No. 87-176 INTHE SUPREME COURT OF THE STATE OF MONTANA 1987

STATE OF MONTANA, Plaintiffand Respondent,

### -vsROBERT BRADFORD, Defendantand Appellant.

APPEAL FROM: District Court of the Eighth JudicialDistrict, In and for the County of Cascade, TheHonorableR. D. McPhillips,Judgepresiding. COUNSELOF RECORD: ForAppellant: John Keith, Public Defender, Great Falls,Montana For Respondent: Hon. Mike Greely,Attorney General, Helena,Montana Judy Browning,Asst. Atty. General,Helena Patrick L. Paul,CountyAttorney,Great Falls,Montana AntoniaMarra & Barbara Bell, DeputyCounty Attorneys

Submitted on Briefs: Aug. 6,1987 Decided: September 29, 1987

Filed: 

### SEP

## 29

## 1987

ClerkMr. Justice Fred J. Weber delivered the Opinion of the Court.
Defendant, Mr. Bradford, pled guilty to six felony counts relating to sexual abuse of his daughters. In sentencing, the District Court for the Eighth Judicial District, Cascade County, relied upon the recommendationsof a psychologist who examined Mr. Bradford. Mr. Bradford appeals. We affirm. The issue is whether the District Court abused its discretion in refusing Mr. Bradford's request for a second psychologicalevaluation. Mr. Bradford was charged by information with sexual assault (3 counts)

### , tampering with witnesses, tampering with physical evidence, and sexual intercourse without consent. On the date scheduled for trial, he pled guilty on all counts. In exchange for Mr. Bradford's guilty pleas, the County Attorney's office agreed to rely upon the sentencing recommendations of the Presentence Report and a psychologist's evaluation, both of which would be prepared after entry of the plea. Mr. Bradford was examined by Phillip Russell, Ph.D., of the Yellowstone Treatment Program in Billings,Montana. Dr. Russell's report stated that 

### "[i] n the examiner's experience with over 500 cases of sexual abuse, this stands as a hallmark ofperversity and degredation." Italso stated thatMr. Bradford exhibited almost no remorse for his acts and "is absolutely not amenable to treatment in an outpatient community based program." Mr. Bradford was provided with a copy of the report prior to sentencing. At the sentencing hearing, the defense moved for a continuance so that Mr. Bradford could obtain a second psychological evaluation at his own expense. The court denied themotion, and sentencedMr. Bradford to 20 years on each of

### the sexual assault charges, 10 years on the charges of tampering with witnesses and evidence, and 30 years on the charge of sexual intercourse without consent, all to be served concurrently.
Did the District Court abuse its discretion in refusing Mr. Bradford's request for a secondpsychological evaluation? Mr. Bradford argues that because Dr. Russell's report was extremely negative, the District Court abused its discretion when it refused to allow him to obtain another psychological report at his own expense. He also argues that Dr. Russell's report is inherently prejudiced because Dr. Russell saw two of Mr. Bradford's children prior to evaluating Mr. Bradford. His argument on the second point is sketchy, and we note that at the sentencing hearing the attorney for the State said that she believed the children were interviewed after, notbefore,Mr. Bradford. Section 46-18-112, 

### MCA, allows a mental examination to be included in a presentence investigation "when it is desireable in the opinion of the court." That section leaves to the district court's discretion the decisions on mental examinations for sentencingpurposes. Mr. Bradford has shown nothing that would require a second mental examination in this case. Dr. Russell's report contains extensive quotations from statementsby Mr. Bradford's daughters, which Dr. Russell aptly summarizes the statements as descriptions of pornographic sexual abuse spanning a period of approximately 14 years. That the report is highly unfavorable to Mr. Bradford ismore a result of the horrifying statementsof the childrenthan of any commentsby Dr. Russell. Mr. Bradford's lack of remorse about the crimes with which he was charged was demonstrated in his statement to the District Court that "I 

### firmly don't believe that I 

### am the terrible person thedoctor portrays me to be, 

### I really don't." The attitude conveyed in that statement when viewed in light ofMr. Bradford's own admissions regarding the crimes abundantly supports Dr. Russell's sentencing recommendation. Further, as the District Court noted, it was the defense which selected Dr. Russell to perform thepsychological evaluation. We conclude that it was within the District Court's discretion to deny Mr. Bradford's request for a second psychological evaluation. ~ffirmed.

We concur: / 

# /&
Chief 

# -T-v,f
Justice


# #e Justices