No. 14937 INTHE SUPREPIIE COURT OF THE STATE OF MONTANA 1979

THE STATE OF MONTANA, Plaintiff and Respondent,

-vsGARY EUGENE RADI, Defendant and Appellant.

Appeal from: DistrictCourt 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

# 1mMr. 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 DistrictCourt of the SixthJudicial District, inand for the County of Sweet Grass, of the 

### crimeof burglary. The jury returned a verdict atthe 

### same time which acquitted appellant of the charge of theft. Appellant 

### was sentenced as a persistent offender to a 

### termof 50 years. Appeal 

### was taken to thisCourt. This Court, inStatev. 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 DistrictCourt for the purpose of resentencing appellant after a presentence report had been filed. Two issues areraised on the present appeal: 1. Was the presentence report prepared by the Board of Pardons and Paroles prejudicial to appellant inthis case? 2. Is there an inconsistency between the verdict returned by the jury of guiltyof Count I, the count of burglary, and of not guiltyof Count 11, theft? The firstissue isdirected towhether the presentence report prepared by the Board of Pardons and Paroles was prejudicial toappellant. Section 46-18-112, MCA, provides for a sentencing report as follows: "Whenever an investigation isrequired, the probation officer shall promptly inquire intothe characteristics, circumstances, needs, and potentialitiesof the defendant; his criminalrecord and socialhistory; 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. Alllocal and 

### statemental 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 inthe opinion of the court." Before proceeding to analyze each of the provisions in the report of the presentence investigation that 

### is alleged tobe inerror, 

### we

### willaddress some general comments 

### regarding such reports in the sentencingprocess. This Court has held that 

### a presentence investigation report "isa vital tool of the districtjudge in arriving at what 

### it considers a proper sentence." Statev. Radi, supra, 578 P.2d at1182, 35 St.Rep. at504. 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 18Cal.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 

### isbrought before the court for sentencing. People v. Chi KO Wong (1976) 18Cal.3d 698, 135 Cal.Rptr. 392, 557 P.2d 976. The sentencingjudge cannot be denied an opportunity toobtain information by imposing 

### strictrequirements or restricting theproceedings tothe rules of evidence applicable ata 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), 158Mont. 461, 493 P.2d 326; Statev.Harris (1972), 159Mont. 425, 498 P.2d 1222. It 

### is a general rule throughout this country thatwhen 

### matters contained ina report are contested by the defendant, the defendant has, ineffect, 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 Stateof Alaska, Nukapigak v. State (Alaska 1978), 576 P.2d 982, 983, held that failureon the part of the defendant tochallenge the accuracies of statements or tooffer contrary evidence 

### atthe 

### timeof sentencing 

### is fatal. "That factalone 

### is sufficient to support our decision to affirmhis sentences." Nukapigak, 576 P.2d at 983. Nukapigak reliedupon 

### a California decision, People v. Chi KO Wong, supra, and found that it 

### is

### a defendant's obligation tocomply with "procedures toestablish the claimed unreliability of materials properly submitted for the sentencing purposes; 

### a mere claim of invalidity 

### is insufficient." Nukapigak, 576 P.2d at984. A number of courts have held that, if a defendant does not present evidence orwitnesses tocontradict orotherwise rebut 

### materials ina probation report, he 

### is foreclosed from raising such issues on appeal. See Crowder, supra; Carter, supra. This state toa certain extent adopted the general rule inIn

### re Petition of Jerald M. Amor (1964), 143Mont. 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 inthe presentence investigation report. This Court declined tohear that argument reasoning thatsince the defendant was represented by competent counsel at sentencing, the defendant had an opportunity torefute or contradict the information in the report but chose not todo

SO. This case 

### ismuch likeAmor. Here, appellanthad the opportunity torefute 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 toofferno witnesses torebut or contradict any information in the report. In fact, appellantneither testified nor offered witnesses on his behalf. While counsel for appellantdidmake mention to the court of certainpoints in the report that he thought were inaccurate

or inconsistent, the court indicated that those matters would be taken into consideration inreaching 

### its decision. Appellant did not

### meethis affirmative duty of presenting evidence or testimony tocontradict or refute the matters alleged inthe report asobjectionable. Appellant 

### asserts that the report lacked any information 

### as to "characteristics, circumstances, needs and potentialities" of appellant. Wedo not agree. Taken as

### a whole, the report 

### is fullof information regarding appellant's characteristics and potential. Information of that nature 

### isnot only contained inappellant's criminal history, but alsocontained ininformation regarding his physical condition and description; his family and social background; his educational, vocational, and marital histories; and summarized inthe 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 

### meritto this contention.The report isa factual summary of appellant's criminal, physical, family, social and educational background. There isnothing on its face thatwould substantiate an allegation that the officer who presented 

### it was biased orprejudiced. Appellant next contends that 

### it was improper for the probation officer toinclude information about appellant's juvenile record, citing section 41-3-205, MCA, to support thatcontention. 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, Title41, do not pertain toproceedings for delinquents under the Youth CourtAct. The Youth Court Actdoes, however, contain 

### a provision regarding the confidentiality of the reports. Section 41-5- 604, MCA. It 

### is the general rule toallowjuvenile records as a part of presentence investigationreport ata sentencing hearing. See 47 Am.Jur.2d Juvenile Courts S56 at1029. The leading case inthis field 

### isHendrickson v. Myers (1958), 393 Pa. 224, 144A.2d 367, which held thatdepriving the courts of their right tobe informed of and toconsider the entirehistory 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 areunable to find any interpretation of a statute similar toMontana's, there are cases that have interpreted statutesregarding the use of juvenile records thathave a similar purpose to the Montana statute. Wash-ington has a statute thatprovides that an order of the court adjudicating a child delinquent shall inno case be deemed a conviction of a crime. Section 13.04-240, R.C.W. See Statev. Dainard (1975), 85 Wash.2d 624, 537 P.2d 760, a

case holding that this statute

### was broad enough in its intent topermit consideration of juvenile records in sentencing hearings. For courts thathave allowed the use of juvenile records inpresentence 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), 101Ariz. 118, 416 P.2d 551. The gravamen of the decisions allowing the sentencing judge touse the fulland complete reports of an individual's background inmaking the determination of sentence

was set forthby the United States Supreme Court: 

# ".

.. highly relevant--if not essential--to his selection of an appropriate sentence 

### is the possession of the fullest information possibleconcerning the defendant's lifeand characteristics. And modern concepts individualizing punishment have made 

### it allthe more necessary that the sentencingjudge not be denied the opportunity toobtain pertinent information by a requirement of rigid adherence of restrictive rulesof evidence properly applicable to the 

### trial 

# . 

# .. [probation] reports have been given a high value by conscientious judges who want to sentencepersons on the best available information rather than on guesswork and inadequate information 

# . .." Williams v. New York, supra, 337 U.S. at247. The same rationale can be applied to this case. We note that the purpose of the Montana statuteregardingjuvenile records is toprevent public dissemination of a juvenile record once that individual attains an age of majority. As presentence reports are required by 

### lawtobe sealed 

### as well, section 46-18-113(3), MCA, the public dissemination of material 

### is avoided. Atthe same 

### time the

### sentencing judge is afforded the opportunity to have a completepicture of the individualwho 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 isdoubtful that the information in the juvenile records contained in the reportplayed any significant role in the court's sentence. Appellant makes several other contentions concerning factual inconsistencies. One, that the reporthad an alleged escape from Pine Hills at the time when appellantwas 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 informationwith 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 informationregarding 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 reportdid notmake any recommendation

one way or the other regarding the sentencing,although appellant, for some reason, contends it did. The summary of the reportprovides no reason to return this matter to the DistrictCourt for resentencing. The reportwas 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 courtwith additional information as to his character or history. The reportwas, 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 allbut identical to the argument that

was raised inthe firstappeal. See State v. Radi, supra, 578 P.2d at 1176, 35 St.Rep. at496, where this Court ruled

on the contention asfollows: "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 tocharge defendant with both offenses. We note also that the jury was instructed to find defendant not guiltyof the theft if they found him guilty of burglary. Since it did so, 

### we see no prejudice to the defendant." While the argument here 

### isnot identical to the argument raised on the prior appeal, the central issuewas determined inthatopinion, and we find no 

### meritto this issue. A similar situationrecently

### was addressed by this Court inStatev. Holliday (19791, Mont. 

### - 

## , 598 P.2d 1132, 1135, 36 St.Rep. 1535, 1539, where this Court stated: 

# ".

. 

# . defendant 

### ispresenting inessence the same issue

### we have previously decided. The difference inthe two arguments 

### is superficial, not substantive. It 

### iswell 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 isbinding on the parties and courts, and cannot be relitigated in

### a subsequent appeal, subject to certainexceptions not pertinent here. [Citations omitted.] The defendant 

### isbound by our previous determination thatdefendant isnot entitled to

### a dismissal of 

### all charges." Here, as inHolliday, appellant isbound by the previous ruling and isnot entitled to

### reassert hisposition on this appeal. The judgment of the DistrictCourt 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 atthe 

### time of sentencing. I do not agree with allthe discussion of that issue however. I agree with the second issue on the grounds stated in themajority opinion.



## ................................. Chief Justice

Mr. Justice Daniel J. Shea willfilean opinion later.