NO. 82-288 INTIIE SUPXE!'4E CC)U!?T OF THE STATF OF ?IOI.JTP.?JA 1983

STATE OF MONTAXA, Plaintiff and Respondent,

KA2EN I. GIWY,Defendant and Appellant,

Appeal from: The DlstrictCourt of theThird Judlcial District, In and for theCounty of Pov~ellThe Honorable Robert Boyd, Judge presiding.
Counsel of Record: For Appellant: I(arei1 I. Gray, pro set DeerLodge, l'lontana For Kespondent: Hon. Mike Greely

### , Attorney qeneral

### , Ifelen?, Montana TedMizner, County Attornev, DeerLodge, Montana



### ----- Submitted on Briefs: April 21, 198-3 Decided: Play 19, 1983

Filed: 

## MAY

## 19

## 1983

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. -..--. ClerkMr. Justice John Conway Harrison delivered the Opinion of the Court. Defendant appealspro se from the sentence she received after she pled guilty to two counts of felony theft. On September 10, 1981, defendant was charged with two counts of felony theft in the District Court of the Third Judicial District, Powell County. Court I charged defendant had made false statements to Powell County welfare employees to receive food stamps in the amount of $1,913. Count I1charged defendant failed to report income accurately and fraudulently received $3,067.60 in AFDC payments. Defendant pled not guilty to both counts. Thereafter, in conjunction with a plea bargain, defendant withdrew her pleas of not guilty and pled guilty to both counts on May 20, 1982. The substanceof the plea bargain was the State agreed to recommend a sentence of threeyears suspended if defendant pled guilty to both counts. The District Court ordered a presentence investigation and set sentencing for July 8, 1982. On that day defendant appeared at the sentencing hearing, the State recommended a three-year suspended sentence, and the District Court ordered defendant serve threeyears inprison with allbut thirtydays suspended. The Court further ordered defendant make restitution to the State of Montana and serve the thirtydays in the county jail atthe rate of two days per week. Defendant appealsonly the thirty-day sentence. The substance of the issues raised on appeal 

### is: 1. Whether theDistrict Court erred innot imposing sentence asthe Staterecommended. 2. Whether the District Court was prejudiced by the presentence investigation report. Defendant first contends the District Court erred by not imposing a three-year suspended sentence as the State recommended. This Court has upheld the discretion of the 

### District Court in sentencing a defendant who has pled guilty as part of aplea bargain in State v. Mann (1976), 169 Mont. 306, 546 P.2d 515. Here, defendant was informed by theDistrict Court that the recommendation of the State was not binding upon the Court. Defendant stated she understood. Therefore, she must accept the sentencepronounced by the

### District Court. Next, defendant claims the District Court was prejudiced by thepresentence investigation report. Most of defendant's objections stem from material contained inparagraph 9 of the report. The District Court ordered paragraph 9 stricken from the report atthe sentencing hearing. In Statev. Orsborn (1976), 170Mont. 480, 486, 555 P.2d 509, thisCourt stated, 

### "Aconvicted defendant still has a due process guarantee against a sentence predicated
on misinformation." For defendant to here claim she did not receive due process, she must show the District Court pronounced sentence based upon misinformation contained in the presentence investigation report. This defendant has failed to show. Section 46-18-112, MCA, governs the contents of the presentence investigation report and we find with the exception of paragraph 9, which was stricken, the report complied with this section. Judgment is affirmed

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ustice *== &&J We concur: 

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Ckief Justice