DA 07-0774

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 116

PATRICK KEITH HIRT,

Petitioner and Appellant,

v.

STATE OF MONTANA,

Respondent and Appellee.

APPEAL FROM: District Court of the Twenty-First Judicial District,

In and For the County of Ravalli, Cause No. DV-06-37

Honorable James Haynes, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Patrick G. Sandefur, Attorney at Law, Missoula, Montana

For Appellee:

Hon. Steve Bullock, Montana Attorney General; Micheal S.

Wellenstein, Assistant Attorney General, Helena, Montana

George H. Corn, Ravalli County Attorney, Hamilton, Montana

Submitted on Briefs: March 11, 2009

Decided: April 7, 2009

Filed:

__________________________________________

Clerk

April 8 2009
2

Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Patrick Keith Hirt appealsfromthe Opinion and Order denying his Amended Petition

for Postconviction relief entered October 26, 2007 by the District Court ofthe Twenty-First

Judicial District, Ravalli County, the Hon. James Haynes presiding. We affirm.

¶2 Hirt presents the following issues for review:

¶3 Issue One: Whether Hirt was erroneously designated as a Level 3 sexual offender

under § 46-23-509, MCA, based upon misinformation.

¶4 Issue Two: Whether Hirt was denied effective assistance of counsel at sentencing,on

direct appeal and on postconviction relief.

PROCEDURAL AND FACTUAL BACKGROUND

¶5 In June, 2003, Hirt was charged in Ravalli County with sexual intercourse without

consent involving a three-year-old girl and with sexual assault involving a fourteen-year-old

girl. Attorney Kelli Sather represented Hirt fromJuly, 2003, through his sentencingin April,

2004.

¶6 On the opening day of trial in December, 2003, Hirt and the State entered a plea

agreement in which Hirt agreed to plead no contest to the sexual assault charge in return for

which the State dismissed the sexual intercourse without consent charge. The State agreed to

recommend a sentence of no more than 10 years while Hirt was free to argue for a lesser

sentence. On December 15, 2003, the District Court conducted a change of plea hearing,

received an account for the factual basis of the plea from Hirt, and advised Hirt of his rights

in regard to the plea. Hirt and Sather represented to the court that they believed that he
3

would be found guilty if tried. Hirt confirmed that his plea was voluntary and that Sather

had given him good advice and representation. The District Court accepted the plea of no

contest.

¶7 The parties agreed to designate Michael English or, if he could not serve, Michael

Scolatti, to conduct a psychosexual evaluation of Hirt prior to sentencing. English

completed his evaluation in January, 2004, recommending that Hirt be designated as a Level

3 offender due to his high risk of re-offending and the low probability of successful

treatment. The recommendation was based upon Hirt’s history of drug and alcohol abuse,

his inability to control his use, the results of two risk assessment tests, Hirt’s credibility,

Hirt’s inability to take full responsibility for his acts, and his penchant for mixing prescribed

medications and alcohol.

¶8 On March 4, 2004, Probation Officer Bill Buzzell filed his presentence investigation

(PSI) with the District Court. The PSI detailed Hirt’s long criminal offense history,

including 17 misdemeanor convictions and three felonies, occurring in several states.

Buzzell recommended a 25-year sentence with 15 years suspended.

¶9 Sather reviewed the English report and was concerned about the Level 3 offender

recommendation in addition to mistakes she thought he had made. She had worked with

Scolatti in the past, and called himto determine whether he could do a second psychosexual

evaluation on Hirt. After their conversation, Scolatti told her that he thought Hirt could

qualify for a Level 2 designation. Sather obtained permission of the District Court for

Scolatti to conduct another evaluation.
4

¶10 In the meanwhile, Hirt had reviewed the PSI and informed Sather that he had one

felony conviction and not three as listed. Sather and her office investigated the

circumstances ofthe two questioned felony convictions, and obtained supporting documents

and records from other jurisdictions. They determined that Hirt was correct in that he had

only one felony conviction, and informed Buzzell. Buzzell issued an amended criminal

history report accurately reporting that Hirt had only one prior felony conviction. Buzzell

also reduced hissentence recommendation from25 yearsto 10 years, as provided in the plea

agreement.

¶11 When Scolatti completed his evaluation, he also recommended that Hirt bedesignated

as a Level 3 offender, agreeing with much ofthe English evaluation. Scolatti told Satherthat

whether Hirt had one prior felony or three would not affect his recommendation because of

the other significant factors including Hirt’s chemical dependency and mental health issues

and his deviant interest in young girls. At this point Sather determined that she could not call

Scolatti as a witness at sentencing because he agreed with English on most material points,

and because he additionally would testify that Hirt had a deviant interest in young girls.

¶12 At the sentencing hearing on April 22, 2004, Hirt changed his plea to guilty to theone

charge of sexual assault to comply with the requirement of § 46-12-204, MCA. Hirt again

expressed satisfaction with Sather’srepresentation and provided a factual basis for his guilty

plea. Sather noted Buzzell’s corrected criminal history to the court.

¶13 Evaluator English testified as to his Level 3 recommendation and the court received

his report. He testified that it was based upon a number of factors, including the results of

two risk assessment tests (“instruments”), in which Hirt scored as a high risk to reoffend on
5

one and a moderate risk on the other. English testified that his risk assessments were

completed with the three-felony history. Felony history is one of many factors that go into

the risk assessment tests, and some tests add points for any felony convictions while others

add points for successive convictions. English testified that he did not rescore the risk

assessment tests with the one-felony information and that while that might have changed the

result, he could not say that it would have.

¶14 English also testified that his Level 3 recommendation was further based on Hirt’s

history of drug and alcohol abuse, his inability to control his use, the likelihood that he

would continue to use and to offend, his movement from crimes against property to crimes

against people, and hisinconsistent accounts ofthe incidentsindicating a lack of credibility.

All these factors pointed to the likelihood of Hirt’s being unable to control his future

behavior toward females.

¶15 Hirt made a statement to the District Court expressing his sorrow for what had

happened, blaming his conduct on his drinking. The State urged a 10-year sentence with a

Level 3 designation, while Sather urged a Level 2 designation with a 10-year suspended

sentence.

¶16 Prior to sentencing, the State made representations to the District Court as to the

contents of Scolatti’s evaluation, including the conclusion that Hirt had a deviant sexual

interest in girls. Up to that point, Sather had been unaware that Scolatti had sent a copy of

his evaluation to the prosecutor. Scolatti’sreport was not placed into the record, and Sather

declined a recess to allow her to call him as a witness. She still believed that Scolatti’s
6

evaluation was more harmful to Hirt than the English evaluation and that he should not be

called as a witness.

¶17 The District Court sentenced Hirt to 10 years in accordance with the plea agreement

and designated him a Level 3 offender.

¶18 Sather filed a notice of appeal and withdrew as Hirt’s counsel when she got a jobwith

the Public Defender. Keithi Worthington substituted as Hirt’s counsel on appeal.

Worthington discussed the appeal with Hirt, and he urged her to raise issues regarding his

belief that erroneous felony conviction information had been used at sentencing.

Worthington researched the sentencing issue, interviewed Sather and Sather’s office

assistant, interviewed Scolatti, read the sentencing transcript, the PSI and the evaluations.

She determined from this review that there was no ground upon which to appeal that aspect

of the sentence.

¶19 Worthington concluded that the portion of the sentence imposing restitution and

requiring Hirt to pay for the cost of his court-appointed counsel were invalid and should be

appealed. She did so successfully, obtaining a decision fromthisCourt remandingthematter

for a re-sentencing. State v. Hirt, 2005 MT 285, 329 Mont. 267, 124 P.3d 147.

¶20 In November, 2006, Hirt filed a petition for postconviction relief and then an amended

petition in February, 2007, represented by attorneyRandall Lint. The petition contended that

the sentence had been based upon misinformation, that Sather had provided ineffective

assistance of counsel at sentencing, and that Worthington had provided ineffective assistance

of counsel on appeal.
7

¶21 The Hon.James Haynes, the same judge who took Hirt’s prior changed pleasandwho

sentenced him, held an evidentiary hearing on the petition on July 30, 2007. The parties

through counsel submitted post-hearing findings of fact and conclusions oflaw. After those

documents were filed, Hirt filed his own pleading with the District Court in which he

complained that none of his attorneys, includingLint, had raised issuesregarding the validity

of the risk assessment tests used by English and Scolatti. Hirt contended that the tests lack

credible scientific support, a discovery he had made doing research on line while in prison.

He also alleged that Lint refused to raise these issues for him because Lint said he was a

youth sports coach and did not want his name associated with a case involving sexual assault

on a minor. The District Court ultimately ruled that Hirt’s later filing was not timely, was

not properly before the court and was not considered.

¶22 On October 26, 2007, the District Court issued an opinion and order, including

extensive and detailed findings of fact and conclusions of law, denying Hirt’s petition for

postconviction relief. The court found that Hirt had not been sentenced upon misinformation

because the true number of prior felony convictions was clear prior to sentencing. The court

found that Sather had not provided ineffective assistance at sentencing in regard to English

and Scolatti, finding that she made reasoned, fact-based professional judgmentsin deciding

to not ask English to re-score his risk assessments and to not call Scolatti as a witness.

Specifically, the court found that if Scolatti had testified in accordance with his report, the

court might not have followed the plea agreement, resulting in a longer sentence. The court

found that Sather’s actions met an objective standard of reasonableness for legal

representation.
8

¶23 The District Court also found that Worthington had provided effective assistance of

counsel on the successful appeal to this Court. The court found that Worthington had not

“abandoned” Hirt and that her decisions on what issues to raise on appeal were made after

thorough research and investigation and that her representation was objectively reasonable.

This appeal followed.

STANDARD OF REVIEW

¶24 This Court reviews a district court’s denial of a petition for postconviction relief to

determine whether the district court’s findings of fact are clearly erroneous and its

conclusions oflaw are correct. Whitlow v. State, 2008 MT 140, ¶ 9, 343 Mont. 90, 183 P.3d

861. An issue of whether the district court violated a defendant’s constitutional rights at

sentencing isreviewed de novo to determine whether the district court’sinterpretation oflaw

is correct. State v. Phillips, 2007 MT 117, ¶ 11, 337 Mont. 248, 159 P.3d 1078. Ineffective

assistance of counsel claims present mixed questions of fact and law that thisCourt reviews

de novo. Whitlow, ¶ 9.

DISCUSSION

¶25 Whether Hirt was erroneously designated as a Level 3 sexual offender under § 46-23-

509, MCA, based upon misinformation. Hirt’s first issue is that he was sentenced based upon 

materially false information. A defendant is entitled under the United States and Montana 

Constitutions to due process protection against sentencing based upon misinformation. 

Phillips, ¶ 17. The defendant has the burden to show that the sentencing information was 

materially inaccurate. Phillips, ¶ 17. Where the sentencing court does not rely upon 
9

materially inaccurate information, the defendant is not entitled to resentencing on due

process grounds. Phillips, ¶ 17.

¶26 In the present case Judge Haynes sentenced Hirt and heard his petition for

postconviction relief. In both instances he heard the testimony of the witnesses and the

arguments of counsel. Judge Haynes was therefore in the best position to know whether the

sentence was based upon materially inaccurate misinformation. After careful consideration

of the petition for postconviction relief, Judge Haynes held that he had not relied upon

materially inaccurate misinformation in sentencing.

¶27 Judge Haynes knew at the time ofsentencing that Hirt had one prior felonyconviction

and not three as the original PSI had stated. He knew that Probation Officer Buzzell had

filed an amended PSI correcting the earlier misinformation, and that the corrected criminal

history had caused Buzzell to materially alter hissentencing recommendation in Hirt’sfavor.

Judge Haynes knew that the English psychosexual report had been premised upon thethreefelony information, and heard English testify that he could not say that changing the number

of felonies would make any difference in the outcome of the risk assessment tests. He also

heard English testify that the number of felonies is only one factor in the risk assessment

testing, and that the risk assessment testingwas only one of a number of factorsthat English

relied upon to reach his recommendation for a Level 3 offender designation.

¶28 English testified at sentencing that the Level 3 recommendation was based upon a

number of considerationsincludingHirt’s drug and alcohol abuse, his mental health history,

his misuse of prescription medication, his credibility, and his failure to assume responsibility

for his actions. The District Court was not bound by the recommendation for a Level 3
10

designation, and was required to and did make an independent decision on the issue after

considering the range of relevant and material factors presented in the sentencing record.

¶29 Where the district court does not rely on misinformation and the information

presented in the PSI is true, there is no error. Bauer v. State, 1999 MT 185, ¶ 24, 295 Mont.

306, 983 P.2d 955. We are persuaded that the District Court correctly concluded that Hirt

was not sentenced upon materially inaccurate misinformation and that his due processrights

were not violated.

¶30 Whether Hirt was denied effective assistance of counsel at sentencing, on direct

appeal and on postconviction relief. The right to counsel in criminal proceedings is

guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and

by Article II, Section 24 of the Montana Constitution. Whitlow, ¶ 10. This Court evaluates

claims of ineffective assistance of counsel under the test of Strickland v. Washington, 466

U.S. 668, 104 S. Ct. 2052 (1984). Under that test the defendant must first show that

counsel’s performance was seriously deficient and that the performance prejudiced the

defense to such an extent as to deprive the defendant of a fair trial. Strickland, 466 U.S. at

687, 104 S. Ct. at 2064. The proper measure of counsel’s performance is objective

reasonableness. Whitlow, ¶ 12. The reviewing court must carefully eliminate the distorting

effects of hindsight and must apply a strong presumption that counsel’s conduct falls within

the wide range of reasonable assistance and that it represents sound trial strategy. Whitlow,

¶¶ 15, 21. These same considerations apply to counsel on direct appeal. Dawson v. State,

2000 MT 219, ¶ 147, 301 Mont. 135, 10 P.3d 49.
11

¶31 The primary contention as to sentencing counsel Sather is that she should have

requested leave of court to have English re-score hisrisk assessment test to reflect Hirt’sone

felony conviction instead ofthree. Sather knew, because of her interview of Scolatti afterhe

completed his assessment, that reducing the felonies from three to one would not have

qualified Hirt for a Level 2 recommendation, especially with all of the other factors that the

evaluators considered in addition to the risk assessment tests. Further, English was familiar

with the risk assessment tests and testified that he did not know whetherthe different number

of felony convictions would have made any difference. With this factual background, it is

most likely that English would have again recommended a Level 3 designation a second

time, which would have only served to underscore the strength ofthe first recommendation.

It was objectively reasonable for Sather to conclude that a re-scoring would not have

changed the results and might have actually resulted in a worse situation for Hirt.

¶32 As to Scolatti, it is abundantly clear that Sather made an objectively reasonable

decision not to take advantage ofthe District Court’s offer to have a recess so that she could

call him to testify. Sather already knew that Scolatti would likely provide support for all of

English’s conclusions and would also add the very serious conclusion that Hirt had a

pathological attraction to young girls. She determined, as the District Court has

subsequently confirmed, that such testimony could have caused a deviation from the plea

agreement and a substantial increase in the agreed-to maximum of ten years.

¶33 Hirt argues that appeal counsel Worthington was ineffective because she failed to

raise the issue of sentencing misinformation on direct appeal. As explained above,

Worthington knew that Hirt wanted to raise this issue on appeal and so researched it
12

factually and as a matter oflaw. There islittle more that she could have done professionally

to armherself with information on thisissue prior to deciding not to raise it on appeal. And,

as we have held, her assessment that the sentencing misinformation allegation should not be

raised was the proper legal position. In addition, she successfully appealed for Hirt on the

two issues that she found to be sufficient to argue. We find that Worthington’s decisions

were professional and objectively reasonable.

¶34 Last, Hirt claims that attorney Lint filed to provide him with effective assistance of

counsel in the postconviction relief proceeding. Hirt’s allegations against Lint do not appear

in cognizable form anywhere in the record. They are contained only in conclusory

allegations that Hirt made in his pro se pleading, and the District Court excluded that

pleading from consideration. Hirt is attempting to bootstrap these contentions into the

petition for postconviction relief, avoiding the procedural bar of § 46-21-105(1)(b), MCA.

That section bars a second petition for postconviction relief unlessthe issuesraised could not

reasonably have been raised at the time of the first petition. Even on the face of Hirt’s

unsupported allegations about Lint’s conduct, he acknowledges that he knew the

circumstances he now alleges at the time ofthe evidentiary hearing on his amended petition

for postconviction relief. Hirt testified at the hearing on the amended petition and could have

raised any concerns he had about Lint’s representation at that time. He failed to do so.

¶35 The District Court is affirmed.

/S/ MIKE McGRATH
13

We concur:

/S/ JAMES C. NELSON

/S/ PATRICIA COTTER

/S/ W. WILLIAM LEAPHART

/S/ JIM RICE