No. 79-46 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

STANLEY CHARLES OLSEN, 

Defendant and Appellant. 

Appeal from: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin. 

Honorable Joseph B. Gary, Judge presiding. 

Counsel of Record: 

For Appellant: 

Phillip N. Carter, Bozeman, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Donald White, County Attorney, Bozeman, Montana 

Submitted on briefs: April 24, 1980 

Decided: $UL 2 8 1980 

Filed: 31~3 8 *m@ 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Defendant was convicted of the crime of burglary after a 

jury trial in the Eighteenth Judicial District, County of 

Gallatin. Defendant appeals both the judgment and the sentence. 

In the early morning hours of May 26, 1979, Belgrade, 

Montana, police officers spotted two persons acting suspiciously near a parked vehicle. As the officers approached, one 

person jumped into the automobile while the other fled on 

foot, eventually eluding police. The suspect in the car, identified as Mary Donahue, was apprehended after a high-speed 

chase. Later that same morning a number of chain saws were reported missing from Tony's Equipment & Saw Shop in Belgrade. 

Shortly thereafter, Mary Donahue gave an oral statement to the 

police. 

Defendant Olsen was arrested and identified as the second 

suspect who had fled the scene hours earlier. A consent search 

of the vehicle resulted in the recovery of eight chain saws. 

The criminal information charged defendant with aiding and 

abetting Mary Donahue in the commission of burglary. An amended information was filed six days before the scheduled June 26, 

1979, trial date, charging Olsen with burglary as the principal 

perpetrator of the alleged crime. Olsen was arraigned on the 

new charges, and trial was rescheduled for July 5, 1979. The 

jury convicted Olsen of the crime of burglary, and the trial 

judge sentenced him to ten years at the Montana State Prison, 

without any possibility of parole or participation in the 

prison furlough program. 
Defendant raises two issues on appeal: 

1. Is section 46-11-403(1), MCA, which permits an information to be amended once as to substance up until five days 

prior to trial without leave of court, unconstitutional in that 

it does not require a judicial examination to make such a substantive change? 

2. Was the sentence and judgment in this case proper? 

This Court recently resolved the first issue in State v. 

Cardwell (1980), - Mont . - , 609 P.2d 1230, 37 St.Rep. 750, 

wherein we held that section 46-11-403(1), MCA, was indeed unconstitutionaland that we were therefore obliged to reverse 

the defendant's conviction due to the effect that statute had 

on defendant's right to a fair trial. Any statute allowing the 

amendment of a criminal information without leave of court is 

in conflict with Article 11, Section 20, 1972 Montana Constitution, and must be declared invalid. State v. Cardwell, 609 

Accordingly, the decision in Cardwell is binding on the 

issue of the constitutionality of section 46-11-403(1), MCA. 

We do not, however, find ourselves required to summarily reverse the convictions of the District Courts where this statute 

was relied upon, without first concluding that the use of the 

invalid statute prejudiced the defendant's case and interfered 

with his right to a fair trial. Each case must be reviewed 

and decided on its own facts. As this Court ruled in State v. 

Armstrong (1977), 172 Mont. 296, 300, 562 P.2d 1129: 

". . . Any error which does not affect the 

substantial rights of the defendant constitutes 'harmless error' and will not constitute grounds for reversal on appeal. Section 

95-2425, R.C.M. 1947. [Now section 46-20-701, 

MCA.] Rule 14, M.R.App.Civ.P." (Emphasis 
supplied. ) 

Moreover, we will not presume that the use of section 

46-11-403(1), MCA, was per se prejudicial. The requisite 

prejudice must be shown from the record as a denial of a 

substantial right. State v. Gallager (1968), 151 Mont. 501, 

445 P.2d 45, 47. See also State v. Walker (1966), 148 Mont. 

216, 419 P.2d 300. 

The record reveals that the original information charged 

Olsen with aiding and abetting in a burglary. The amended 

information charged the defendant with burglary as a principal 

in the crime. Both theories went to the jury. The trial 

court's Instruction No. 5 explained the offense of burglary, 

and Instruction Nos. 14 and 15 defined the crime of aiding 

and abetting. We specifically approved such a practice in 

State v. Oppelt (1978), 176 Mont. 499, 580 P.2d 110, 35 St.Rep. 

We take note of the fact that in Cardwell the amended 

information was substantially different from the original 

information. In the case before us the crimes charged in the 

informations both may lead to the same punishment, and because 

both theories were placed before the jury there exists no 

substantial departure from the original information that would 

materially prejudice defendant's case. 

When this Court overturned the amended information statute 

in Cardwell, we examined two basic procedural safeguards that 

were denied the defendant and which significantly affected his 

right to a fair trial. The first was that a defendant should 

receive a neutral determination of probable cause for detention 

under the amended charges. As previously mentioned, the 
amended information in Cardwell constituted a substantial departure from what the defendant was originally charged with, and 

the fact that a judge had not reviewed the new information was 

greatly injurious to his right to a fair trial. We are not persuaded that the same injury took place here. Admittedly, Olsen 

was entitled to have t.he amended information reviewed by a judge. 

However, because the informations were based on the same set of 

facts and because the charges involved were not significantly 

different, we can find no prejudice to this defendant's rights. 

The second procedural safeguard that was the basis of the 

Cardwell decision was that of notice and opportunity to defend. 

We agree that one of the purposes of a criminal information is 

to notify the defendant of the offense charged and to give the 

defendant a chance to defend against the new charge. State v. 

Cardwell, 609 P.2d at 1233; State v. Tropf (1975), 166 Mont. 

79, 88, 530 P.2d 1158, 1163; State v. Heiser (1965), 146 Mont. 

413, 416, 407 P.2d 370, 371. Further, our decision in Cardwell 

stood for the proposition that when an amended information 

makes substantive changes in the charges against a defendant, 

he should be arraigned under the new charges. State v. Cardwell, 

609 P.2d at 1233; citing State v. Butler (1969), 9 Ariz. App. 

162, 450 P.2d 128, 131; Hanley v. Zenoff (1965), 81 Nev. 9, 398 

P.2d 241, 242. 

In our review of the record in this case, it is apparent 

that defendant was accorded every notice consideration, includ-. 

ing arraignment on the amended information in open court on 

June 20, 1979, a full sixteen days before his jury trial on 

those charges. At no time following the filing of the amended 

information and his arraignment on the new charges did defendant 

express any desire for a continuance to make further preparation 
for his defense. It is clear f~:cm the record that this defendant, unlike the defendant in Cardwell, received every 

procedural consideration concerning notice and arraignment, and 

that he was afforded sufficient time to prepare his legal defense against the amended information. The use of section 46- 

11-403(1), MCA, in no way prejudiced defendant's case or materially interfered with his rights to a fair trial. 

Regarding defendant's second issue, the District Court 

sentenced him to ten years in the State Prison. The sentence 

further provides that defendant is not eligible for parole or 

for participation in the prison furlough program, pursuant to 

section 46-18-202(2), MCA. That section requires the judge to 

set forth his reasons in writing for denying any possibility of 

parole or furlough. 

Defendant asserts that the sentence is improper because 

the District Court relied on a presentence investigation report 

that contained false and misleading information and was otherwise prejudicial to defendant. The claims involve several 

items on his F.B.I. "rap" sheet. He asserts that the court 

erroneously relied on a 1954 felony conviction in the State of 

Washington that was reversed, an Oregon felony conviction that 

was reversed, and a felony conviction in Wyoming that was constitutionally infirm. Olsen also contends that the length of 

the "rap" sheet, four and one-half pages with some forty-five 

entries, was prejudicial to the District Court sentence, insofar 

as only sixteen entries reflect convictions. 

This Court has adopted the rule expressed by the United 

States Supreme Court in Townsend v. Burke (1948), 334 U.S. 736, 

68 S.Ct. 1252, 92 L.Ed. 1690, that a defendant is entitled to 

have his sentence predicated on substantially correct information. State v. Knapp (1977), 174 Mont. 373, 570 P.2d 1138. 
With regard to the Wyoming conviction, defendant properly 

relies on United States v. Tucker (1972), 404 U.S. 443, 92 S.Ct. 

589, 30 L.Ed.2d 592, which found a due process right to not 

have sentencing based uponconstitutionally infirm decisions. 

We are not convinced, however, that those rules are applicable 

to defendant's case for the record does not bear out Olsen's 

contention that the sentence was significantly grounded in 

those convictions. 

First of all, the District Court in its sentencing memorandum dated July 19, 1979, stated that ". . . on February 13, 

1954, he was sentenced for 0-10 years, and the conviction was 

apparently overturned." Thus, there can be no merit to the 

argument that the court relied on the Washington conviction in 

sentencing defendant. 

Second, we take note of the fact that both the Wyoming conviction and the Oregon conviction are mentioned in the District 

Court's sentencing memorandum. We are not persuaded, however, 

in light of defendant's thirty-three years of criminal activity 

in mostly theft-related areas, that the trial judge would have 

altered the sentence in any way had those two convictions not 

been considered. In view of defendant's extensive criminal 

background and his numerous years in state and federal prisons, 

this Court is constrained to find that defendant experienced 

no material prejudice to his sentence or substantial interference with his rights because of the trial court's review of 

these two convictions. 

The rules applicable in this case have been settled in 

Ryan v. Crist (1977), 172 Mont. 411, 414, 563 P.2d 1145, 1146: 

"We hold that where it is shown improper 

matters have been brought before the sentencing court for its consideration in sentencing, 

and where those matters are not disclosed and 
explained at the sentencing hearing, a defendant has a right to be resentenced." 

The record is clear that improper matters were brought 

before the sentencing court as in Ryan; however, that is where 

the similarity between Ryan and the case before us stops. 

The record discloses that all three prior convictions 

which defendant asserts prejudiced the sentencing court were 

raised by defendant at the sentencing hearing. In Ryan, we 

found that the matters were not disclosed or explained at the 

sentencing hearing; however, in this case the convictions were 

disclosed and discussed at the sentencing hearing by defendant 

and his attorney. We conclade, therefore, that the sentencing 

judge was fully aware of the problems with the prior convictions at the time of sentencing. 

Further, there is no evidence that the court actually relied on the improper information found on the "rap" sheet. 

After the improper convictions were discussed, the District 

Court stated in its sentencing memorandum: 

"However, pursuant to statute, I requested a 

presentence investigation from the probation 

officer and testimony was presented to the 

court that was competent to show that Stanley 

Charles Olsen, the defendant in this matter, 

was a convicted felon and was convicted on 

the following occasions: 

"(a) Richland County, Montana, for burglary 

on October 28, 1968, with eighteen years of 

imprisonment; 

"(b) United States Federal Court, Billings, 

Montana, on May 9, 1975, for forgery and 

counterfeit obligations. 

"In addition, while the defendant has raised 

the question of hearsay evidence in the presentencing investigation, while I'm not relying on the balance of the presentencing report 

other than the testimony presented and examined 

by the court above . . ." (Emphasis supplied.) 

This Court is required only to review the record estab- 
lished below. Based on that record, we must find that the 

rule in Ryan v. Crist, supra, is inapplicable to this case. 

As a final assertion, defendant argues that the length of 

the "rap" sheet was prejudicial in that only sixteen entries 

resulted in defendant's conviction for the crimes charged. 

We find the sentencing transcript on this matter conclusive : 

"Q. [The Court] Are there any other felony 

charges on there that we have not addressed? 

"A. [Defendant] There's some charges that are 

here that don't show any disposition. 

"THE COURT: I might say, Mr. Olsen, that I 

didn't take those into account. 

"MR. OLSEN: Well; you mentioned this armed robbery yesterday, but I was acquitted on that. 

It doesn't show that disposition on this I 

notice, but-- 

"THE COURT: I haven't taken into account. 

That doesn't show a conviction." 

As a final note, defendant has submitted a supplemental 

appeal brief dated May 15, 1980. We find that in no manner is 

the brief "supplemental" to any issue previously raised by him. 

the contrary, the brief requests this Court to review five 

new and totally different issues. In regard to this brief, 

we are guided by section 46-20-403, MCA, which provides: 

"The appellant may file a brief in reply to 

the brief of the respondent. The reply brief 

must be confined to new matter raised in the 

brief of the respondent. No further briefs 

may be filed except with leave of court." 

(Emphasis added.) 

We conclude that this brief neither suppiements nor 

replies, and since this Court at no time granted leave for new 

briefs, the issues raised therein must be dismissed. 

In conclusion, this Court must affirm its holding in State 

v. Cardwell, supra, in finding section 46-11-403(1), MCA, un- 
constitutional. However, the invalidity of that statute did 

not prejudice defendant's case or materially interfere with 

his rights to a fair trial. 

Also, we find that although there were inaccurate entries 

on the "rap" sheet attached to the presentence report, there 

is substantial evidence in the record demonstrating that the 

improper information was disclosed and discussed so as to 

alert the sentencing judge to the inaccuracies therein. Further, 

there is ample evidence that the trial judge relied only upon 

convictions and facts known to be true accounts of defendant's 

criminal record. 

Accordingly, finding no prejudice, we affirm. 

We concur: 

Chief Justice