No. 14749 IN THE SUPREME COURT OF THE STATE OF MONTANA 1980

THE STATE OF MONTANA, Plaintiff and Respondent,

VS

# . WILLIAM STUMPF, Defendant and Appellant.

Appeal from: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, Honorable Charles Luedke, Judgepresiding. Counsel of Record: For Appellant: Joseph P. Hennessey, Billings, Montana For Respondent: Hon. Mike Greely,Attorney General, Helena, Montana Harold Hanser, County Attorney, Billings, Montana

; . Filed: Submitted on briefs: October 25, 1979 Decided:

### Mr. Justice Daniel J. 

### Shea delivered the Opinion of the Court. Defendant William Sturnpf appeals from a judgment of the Yellowstone County District Courtwhereby he was sentenced to three years imprisonment for the crime of tampering with witnesses (section 45-7-206,MCA). Defendant has two basic attacks on the statute itself. He claims that the substantive provisions of the statute

are too broad, and furthermore, that the penalty provision does not containproper guidelines for sentencing. Defendant cites no authority and virtually makes no argument to supporthis contention that the substantive provision of the statute is too broad, and we are not inclined to do that for him. Accordingly,we reject this portion of his argument. Section 45-7-206(2),provides that "[a] person convicted of tamperingwith witnesses or informants shall be imprisoned in the state prison for any term not to exceed 10years." He claims that the statute itself contains inappropriate guidelines for sentencing,and furthermore, that the trial court abused its discretion by sentencing him to three years inprison. The statute itself does not have to contain the sentencing guidelines,and thereforewe find no merit to this contention. We do find, however, that the failure of the trial court to specify the reasonswhy defendant was sentenced to three years in prison, is an abuse of discretion. We do not deny the discretion of a trial court to sentence a defendantwithin the limits set by the statute. Indeed, ithas always been the position of this Court that the extent of punishment is vested in the sound discretion of the trial court. But here, although the sentence imposed was well within the statutory limit of ten years,we are -2-

### presented with no underlying reasons of why the trial court exercised its discretion in sentencing defendant to three years inprison. That a trial court has 

### a right to exercise its discretion does notmean that a trial court should not disclose the reasons underlying a discretionary act. Absent these reasons,we as an appellate court, are left to guess

as to why the trial courtmade a particular decision. In Ballantyne v. Anaconda Co. (1978),175Mont. 406, 574 P.2d 582, set forth the underlying reasons why trial courts should set forth in the record the reasons for their decisions. Although that case involved the granting of a

new trial without a specification of reasons, the same rationale applies to most of the decisions made by trial courts in both civil and criminal cases. Although admittedly in a different context, this Court recently in the Matter of McFadden (1980), 

### -Mont

# . I 

### 605 P.2d 599, 37 St.Rep. 55, determined that a sentencing courtmust articulate its reasons underlying a determination that an offender was to be designated as a dangerous offender. Although McFadden turned on a statutory requirement, that reasoning also applies here. In the context of this case, several jurisdictions require sentencing courts to state on the record the reasons for selecting a particular sentence. Some of these are controlled by statutesrequiring the sentencing courts to disclose its reasons for sentencing (e.g., ~ennsylvania, Louisiana, Illinois,Wisconsin, and Oregon). Others require it under the criminalprocedure rules of the respective states (e.g., Pennsylvania, Iowa,and New Jersey). See, for example, State v. Ingenito (1979), 169 N.J. 

### Super. 524, 405A.2d 418;Com. 

### v. Wareham (Pa. Super. 1978), 393 ~.2d -3-951. We alsonote that the American Bar Association Standards Relating toAppellate Review of Sentences, require the sentencingjudge to statehis reasons for selectingtheparticular sentence imposed. Standard 2,3(c). Although a defendant is of course entitled tohave a sentence reviewed by the Sentence Review Board, there can be no question that a statement inthe record atthe time sentence isimposed as tothe reasons for the particular sentence, can give valuable aid tothe Board when it is called upon toreview the particular sentence involved. Otherwise it, too, is forced toguess astowhy the particular sentencewas involved. Undoubtedly, the Board could always contact the sentencingjudge, but the chances that a faulty memory willbecome a factor in thisprocess are avoided when the reasons for the sentence are stated for the record atthe time of the sentencing. Wenote, furthermore, that this requirement that the sentencing court state the specificreasons for imposing the particular sentence involved, isconsistentwith the firstparagraph of Canon 19, Montana Canons of Judicial Ethics, 144Mont. atXXVI-XXVII: "In disposing of controverted cases, a judge should indicatethe reasons for his action inan opinion showing thathe has not disregarded oroverlooked serious arguments of counsel. He thus shows his fullunderstanding of the case, avoids the suspicion of arbitrary conclusion, promotes confidence inhis intellectual integrity and may contribute useful precedent to the growth of the law." We see no reason why a defendant sentenced toprison is not alsoentitledtoknow precisely why the sentencing judge chose theparticular sentence involved. It is not enough that the sentence be within the statutorymaximum. If thatwere the case, the sentencewould simply not be an abuse of discretion, it would be plainly illegal. While

### illegal actionmust inevitably be an abuse of discretion,

an abuse of discretion can occur and still not be tainted by illegality. For the foregoing reasons the sentence imposed is vacated and this cause is remanded to the District Court for resentencing consistentwith what we have said in this &-herthan as it ap lies to the defendant opinion/ This decision sha

# !i 1 have prospective 

### ap8lication only. -=-.

-* 

# . - 

## ............................... Justice We Concur:

. 

# p.*.*

Justices 

## -------------Mr. Chief Justice Frank I. Haswell dissenting: I respectfully dissent from themajority opinion. The punishment for the crime of which the defendant was convicted is a prison term not to exceed 10years. Section 45-7- 206,MCA. A sentence of three years imprisonment in the State Prison was imposed in this case. The extent of punishment is vested in the sound discretion of the sentencing judge. Petition of Amor (1963),143 Mont. 305, 389 P.2d 54. Themajority hold that the district judge abused his discretion because he did not articulate his reasons for imposing

a three year sentence in the record. This holding fliesdirectly in the face of the presumption that the trial court is correct and it is the appellant's burden to overcome that presumption. State v. Lane (1977),175Mont. 225, 573 P.2d 198, 34 St.Rep. 1588; Petition of Meidinger (1975),168 Mont. 7, 539 P.2d 1185. Whatever the law in other statesmay be, I find no support in the laws of Montana for a requirement that the sentencing judge specify in the record his reasons for imposing a particular sentence within the limits provided by law. If themajority now seek to impose such additional requirement, they should at least give advance notice of the fact to the district judges of this state and not impose this additional requirementretroactively. See Kussler v. Burlington Northern, Inc. (1980), Mont. 

## , 606 P.2d 520, 37 St.Rep. 240, and authorities cited therein. Themajority state that their decision shall have prospective application only. Yet they set aside a sentence imposed

over a year ago because the district judge failed to follow a sentencing requirement imposed upon him for the first time today. Prospective application? The majority find solace in the case of In the Matter of McFadden (1980)

## , Mont. 

## , 605 P.2d 599, 37 St.Rep. 55,decided after the sentencing in this case. Despite certain language

### in that decision thatmight support a contrary view, 

### Ibelieve that McFadden is based on 

### a lack of substantial evidence to support a determination that petitioner was a dangerous offender. This is a far cry from requiring the sentencing judge to specify his reasons for imposing a particular sentence in a given case.

Chief Justice )