### NO. 95-084 INTHESUPREME

COURTOFTHESTATEOFMONTANA 1995
STATEOFMONTANA,

Plaintiff andRespondent,
v. DANETTETENAS,

Defendant andAppellant.

APPEALFROM: District Court of the Twentieth Judicial District,

In andfor the County of Lake, TheHonorable C.B. McNeil, Judgepresiding.

COUNSELOFRECORD:

ForAppellant: Roberta Hoe,Attorney at Law, Polson, Montana For Respondent: Hon.Joseph P.Mazurek, Attorney General, PamelaP. Collins, Assistant Attorney General, Helena, Montana; Kim Christopher, Mitchell A. Lake County Attorney,

Young, Deputy Lake County Attorney, Polson, Montana

Filed: Submitted onBriefs: July 13, 1995 Decided: August 17, 1995

### Justice Karla M.Gray delivered the Opinion of the Court.

Danette Tenas (Tenas) appeals fromtheJudgment entered bythe Twentieth Judicial District Court, LakeCounty, onher conviction byAlford plea of the offense of negligent homicide. Weaffirm. Thedispositive issue onappeal is whether the District Court abused its discretion in sentencing Tenas. Acomplaint wasfiled in the Justice Court of Lake County on July 9, 1993, charging Tenas with the offense of negligent homicide, afelony, inviolation of §45-5-104, MCA. Thecomplaint alleged that, onor about May2, 1992, Tenasnegligently causedthe death of ahumanbeing bydriving avehicle across the center line
onHighway 93andcausing ahead-on collision. Aninformation was later filed inthe District Court charging Tenaswith the offenses of negligent homicide, afelony, andnegligent vehicular assault,
amisdemeanor. Tenaspleaded not guilty to both charges. After anumber of continuances andrelated waivers of speedy trial rights, anomnibus hearing washeld onMarch 16, 1994. A jury trial wasscheduled and, later, rescheduled for October 13, 1994.In September of 1994, the State of Montana (State) filed a proposed plea agreement andTenasfiled aVerified Request toEnter Guilty Plea andWaiver of Rights. Underthe plea agreement, Tenas would plead guilty to the negligent homicide charge andthe State would dismiss the negligent vehicular assault charge. TheState agreed to recommend a sentence of 10 years in the Women's Correctional Facility, with all but 90days suspended andthe 90 2days to be served in the Lake County Jail; Tenas was free to

recommend any sentence she felt was appropriate. The State and Tenas agreed that she would not be sentenced in excess of the State's recommendation. In the event the District Court rejected the plea agreement, Tenas would be allowed to withdraw her guilty plea, enter anot guilty plea and proceed to trial. The District Court subsequently accepted the plea agreement, stating that Tenas' sentence would not be greater than that recommended by the State or less than that recommended by Tenas. Tenas then entered an Alford plea to the charge of negligent homicide. The court accepted the plea, granted the State's motion to dismiss the negligent vehicular assault charge and ordered a presentence investigation report (PIR). Thereafter, Tenas filed abrief in support of her sentencing recommendations. In summary, she recommended that imposition of sentence be deferred for five years under certain conditions, including that she enter an appropriate rehabilitation and treatment center capable of addressing both chemical dependency issues andthe closed head injury she contends she sustained in the vehicle collision from which the charges against her arose. At the sentencing hearing, testimony and oral argument were presented. The District Court sentenced Tenas to 10years in the Women's Correctional Facility andsuspended all but 90days, which
were to beserved in the Lake County Jail. The court provided that Tenas could serve the last 30 days of the 90 nonsuspended days either in anin-patient treatment program or onhouse arrest if she arranged and paid for either option. Conditions were imposed for 3the full period of Tenas' suspended sentence.

The court's stated reasons for the sentence were that it conformed to the parameters of the plea agreement and provided for both punishment and anopportunity for rehabilitation. The court also took into consideration Tenas' youth and relative absence of
aprior criminal record and her lack of any expressed remorse for the death caused by her drinking and driving. Tenas appealed. Tenas moved to stay execution of the judgment and for release
onher ownrecognizance pending appeal. TheDistrict Court granted the motion. Did the District Court abuse its discretion in sentencing Tenas? Sentencing judges are granted broad discretion to determine the appropriate punishment. State v. Alexander (1994), 265 Mont. 192, 203, 875P.2d 345, 352 (citation omitted). Where the sentence imposed is within the limits of the applicable statutes, we generally will not find an abuse of discretion. See State v. Losson (1993), 262 Mont. 342, 352, 865 P.2d 255, 261. Section 45-5-104, MCA, defines the offense of negligent homicide and sets forth the statutory parameters for sentencing a person convicted of the offense. Thestatute authorizes asentence of imprisonment for any term not exceeding 10years or afine not exceeding $50,000, or both. Section 45-5-104(3), MCA. It is clear that the District Court's sentence of 10years' imprisonment in the Women's Correctional Facility, with all but 90days of that term suspended andthat 90days to beserved in the Lake County Jail, is well within the applicable sentencing statute.

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__-,-.,.-.,.- -Nor does the court's sentence violate the terms of the plea

agreement between the State andTenas. Pursuant to that agreement, the State recommended asentence of 10years' imprisonment, with all but 90days suspended and those days to be served in the Lake County Jail. Tenas made her own sentencing recommendations, as permitted by the agreement. The court accepted the plea agreement and sentenced Tenas within its parameters, as it affirmatively obligated itself to do. Tenas advances a variety of arguments in support of her contention that the District Court erred in not granting her request for adeferred imposition of sentence. Her arguments are not persuasive. Tenas argues that the court did not meet its responsibility to be fully informed on any mitigating or aggravating circumstances that properly mayinfluence the sentencing decision. This argument is based onasserted inaccurate andbiased information contained in the PIR prepared by Dave Weaver (Weaver), as well as omitted material she contends should have been included. While Tenas argues generally that 546-18-112, MCA, requires the inclusion of certain information in a PIR, she does not assert with particularity that information required by the statute is not included in some form or fashion in the PIR Weaver prepared; nor does our review of the PIR indicate alack of compliance with the statutory requirements. Relying onState v. McPherson (1989), 236 Mont. 484, 771 P.2d 120, rev'd onother grounds, see State v. Staat (1991), 248 Mont. 291, 292-93, 811 P.2d 1261, 1262, and the Fourteenth Amendment's
5dueprocess clause, Tenas also argues that shewas entitled to have

her sentence predicated oncorrect information. She contends that Weaver's failure to include information about her medical history and current closed head injury, together with his erroneous opinions about her psychological condition and lack of remorse, resulted in the District Court's reliance oninaccurate information in sentencing her. The record reflects that, at the sentencing hearing, Tenas stated that she had numerous comments and corrections relating to the PIR, a number of which related to expressions of opinion by Weaver. The court permitted her to present her objections and corrections. In addition, she cross-examined Weaver fully and presented athree-page letter from her doctor addressing portions of the information contained in the PIRandexpressing the doctor's disagreement with a comment by Weaver that Tenas was not remorseful. While McPherson requires that acriminal defendant's sentence bepredicated onsubstantially correct information, it also states that wepresume adistrict court to becorrect andplace the burden of presenting inaccuracies onthe defendant. McPherson, 771 P.2d at 123-24. Here, Tenas' assertions regarding inaccurate information rest primarily on differences of opinion. It was within the province of the sentencing court to weigh conflicting opinions and interpretations and give them such weight as it found appropriate. Weconclude, therefore, that Tenas has not met her burden of establishing that the District Court relied oninaccurate information.Tenas also argues that her constitutional right to equal

protection of the laws entitled her to adeferred sentence onthe basis that anallegedly similarly situated defendant received such
asentence. She cites noauthority for the proposition that every sentence involving similar circumstances requires imposition of an identical sentence and weknow of nosuch authority. Moreover, Tenas' equal protection argument--like her other constitutional arguments--totally ignores the fact that she was sentenced in accordance with her plea agreement. Tenas can present any argument about the inequity or disparity of her sentence to the Sentence Review Division; wedonot review such matters onappeal.
u State v. Almanza (1987), 229 Mont. 383, 386, 746 P.2d 1089, 1090-91. Tenas' contention that her sentence is cruel andunusual under the constitution also requires little discussion. Werepeatedly have held that a sentence which falls within the statutory sentencing guidelines does not violate the Eighth Amendment prohibition against cruel andunusual punishment. See, e.9., State

v. Peck (1993), 263 Mont. 1, 4, 865 P.2d 304, 306. Finally, Tenas' reliance onState v. Burris (19751, 168 Mont. 195, 542 P.2d 1223, for the proposition that this Court has indicated apreference for deferring imposition of sentence under circumstances such asthose nowbefore us is misplaced. In Burris,
we addressed a specific statutory presumption in favor of a deferred sentence upon the first conviction of aperson under 21 years of age for adrug-related offense. Burris, 542 P.2d at 1224- 25. That statute is not at issue here and, therefore, Burris istotally inapplicable.

The sentence of the District Court is within the statutory parameters set forth in §45-5-104(3), MCA, for the offense of negligent homicide. The sentence is also within the parameters of Tenas' plea agreement with the State. Tenas has not established that the District Court relied on information which was not substantially correct in sentencing her. See McPherson, 771 P.2d at 123. Therefore, we conclude that the District Court did not abuse its discretion in sentencing Tenas. Affirmed. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1988 Internal Operating Rules, this decision shall not becited as precedent andshall bepublished by its filing asapublic document with the Clerk of the Supreme Court and by areport of its result to Montana LawWeek, State Reporter an st Publishin

WeConcur:

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