No. 80-219 

IN THE 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: 1 4.1981' 
Mr. ~ustice Gene B. Daly delivered the Opinion of the Court. 

On September 20, 1979, defendant-appellant Johnny Garza 

Garrido was charged in the District Court of the Eighth 

Judicial District of the State of Montana with two counts of 

felony theft under section 45-5-301(1) (a), MCA. The county 

attorney and the defendant entered into a plea agreement. 

Defendant was subsequently sentenced to five years in the 

Montana State Prison 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" to each count. After various 

pretrial motions, 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 State would 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 at the time of sentencing that defendant had cooperated with the police and other authorities in 

this cause and in other causes pending before the District 

Court . 

Pursuant to the terms of the agreement on January 4, 

1980, defendant pleaded "guilty" to Count I. The ~istrict 

Court accepted defendant' s plea and the State dismissed 

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 report was submitted 

to the court. Defense counsel received a copy of the presentence report which stated, "all law enforcement agency 

records attached." The presentence report concluded by 

recommending that defendant receive a three-year deferred 

imposition of sentence. 

At the sentencing on February 5, 1980, pursuant to the 

terms of the plea agreement, the State advised the court 

that defendant had fully cooperated with police and law 

enforcement authorities and that his cooperation had resulted in a conviction in another case. Defense counsel also 

advised the court that defendant basically accepted the 

recommendations of the presentence report. The court then 

imposed sentence stating: "It is the judgment of this court 

you be sentenced to the Montana State Prison for a period of 

five years. For the purpose of eligibility of parole, you 

are found 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 that defendant was 

in the business of racket-style household thefts. Defendant, through his counsel, then moved the court in a combined motion to reconsider the sentence and/or to withdraw 

his "guilty" plea. The motion was based on grounds that the 

article in the Tribune articulated the court's reasoning for 

imposing the sentence, whereas no such reasons were articulated in open court before defendant and his counsel. The 

reasons given for imposition of the sentence indicated that 

the court obtained information in regard to this case from 

sources other than the facts and matters contained in the 

court file and the record generated in open court. 
A hearing on the motion 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 to ask the court questions in regard to the information upon which it based its sentencing decision. Defense 

counsel, having assumed that police investigative reports 

were not included within the term "all law enforcement 

agency records," asked the court how it obtained information 

that defendant was involved in five burglaries 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. At that time defense 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 are generally obtained 

by discovery. 

The combined motion was thereafter denied. 

The issues presented on appeal are: 

1. Whether the District Court abused its discretion by 

imposing sentence and judgment without first articulating 

the basis for its decision. 

2. Whether the failure to provide defendant with all 

information supplied to the court in the presentence report 

denied defendant the right of effective assistance of 

counsel. 

A sentencing judge is vested with discretionary power 

to determine the extent of punishment which may be imposed. 

Petition of Amor (1963), 143 Mont. 305, 389 P.2d 54. In the 
instant case, defendant was charged with and pleaded guilty 

to committing the crime of felony theft and was sentenced to 

five years in the State Prison. 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 is within the limits provided by statute, 

it is not an abuse of discretion. State v. Mann (1976), 169 

Mont. 306, 546 P.2d 515; State v. Gussenhoven (1944), 116 

Mont. 350, 152 P.2d 876. The sentence which defendant 

received was not an abuse of discretion. 

Defendant, however, challenges not so much the sentence 

as the manner in which it was determined. The foundation of 

his challenge is State v. Stumpf (1980), Mont. , 

609 P.2d 298, 37 St-Rep. 673, which states that a trial 

court is required to articulate the basis upon which its 

sentencing discretion is exercised. Defendant alleges that 

by not stating its reasons for imposing the five-year sentence, the trial court abused its discretion. The holding 

of Stumpf, however, has prospective application only. It was 

not decided until April 3, 1980, some time after this defendant was sentenced on February 5, 1980. Yet, by granting a 

motion for reconsideration, it would appear that defendant 

had access to any facts he may desire. 

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

burden of the appellant to overcome such a presumption. 

State v. Lane, Jr. (1977), 175 Mont. 225, 573 P.2d 198; 

State ex rel. Stevens v. District Court (1976), 170 Mont. 

22, 550 P.2d 385, 388. Defendant here has failed to overcome the presumption and, thus, has failed to meet his 

burden of proof. 
Defendant alleges that he was denied the right to effective assistance of counsel because he was not provided 

with all information which was supplied to the court in the 

presentence report. However, the transcript record reveals 

that he was in possession of all the police reports. This 

discrepancy illustrates that any 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 is no 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 in a "business" or a series of steal-to-order 

thefts or that he 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 in part and 

dissenting in part: 

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. 

S tumpf ( 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. Justice Daniel J. Shea dissents and will file a dissenting 

opinion later. 

This cause was submitted prior to January 5, 1981.