No. 14937 

IN THE SUPREPIIE COURT OF THE STATE OF MONTANA 

1979 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsGARY EUGENE RADI, 

Defendant and Appellant. 

Appeal from: District Court of the Sixth Judicial District, 

Honorable W. W. Lessley, Judge presiding. 

Counsel of Record: 

For Appellant: 

McKinley Anderson, Bozeman, Montana 

For Respondent: 

Honorable Mike Greely, Attorney General, Helena, 

Montana 

Submitted on Briefs: October 14, 1979 

Decided: DEC28 1m 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

This is an appeal resulting from a resentencing of 

appellant to a sentence of 50 years. 

Appellant was convicted in the District Court of the 

Sixth Judicial District, in and for the County of Sweet 

Grass, of the crime of burglary. The jury returned a verdict at the same time which acquitted appellant of the 

charge of theft. 

Appellant was sentenced as a persistent offender to a 

term of 50 years. Appeal was taken to this Court. This 

Court, in State v. Radi (1978), Mont. , 578 P. 2d 

1169, 35 St.Rep. 489, affirmed the issue raised on appeal in 

favor of the State, but held that since the sentence pronounced was done without a presentence investigation, returned the case to the District Court for the purpose of 

resentencing appellant after a presentence report had been 

filed. 

Two issues are raised on the present appeal: 

1. Was the presentence report prepared by the Board of 

Pardons and Paroles prejudicial to appellant in this case? 

2. Is there an inconsistency between the verdict 

returned by the jury of guilty of Count I, the count of 

burglary, and of not guilty of Count 11, thef t? 

The first issue is directed to whether the presentence 

report prepared by the Board of Pardons and Paroles was 

prejudicial to appellant. Section 46-18-112, MCA, provides 

for a sentencing report as follows: 

"Whenever an investigation is required, the probation officer shall promptly inquire into the 

characteristics, circumstances, needs, and potentialities of the defendant; his criminal 
record and social history; the circumstances of 

the offense; the time the defendant has been in 

detention; and the harm to the victim, his immediate family, and the community. All local 

and state mental and correctional institutions, 

courts, and police agencies shall furnish the 

probation officer, on request, the defendant's 

criminal record and other relevant information. 

The investigation shall include a physical and 

mental examination of the defendant when it is 

desirable in the opinion of the court." 

Before proceeding to analyze each of the provisions in 

the report of the presentence investigation that is alleged 

to be in error, we will address some general comments regarding such reports in the sentencing process. 

This Court has held that a presentence investigation 

report "is a vital tool of the district judge in arriving at 

what it considers a proper sentence." State v. Radi, supra, 

578 P.2d at 1182, 35 St.Rep. at 504. The primary function 

of the presentence investigation is to assist the judge in 

making his determination as to the disposition after conviction. People v. Edwards (1976)r 18 Cal.3d 796, 135 

Cal.Rptr. 411, 557 P.2d 995. The probation report is generally a proper source of information upon which judicial 

discretion can be exercised when a defendant is brought 

before the court for sentencing. People v. Chi KO Wong 

(1976) 18 Cal.3d 698, 135 Cal.Rptr. 392, 557 P.2d 976. The 

sentencing judge cannot be denied an opportunity to obtain 

information by imposing strict requirements or restricting 

the proceedings to the rules of evidence applicable at a 

trial. Thus, hearsay and other matters are acceptable in a 

presentence report. Williams v. New York (1949), 337 U.S. 

241, 247, 69 S.Ct. 1079, 93 L.Ed. 1337. 

Montana has long allowed the use of reports of presentence investigations for sentencing purposes. See State 

v. Karathanos (1972), 158 Mont. 461, 493 P.2d 326; State v. 
Harris (1972), 159 Mont. 425, 498 P.2d 1222. 

It is a general rule throughout this country that when 

matters contained in a report are contested by the defendant, the defendant has, in effect, an affirmative duty to 

present evidence showing the inaccuracies contained in the 

report. Crowder v. State (Okla. 1974), 518 P.2d 890; People 

v. Carter (1974), 186 Colo. 391, 527 P.2d 875. A recent 

Supreme Court case from the State of Alaska, Nukapigak v. 

State (Alaska 1978), 576 P.2d 982, 983, held that failure on 

the part of the defendant to challenge the accuracies of 

statements or to offer contrary evidence at the time of 

sentencing is fatal. "That fact alone is sufficient to 

support our decision to affirm his sentences." Nukapigak, 

576 P.2d at 983. 

Nukapigak relied upon a California decision, People v. 

Chi KO Wong, supra, and found that it is a defendant's 

obligation to comply with "procedures to establish the 

claimed unreliability of materials properly submitted for 

the sentencing purposes; a mere claim of invalidity is 

insufficient." Nukapigak, 576 P.2d at 984. A number of 

courts have held that, if a defendant does not present 

evidence or witnesses to contradict or otherwise rebut 

materials in a probation report, he is foreclosed from 

raising such issues on appeal. See Crowder, supra; Carter, 

supra. 

This state to a certain extent adopted the general rule 

in In re Petition of Jerald M. Amor (1964), 143 Mont. 479, 

389 P.2d 180, where the defendant, on a petition for a writ, 

alleged that he was not given the opportunity to refute 

evidence contained in the presentence investigation report. 

This Court declined to hear that argument reasoning that 
since the defendant was represented by competent counsel at 

sentencing, the defendant had an opportunity to refute or 

contradict the information in the report but chose not to do 

SO. 

This case is much like Amor. Here, appellant had the 

opportunity to refute or contradict the information that was 

contained in the report. Both appellant and his counsel 

were presented with a copy of the report prior to the hearing. Appellant chose to offer no witnesses to rebut or 

contradict any information in the report. In fact, appellant neither testified nor offered witnesses on his behalf. 

While counsel for appellant did make mention to the court of 

certain points in the report that he thought were inaccurate 

or inconsistent, the court indicated that those matters 

would be taken into consideration in reaching its decision. 

Appellant did not meet his affirmative duty of presenting 

evidence or testimony to contradict or refute the matters 

alleged in the report as objectionable. 

Appellant asserts that the report lacked any information as to "characteristics, circumstances, needs and potentialities" of appellant. We do not agree. Taken as a 

whole, the report is full of information regarding appellant's characteristics and potential. Information of that 

nature is not only contained in appellant's criminal history, but also contained in information regarding his physical condition and description; his family and social 

background; his educational, vocational, and marital histories; and summarized in the conclusion of the report. 

Appellant next alleges that the report to a large 

extent shows bias and prejudice on behalf of the officer 

presenting the report. We find no merit to this contention. 
The report is a factual summary of appellant's criminal, 

physical, family, social and educational background. There 

is nothing on its face that would substantiate an allegation 

that the officer who presented it was biased or prejudiced. 

Appellant next contends that it was improper for the 

probation officer to include information about appellant's 

juvenile record, citing section 41-3-205, MCA, to support 

that contention. However, section 41-3-205, MCA, does not 

apply to the juvenile record of those youths under the 

delinquency provisions of the juvenile law, commonly known 

as the Youth Court Act. That section is contained in the 

chapter of juvenile law concerned only with dependent and 

neglect situations. The provisions of Chapter 3, Title 41, 

do not pertain to proceedings for delinquents under the 

Youth Court Act. 

The Youth Court Act does, however, contain a provision 

regarding the confidentiality of the reports. Section 41-5- 

604, MCA. 

It is the general rule to allow juvenile records as a 

part of presentence investigation report at a sentencing 

hearing. See 47 Am.Jur.2d Juvenile Courts S56 at 1029. The 

leading case in this field is Hendrickson v. Myers (1958), 

393 Pa. 224, 144 A.2d 367, which held that depriving the 

courts of their right to be informed of and to consider the 

entire history and background of a person subject to sentence may result in sentences that are unjust and unfair to 

both society and the defendant. 

While we are unable to find any interpretation of a 

statute similar to Montana's, there are cases that have 

interpreted statutes regarding the use of juvenile records 

that have a similar purpose to the Montana statute. Wash- 
ington has a statute that provides that an order of the 

court adjudicating a child delinquent shall in no case be 

deemed a conviction of a crime. Section 13.04-240, R.C.W. 

See State v. Dainard (1975), 85 Wash.2d 624, 537 P.2d 760, a 

case holding that this statute was broad enough in its 

intent to permit consideration of juvenile records in sentencing hearings. For courts that have allowed the use of 

juvenile records in presentence investigation reports see 

Young v. State (Okla. 1976), 553 P.2d 192; People v. McFarlin 

(1973), 389 Mich. 557, 208 N.W.2d 504; State v. Fierro 

(1966), 101 Ariz. 118, 416 P. 2d 551. 

The gravamen of the decisions allowing the sentencing 

judge to use the full and complete reports of an individual's background in making the determination of sentence 

was set forth by the United States Supreme Court: 

". . . highly relevant--if not essential--to 

his selection of an appropriate sentence is 

the possession of the fullest information possible concerning the defendant's life and characteristics. And modern concepts individualizing 

punishment have made it all the more necessary 

that the sentencing judge not be denied the opportunity to obtain pertinent information by a 

requirement of rigid adherence of restrictive 

rules of evidence properly applicable to the 

trial . . . [probation] reports have been given 

a high value by conscientious judges who want to 

sentence persons on the best available information rather than on guesswork and inadequate 

information . . ." Williams v. New York, supra, 

337 U.S. at 247. 

The same rationale can be applied to this case. 

We note that the purpose of the Montana statute regarding juvenile records is to prevent public dissemination of a 

juvenile record once that individual attains an age of 

majority. As presentence reports are required by law to be 

sealed as well, section 46-18-113(3), MCA, the public dissemination of material is avoided. At the same time the 
sentencing judge is afforded the opportunity to have a 

complete picture of the individual who is before him for 

sentencing. There would seem to be no other purpose in 

maintaining the sealed records of the youth court over a 

period of at least ten years if they were not to be used in 

considering the sentencing of an individual later as an 

adult. See Young v. State, supra, where the Oklahoma court 

used that rationale in allowing the admission of the juvenile records. 

In this case, appellant was 34 years of age at the time 

of sentencing. The report indicates an extensive criminal 

record, subsequent to appellant's juvenile record. The 

juvenile record was compiled long before the Youth Court Act 

was passed in 1974. Considering the report as a whole, it 

is doubtful that the information in the juvenile records 

contained in the report played any significant role in the 

court's sentence. 

Appellant makes several other contentions concerning 

factual inconsistencies. One, that the report had an alleged escape from Pine Hills at the time when appellant was 

incarcerated in the state prison; two, that the report 

concerned appellant's military record when he contended that 

he had no such record; and three, that the report laid some 

significance to information regarding the fact that he was 

acquitted of Count I1 of the information with which he was 

charged at trial, These matters were brought to the attention of the trial judge, and we can presume that the trial 

judge was capable of giving appropriate weight to unconfirmed and inconsistent matters contained in the presentence 

report. See State v. McManus (19731, 12 Ore-APP- 84, 504 

P.2d 1046. 
Appellant next alleges that the report is void of 

information regarding harm to the victims and immediate 

family or the community. However, the charge itself in this 

case, which is set forth in the official version of the 

crime section of the report, does contain that information. 

Also, the sentencing and trial judge in this case was well 

aware of that information. See State v. James (1977), 223 

Kan. 107, 574 P.2d 181. 

We note in summary that the entire report is consistent 

with the purposes and rationale for requiring a presentence 

investigation. The report did not make any recommendation 

one way or the other regarding the sentencing, although 

appellant, for some reason, contends it did. The summary of 

the report provides no reason to return this matter to the 

District Court for resentencing. The report was properly 

used by the sentencing judge and provided him with a fair 

objective review of appellant's history and meets all of the 

rationale applied by courts for the use of such reports. 

Appellant made no attempt to present witnesses to contradict 

any of the provisions contained in the report or to provide 

the court with additional information as to his character or 

history. The report was, we find, properly applied in this 

case. Its use provides no basis to remand for a further 

resentencing hearing. 

The second issue raised by appellant concerns the 

inconsistency of the verdicts on the two counts of the 

information charging appellant with burglary and theft. He 

urges that, since he was acquitted on the charge of theft, 

the conviction of burglary is inconsistent and therefore 

must be reversed. 
This argument is all but identical to the argument that 

was raised in the first appeal. See State v. Radi, supra, 

578 P.2d at 1176, 35 St.Rep. at 496, where this Court ruled 

on the contention as follows: 

"Defendant next contends that the theft charge 

should have been dismissed because it arose from 

the same transaction as the burglary and the defendant could not be charged with two offenses. 

However, different elements must be proven for 

the charge of theft than for a charge of burglary 

and we cannot see error to charge defendant with 

both offenses. We note also that the jury was 

instructed to find defendant not guilty of the 

theft if they found him guilty of burglary. Since 

it did so, we see no prejudice to the defendant." 

While the argument here is not identical to the argument raised on the prior appeal, the central issue was 

determined in that opinion, and we find no merit to this 

issue. 

A similar situation recently was addressed by this 

Court in State v. Holliday (19791, Mont. - , 598 P. 2d 

1132, 1135, 36 St.Rep. 1535, 1539, where this Court stated: 

". . . defendant is presenting in essence the 

same issue we have previously decided. The 

difference in the two arguments is superficial, 

not substantive. It is well established, that 

where a decision has been reached by this 

Court on a particular issue between the same 

parties in the same case such decision is binding on the parties and courts, and cannot be 

relitigated in a subsequent appeal, subject to 

certain exceptions not pertinent here. [Citations omitted.] The defendant is bound by our 

previous determination that defendant is not 

entitled to a dismissal of all charges." 

Here, as in Holliday, appellant is bound by the previous ruling and is not entitled to reassert his position on 

this appeal. 

The judgment of the District Court is affirmed. 
We concur: 

C ief Justice 

,,< P /? 

--- -. '. - 

I Justices ,- 

8 

Mr. Chief Justice Frank I. Haswell specially concurring: 

I concur in the result of the case. 

On the first issue I concur on the grounds that the 

defendant cannot attack the contents of the presentence report 

because he did not introduce any rebutting evidence at the time 

of sentencing. I do not agree with all the discussion of that 

issue however. 

I agree with the second issue on the grounds stated in 

the majority opinion. 

................................. Chief Justice 

Mr. Justice Daniel J. Shea will file an opinion later.