girls.

 Alden pled guilty to both of the charges pursuant to North

Carolina v. Alford (1970), 400 U.S. 25. The District Court

accepted his plea and ordered a presentence investigation report. 

The State of Montana recommended that he receive a suspended

sentence, conditioned upon his successful completion of a sexual

offender treatment program. The probation and parole officer who

prepared the presentence investigation report, however, recommended

the imposition of a term of imprisonment.

 At the sentencing hearing, Dr. Judith Starr and Dr. James

Selkin testified on Alden's behalf. Dr. Starr, a licensed

professional counselor with expertise in the field of sexual abuse,

testified that, in her opinion, the facts in Alden's case meet the

criteria for a false allegation of sexual abuse. Dr. Selkin, a

colleague of Alden's therapist at the Darrow Clinic in Denver,

Colorado, testified that, in his opinion, Alden is safe in the

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community and that incarceration would only serve to disrupt

Alden's treatment. 

 After the sentencing hearing, the District Court concluded

that a term of imprisonment is necessary to protect society and to

make Alden aware of the severity of his actions. The District

Court's judgment states, in relevant part:

 Sentence was imposed for the following reasons:

 1. the contents of the presentence report;

 2. defendant's Sex Offender Evaluation submitted by

 Michael Sullivan and other reports provided to the Court;

 3. the testimony of Judy Starr and James Selkin, Ph.D.

 presented at the sentencing hearing;

 4. apologizes on behalf of society: defendant was

 abused by father and others later in life which has

 affected defendant through no fault of his own, however,

 this is an explanation not an excuse;

 5. defendant entered an Alford plea of Guilty to both

 counts as charged, thereby canceling a public trial and

 choosing not to have the jury be provided with the

 State's proof of facts/information and allow the jury to

 deliberate on defendant's guilt or innocence;

 6. recognizes defendant did not admit to actual guilt

 of committing the offenses, however, shall treat

 rendering judgment like the offenses have been committed:

 Court personally believes defendant is in denial and

 committed the offenses charged;

 7. notes defendant has participated in sex offender

 treatment of five plus (5+) years in Colorado and

 believes treatment is not doing defendant any good

 concluding children are not safe around defendant who

 remains a risk to all children; and

 8. has no crystal ball to predict the future, however,

 considering defendant's past is the best judge of future

 actions.

Accordingly, the District Court sentenced him to two concurrent

fifteen-year terms in the Montana State Prison, with three years of

each term suspended. 

 Alden subsequently moved for reconsideration of his sentence

and requested the District Court to consider alternatives to

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imprisonment, pursuant to the nonviolent offender provisions set

forth at 46-18-201 and -225, MCA (1993). After a hearing, the

District Court denied the motion and issued a written order which

states, in relevant part, as follows:

 (1) the interests of justice and the needs of public

 safety require the level of security provided by

 imprisonment of the offender in the Montana State Prison;

 (2) the defendant remains in denial and not motivated;

 therefore the needs of the offender can not be better

 served in the community or in a facility or program other

 than the Montana State Prison;

 (3) there are no substantial grounds tending to excuse

 or justify the offense(s);

 (4) the defendant was not acting under strong

 provocation;

 (5) restitution was not an issue/argument, therefore not

 applicable;

 (6) the offender has admitted to prior offenses for

 similar criminal acts;

 (7) the defendant's conduct was the result of

 circumstances which did occur again even after defendant

 participated in treatment and defendant remains a high

 risk to re-offend;

 (8) the character and attitude of the offender indicate

 that he remains a high risk to re-offend;

 (9) rehabilitative treatment at the Montana State Prison

 may be the motivating factor needed for the offender to

 respond to correctional treatment, thereby protecting

 children and society;

 (10) imprisonment or incarceration of the offender is

 always a hardship, although the Court believes the

 hardship to any child victim including defendant's

 children far outweigh the hardship the offender's

 confinement will create.

 

 Alden appeals from the District Court's order.

 DISCUSSION

 Did the District Court err when it sentenced Alden to a term

of imprisonment?

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 In Montana, criminal sentencing alternatives are strictly a

matter of statute. State v. LaMere (1995), 272 Mont. 355, 358, 900

P.2d 926, 928. Our standard of review, therefore, includes the

question of whether the district court correctly applied the

applicable statutes. LaMere, 272 Mont. at 358, 900 P.2d at 928. 

We review the district court's findings on which its sentence is

based to determine whether they are clearly erroneous. State v.

Bower (1992), 254 Mont. 1, 7, 833 P.2d 1106, 1110.

 On appeal, Alden contends that the District Court erred when

it sentenced him to a term of imprisonment. Initially, we note

that he does not assert that the District Court failed to comply

with the sentencing procedures mandated by 46-18-201 and -225,

MCA (1993). Rather, Alden claims that the District Court's order

is not supported by evidence in the record and that, based on the

testimony and evidence he presented, he should not have been

sentenced to a term of imprisonment. In essence, he disagrees with

the District Court's final determination that incarceration is

necessary and that alternatives to imprisonment are not appropriate

in this case. 

 Section 46-18-201, MCA (1993), provides, in relevant part, as

follows:

 (10) In sentencing a nonviolent felony offender, the

 court shall first consider alternatives to imprisonment

 of the offender in the state prison, including placement

 of the offender in a community corrections facility or

 program. In considering alternatives to imprisonment,

 the court shall examine the sentencing criteria contained

 in 46-18-225. If the offender is subsequently sentenced

 to the state prison . . . the court shall state its

 reasons why alternatives to imprisonment were not

 selected, based on the criteria contained in 46-18-225.

Section 46-18-201(10), MCA (1993).

 Section 46-18-225, MCA (1993), is entitled "Criteria for

sentencing nonviolent felony offenders," and provides as follows:

 Prior to sentencing a nonviolent felony offender to a

 term of imprisonment in the state prison . . . the court

 shall take into account whether:

 (1) the interests of justice and the needs of

 public safety truly require the level of security

 provided by imprisonment of the offender in the state

 prison . . .;

 (2) the needs of the offender can be better served

 in the community or in a facility or program other than

 the state prison . . .;

 (3) there are substantial grounds tending to excuse

 or justify the offense, though failing to establish a

 defense;

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 (4) the offender acted under strong provocation;

 (5) the offender has made restitution or will make

 restitution to the victim of the offender's criminal

 conduct;

 (6) the offender has no prior history of conviction

 for a criminal act or has led a law-abiding life for a

 substantial period of time before the commission of the

 present crime;

 (7) the offender's criminal conduct was the result

 of circumstances that are unlikely to recur;

 (8) the character and attitude of the offender

 indicate that the offender is likely to commit another

 crime;

 (9) the offender is likely to respond quickly to

 correctional or rehabilitative treatment; and

 (10) imprisonment of the offender would create an

 excessive hardship on the offender or the offender's

 family.

Section 46-18-225, MCA (1993).

 Sections 46-18-201(10) and -225, therefore, require a district

court to: (1) consider alternatives to imprisonment; (2) examine

the criteria set forth at 46-18-225, MCA (1993); and (3) state

the reasons for its decision if an alternative to imprisonment is

not selected. These statutes, however, do not require a district

court to sentence a nonviolent felony offender to an alternative to

imprisonment. Instead, they allow a district court to impose an

alternative sentence when the circumstances warrant such a

disposition. 

 Likewise, although a district court must examine the criteria

set forth at 46-18-225, MCA (1993), that statute neither provides

a formula by which a district court can determine whether an

alternative to imprisonment is appropriate, nor does it indicate

that greater consideration should be given to any one of the

statutory criteria than to the others. 

 We have held that district courts are consistently granted

broad discretion to determine the appropriate punishment, and that

we will not review a sentence on appeal for mere disparity or

inequity. State v. Graveley (1996), 275 Mont. 519, 521, 915 P.2d

184, 186; State v. DeSalvo (1995), 273 Mont. 343, 346, 903 P.2d

202, 204; State v. Hembd (1992), 254 Mont. 407, 411, 838 P.2d 412,

415. Furthermore, the district court is in the best position to

weigh the evidence, judge the credibility of witnesses, and resolve

conflicts in the evidence. Bower, 254 Mont. at 8, 833 P.2d at

1111. Finally, we have previously held that although "a criminal

defendant has a right to a sentence based upon substantially

correct information, we will not strain . . . to find a mistake. 

Rather, the District Court is presumed to be correct." State v.

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Petroff (1988), 232 Mont. 20, 23, 757 P.2d 759, 761 (citation

omitted). 

 At both the sentencing hearing and the hearing on the motion

for reconsideration, Alden presented evidence and witnesses in

support of his contention that alternatives to imprisonment were

appropriate in his case.

 However, the District Court considered alternatives to

imprisonment, examined the criteria set forth at 46-18-225, MCA

(1993), and, in its written order, stated its reasons, based on the

criteria set forth at 46-18-225, MCA (1993), why alternatives to

imprisonment were not selected. 

 Furthermore, we conclude that evidence was presented which

supports the findings on which the District Court's sentence was

based, and that its findings were not clearly erroneous. That

evidence consisted of the following documents or facts: the

presentence investigation report and its attachments; Alden's

admission that he had molested children in the past; the absence of

an excuse or provocation for the commission of the acts alleged in

this case; the apparent ineffectiveness of prior treatment; the

possibility that Alden would re-offend in the future; the need to

protect society, particularly children who are at risk; and the

seriousness of the crimes charged.

 Therefore, we conclude that the District Court did not err

when it sentenced Alden to a term of imprisonment. Accordingly,

the judgment of the District Court is affirmed.

 /S/ TERRY N. TRIEWEILER

We Concur:

/S/ J. A. TURNAGE

/S/ JIM REGNIER 

/S/ KARLA M. GRAY

/S/ WILLIAM E. HUNT, SR.

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