No. 80-219 INTHE SUPREME COURT OF THE STATE OF MONTANA 1980

THE STATE OF MONTANA, Plaintiff and Respondent,

JOHNNY GARZA GARRIDO, Defendant and Appellant.

Appeal from: District Court of the Eighth Judicial District, In and for the County of Cascade. Honorable John McCarvel, Judge presiding. Counsel of Record: For Appellant: Lawrence A. Anderson, Public Defender, argued,

Great Falls, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Mark J. Murphy argued, Assistant Attorney General,

Helena, Montana Randall Snyder argued, Deputy County Attorney, Great

Falls, Montana

-- Submitted: November 18, 1980 Decided: 

## JAN 

## 14'I981 Filed: 

## 14.1981'Mr. ~ustice Gene B. Daly delivered the Opinion of the Court. On September 20, 1979, defendant-appellant Johnny Garza Garrido was charged inthe District Court of the Eighth Judicial Districtof the Stateof Montana with two counts of felony theftunder section 45-5-301(1) (a),MCA. The county attorney and the defendant entered into a plea agreement. Defendant was subsequently sentenced to fiveyears in the Montana StatePrison and designated a nondangerous offender. Defendant appeals. Defendant 

### was charged with two counts of felony theft under section 45-5-301 

### (1) (a)

## ,MCA. Thereafter, defendant entered 

### a plea of "not guilty" toeach count. After various pretrialmotions, the county attorney and defendant entered into a plea agreement on January 

### 4, 1980. The 

### terms of the agreement were: (1)defendant would plead "guilty" to Count I, felony theft; (2) the Statewould dismiss Count I1 of 

### its information, also felony theft; (3) defendant would recommend to the court that he receive a deferred imposition of sentence; 

### (4) the county attorney would make no recommendation as to sentencing; and (5) the county attorney would indicate to the court atthe 

### timeof sentencing thatdefendanthad cooperated with the police and other authorities in this cause and inother causes pending before the District Court

# . Pursuant to the 

### termsof the agreement on January 

### 4, 1980, defendant pleaded "guilty" toCount I. The ~istrict Court accepted defendant's plea and the Statedismissed Count 11 of the information. The court 

### set sentencing for February 5, 1980. Defendant then submitted himself to the probation and parole department for a presentence interview and investigation.

### Prior to sentencing a presentence reportwas submitted to the court. Defense counsel received a copy of the presentence reportwhich stated, "all law enforcement agency records attached." The presentence report concluded by recommending thatdefendant receive a three-year deferred imposition of sentence. At

### the sentencing on February 5, 1980, pursuant to the terms of the plea agreement, the Stateadvised the court thatdefendant had fullycooperated with police and law enforcement authorities and that his cooperationhad resulted ina conviction inanother case. Defense counsel also advised the court thatdefendant basically accepted the recommendations of the presentence report. The court then imposed sentence stating: "Itis 

### the judgment of thiscourt you be sentenced to theMontana StatePrison for a period of fiveyears. For the purpose of eligibility of parole, you
arefound to be a nondangerous offender. Anything further?" "NO, 

### sir." The following day, February 6, 

### 1980, the Great Falls Tribune printed a story stating the court's reasons for imposing the sentence. The court stated thatdefendant was inthe business of racket-style household thefts. Defendant, through his counsel, then moved the courtina combined motion toreconsider the sentence and/or towithdraw his "guilty" plea. The motion 

### was based on grounds that the articleinthe Tribune articulated the court's reasoning for imposing the sentence, whereas no such reasons 

### were arti

### culated inopen courtbefore defendant and his counsel. The

reasons given for imposition of the sentence indicated that the courtobtained information inregard to this case from

sources other than the factsand matters contained inthe court fileand the record generated inopen court.A hearing on themotion to reconsider was held on February 11, 1980. The author of the presentence report

### was called as a witness. The court then authorized defense counsel toask the court questions inregard to the information upon which itbased 

### its sentencing decision. Defense counsel, having assumed thatpolice investigative reports



### were not included within the term "all

### lawenforcement agency records," asked the court how 

### it obtained information thatdefendant was involved infiveburglaries and three thefts. The court then asked defense counsel whether it had

a copy of the police reports. Defense counsel advised that he did have copies of the police reports, and the court then exhibited copies of the police reports contained in

### its file. Atthat 

### timedefense counsel learned that the court routinely received copies of police investigative reports which 

### were not generally attached to the copy of the presentence report delivered to the defense counsel, but defense counsel admits that his copies aregenerally obtained by discovery. The combined motion was thereafter denied. The issuespresented on appeal are: 1. Whether the DistrictCourt abused 

### itsdiscretion by imposing sentence and judgment without firstarticulating the basis for 

### its decision. 2. Whether the failure toprovide defendant with 

### all information supplied to the court inthe presentence report denied defendant the right of effectiveassistance of counsel. A sentencing judge 

### isvested with discretionarypower todetermine the extent of punishment which may be imposed. Petition of Amor (1963), 143Mont. 305, 389 P.2d 54. In theinstant case, defendant was charged with and pleaded guilty to committing the crime of felony theft and 

### was sentenced to fiveyears inthe StatePrison. The maximum sentence which may be imposed for the crime of felony theft is ten years. Section 45-6-301, MCA. This Court has consistently held that if 

### a sentence iswithin the 

### limitsprovided by statute, 

### it isnot an abuse of discretion. Statev. Mann (1976), 169 Mont. 306, 546 P.2d 515; Statev. Gussenhoven (1944), 116 Mont. 350, 152 P.2d 876. The sentence which defendant received was not an abuse of discretion. Defendant, however, challenges not somuch the sentence

asthe manner inwhich it was determined. The foundation of his challenge 

### is Statev. Stumpf (1980), Mont. 

## , 609 P.2d 298, 37 St-Rep. 673, which 

### states that a trial court 

### isrequired toarticulate the basis upon which 

### its sentencing discretion 

### is exercised. Defendant alleges that by not stating 

### its reasons for imposing the five-year sentence, the trialcourt abused 

### its discretion. The holding of Stumpf, however, has prospective application only. Itwas not decided untilApril 3, 1980, some 

### timeafter this defendant

### was sentenced on February 5, 1980. Yet, by granting 

### a motion for reconsideration, 

### it would appear that defendant had 

### access toany factshe may desire. It 

### iswell settled that this Court presumes the correctness of the lower court's order on appeal. It 

### is the burden of the appellant toovercome such 

### a presumption. Statev. Lane, Jr. (1977), 175Mont. 225, 573 P.2d 198; State ex rel. Stevensv. DistrictCourt (1976), 170 Mont. 22, 550 P.2d 385, 388. Defendant here has failed to overcome the presumption and, thus, has failed tomeet his burden of proof.Defendant alleges thathe was denied the right to effective assistance of counsel because he was not provided with allinformation which was supplied to the court in the presentence report. However, the transcript record reveals thathe was inpossession of all the police reports. This discrepancy illustrates thatany claimed ineffectiveness was not due to the court's withholding of information. Rather, defense counsel failed to inspect the reports and, thus, proceeded on an incorrect assumption of what was contained therein. There isno evidence that defendant was prejudiced by his counsel's failure to inspect the presentence reports. Defendant has never alleged or attempted to prove that he did not engage ina "business" or a series of steal-to-order thefts or thathe did not commit five the£

### ts and three burglaries. These were the reasons sentence was imposed, and in the absence of any prejudice caused thereby, relief cannot be granted. Affirmed.

# -

Justice

We concur:Mr. Chief Justice Frank I. Haswell, concurring inpart and dissenting inpart:

While I concur with the result reached by the majority with regard 

### to the right 

### to counsel issue, I must respectfully dissent from the majority opinion concerning the issue of abuse of discretion. The majority decline 

### to apply the requirement of State v. Stumpf (1980)

## , Mont

# . , 609 P.2d 298, 37 St.Rep. 673, that the 

### trial court must articulate the reasons underlying 

### its sentence determination. The holding of Stumpf expressly 

### states that it 

### is to have prospective application only, and for this reason the majority find the 

### case inapplicable. Yet the requirement 

### set forth in Stumpf was applied 

### to the defendant therein, resulting in the setting aside of a sentence imposed by 

### a district judge who was unaware of the requirement. If this defendant's appeal had been presented 

### to us prior 

### to the Stumpf case, 

### we would have applied the same analysis and reached the 

### same result. The reasons for requiring district judges to articulate the basis for their sentencing decisions 

### still exist, regardless of what Stumpf 

### states with regard 

### to prospective application. The issues are identical. The analysis should be identical and the result should be identical.

Chief Justice

Mr. JusticeDaniel J. Shea dissents and will filea dissenting opinion later.

This cause

### was submitted prior toJanuary 5, 1981.