No. 84-208 

IN THE SUPREFILE COURT OF THE STATE OF MONTANA 

1984 

STATE OF MONTANA, 

Plaintiff and Respondent, 

HARVEY HINTZ and KENNETH 

SCHAFER, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Second Judicial District, 

In and for the County of Silver Bow, 

The Honorable Robert Boyd, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

W. M. Hennessey, Butte, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Robert McCarthy, County Attorney, Butte, Montana 

Submitted on Briefs: August 9, 1984 

Decided: November 20, 1984 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the 

Court. 

Defendants pleaded guilty to deliberate homicide in 

connection with the robbery of Community Ga.s Station in 

Butte. Without a presentence report, the District Court of 

Silver Bow County on November 12, 1975 sentenced each defendant to 100 years in prison. On September 20, 1982 defendants filed a petition for post-conviction relief. The 

denial of the petition is appealed. We affirm the District 

Court. 

The issues are: 

I. Did the District Court err in not ordering a presentence investigation report prior to sentencing the 

defendants? 

2. Did the District Court enter sufficient findings as 

to the 100-year sentences for the crime of deliberate 

homicide? 

3. Did the District Court deny the petition based on an 

erroneous belief that the sentencing judge had more information available than the record reflects? 

On November 28, 3.974 the two defendants were charged 

with the crimes of deliberate homicide and robbery. Almost 

one year later, on November 12, 1975, both defendants accepted a plea bargain under which the county attorney recommended 

the dropping of the robbery charge but made no recommendation 

as to the sentence on the deliberate homicide charge. Following the dropping of the robbery charge on motion of the 

county attorney, the District Court carefully questioned both 

defendants and determined that each of them understood that 

they were changing their pleas of not guilty to guilty, that 

there was no pressure upon them to do so, and that the maximum sentence on the charge of deliberate homicide was 100 
years. The two defendants were represented by three attorneys during the proceedings. The District Court found no 

reason for a pretrial investigation and no objection was made 

by any of the attorneys. 

Two attorneys spoke on behalf of the defendants prior to 

sentencing. The attorney speaking for Hintz emphasized that 

Hintz was 19 years of age at the time of the commission of 

the crime; he was without a high school degree; he admitted 

to being an alcoholic and drug addict; he recognized the 

gravity of the crime, and the seriousness and tragedy of his 

early involvement with drugs and alcohol; he had never been 

brought before a district court on any felony charge; on the 

night of the murder, as stated to the psychologist and psychiatrist at Warm Springs, he claimed to have been extremely 

intoxicated and under the influence of both alcohol and 

hallucinogenic drugs; he was extremely susceptible to suggestion; and his act was therefore not voluntary. He further 

argued that 100 years imprisonment would do nothing but harm 

and disturb him. 

The attorney representing Schafer emphasized the sorrow 

on the part of Schafer; Schafer's limited formal education 

through only the eighth grade; Schafer's lack of skills with 

which to acquire a steady job; his early addiction to drugs; 

he was 19 at comission of the crimes; he had never been 

charged with a felony; he committed the offense under a 

combination of hallucinogenic drugs and excessive alcohol; in 

the opinion of Schafer's psychiatrist, Dr. Murphy, it is 

unlikely or impossible that Schafer could have formed specific intent to commit any crime; he is a young first offender 

with good chances for rehabilitation; and the interests of 

society would not be furthered by keeping him in prison for 

the rest of his life. 
Following that presentation, the sentencing judge stated 

that drugs and alcohol were not mitigating factors in this 

case and ordered prison confinement for 100 years. 

Defendants applied to the Sentence Review Division for a 

reduction of sentence, but the Sentence Review Division 

concluded that the sentences should remain unchanged. On 

September 20, 1982 defendants filed their pro se petition for 

post-conviction relief. The matter was assigned to an experienced trial judge other than the original sentencing judge. 

He appointed counsel to represent the defendants. Followinq 

the submission of briefs and oral argument, the District 

Court entered an order denying post-conviction relief and 

setting forth in detail the factual basis for concluding that 

the sentencing court had adequate and sufficient information 

on which to base the sentence. He concluded that the sentencing court was fully apprised of the defendants' backgrounds and their involvement with alcohol and drugs. 

I 

Did the District Court err in not ordering a presentence 

investigation report prior to sentencing the defendants? 

We emphasize that the two defendants were represented in 

court by three lawyers. The sentencing court advised them on 

two different occasions of its conclusion that a presentence 

report was unnecessary. Counsel did not object to this 

conclusion. In addition, counsel and defendants were asked 

if there was an17 reason for postponing sentencing. Counsel 

stated there was no such reason. This clearly suggests a 

waiver by counsel of the presentence report. 

At the time of sentencing, presentence investigation 

requirements were contained in section 95-2203, RCM (1947) , 

now section 46-18-111, MCA, which states: 
"No defendant convicted of a crime which may result 

in commitment for 1 year or more in the state 

prison shall be sentenced or otherwise disposed of 

before a written report of investigation by a 

probation officer is presented to and considered by 

the court unless the court deems such report unnec- - -- 

essary. The court may, in its discretion, order a 

presentence investigation for a defendant convicted 

of any lesser crime or offense.'' (emphasis added) 

The statute clearly gives the District Court discretion to 

conclude that a report is unnecessary, as was done in this 

case. In the absence of any objection by counsel for the 

defendants, it seems clear that counsel also concluded such a 

report was unnecessary. 

On appeal counsel for the defendants argues that section 

18-5.1. (b) of the ABA Standards on Criminal Justice, Sentencing Alternatives and Procedure in substance provides that a 

presentence investigation and report should be made where a 

defendant is less than 21 years old or is a first-time offend.er. The ABA Standards suggest that the sentencing court 

should be explicitly authorized to call for such an investigation, as our statute provides. The ABA Standards further 

recommend that a report should be made unless the defendant 

or defense counsel waives the report and the court finds that 

it has sufficient information to exercise its discretion. 

The record here shows that the sentencing court substantially met those requirements. Defendants have failed to 

present any facts even remotely suggesting that a presentence 

investigation would have assisted either of them. Defendants 

were allowed to argue as to the effect of drugs and alcohol, 

and as to their age, schooling and sorrow. No specific 

benefits from a presentence report are suggested. 

We agree with the District Court that the sentencing 

court was fully apprised of the background of the individual 

defendants. We hold there was no error in the failure to 

order a presentence investigation report. 
Did the District Court enter sufficient findings as to 

the 100-year sentences for the crime of deliberate homicide? 

The sentencing court made limited findings. The court 

stated that he was sorry for the defendants considering their 

position, their age and the drug and alcohol factors, but he 

specifically found that drugs and alcohol were not mitigating 

circumstances in this particular case. In addition he found 

that the legislature has provided that hardened criminals 

should be confin.ed. The court emphasized the defendants' use 

of a gun and the violent nature of the crime. Following 

these findings, the court entered its judgment of a 100-year 

sentence. 

Defendants argue that the findings are insufficient to 

meet the requirements of State v. Stumpf (1980), 187 Mont. 

225, 609 P.2d 298 and State v. Stephens (Mont. 1982), 645 

P.2d 387, 39 St.Rep. 822. As pointed out by the State, 

Stumpf and State v. Garrido (Mont. 1981), 621 P.2d 1105, 38 

St.Rep. 78 confirmed that the requirement of a sentencing 

court to detail its reasons for a sentence is prospective in 

nature. Garrido, 621 P.2d at 1108, 38 St.Rep. at 81. 

Finally, in State v. Carson (Mont. 1984), 677 P.2d 587, 

41 St.Rep. 369, this Court concluded that the trial court had 

not committed prejudicial error by failing to state reasons 

for the sentence imposed. We stated: 

"[Tlhe sentencing judge's failure to state the 

rea.sons for imposition of the . . . sentences 

resulted in no prejudice to the defendant and 

constituted harmless error . . . . The reasons for 

the particular sentence were apparent from the 

record of the sentencing hearing. No substantial 

right of the defendant was denied; no prejudice 

resulted." 677 P.2d at 589, 41 St.Rep. at 371. 

The record in this case substantiates the same conclusion. A plea bargain was involved in which the maximum 
sentence was reduced from a possible term of 140 years to 100 

years. Both defendants received the benefit of the elimination of the potential additional 40 years for robbery. While 

defendants attempt to argue that the shooting was accidental, 

it is of particular significance that defendants shot a clerk 

while committing an armed robbery. It is also significant 

that defendants, with the guidance of three lawyers, agreed 

that each of them was guilty of the crime cf deliberate 

homicide. The reasons for the sentences are apparent from 

the record. 

In substance, defendants object to the court's conclusion that a sentence of 100 years was appropriate. This 

Court has consistently held that if a sentence is within the 

limits provided by statute, it is not an abuse of discretion. 

Garrido, 621 P.2d at 1108, 38 St.Rep. at 80. 

We therefore conclude that the failure of the sentencing 

court to set forth detailed findings or reasons for the 

sentence imposed did not result in prejudice to the defendants and was therefore harmless error. 

111 

Did the District Court deny the petition based on an 

erroneous belief that the sentencing judge had more information available than the record reflects? 

In substance the defendants contend that the sentence 

must be reversed because the sentencing judge had information 

concerning the report of a private psychiatrist, Dr. Murphy, 

which was not directly reflected in the record. The record 

does not substantiate defendants' contention. The transcript 

shows that comments regarding Dr. Murphy's report were made 

by defense counsel in the course of oral presentation to the 

sentencing court. 
In the hearing on the petition for post-conviction 

relief, the District Court inquired and was advised by counsel for both the State and the defendants that each of the 

defendants requested and was granted a psychiatric eva.luation 

at the state hospital. In addition, defense counsel agreed 

that at the time of original sentencing, the sentencing court 

had the evaluation from the sta.te hospital before it. Apparently, defendants also requested and received an independent 

psychiatric evaluation from Dr. Murphy, but now there are no 

copies of the evaluation reports by Dr. Murphy. The record 

does not disclose whether such reports were ever made available to the court, but that both defend.ants spent 60 days at 

Wa.rm Springs in connection with the evaluation. The record 

shows that Dr. Murphy is now deceased. Defendants have 

failed to show that any information furnished by Dr. Murphy 

was improperly considered by the court. However, the record 

does demonstrate that the sentencing court had full recourse 

to the reports of the psychiatric evaluation at Warm Springs. 

We hold that the defendants have failed to prove that 

any erroneous information was considered by the sentencing 

court. 

We affirm the District Court's denial of post-conviction 

relief. 

We concur: