State v. Tenas ( 1995 )

NO. 95-084
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1995
STATE OF MONTANA,
Plaintiff and Respondent,
v.
DANETTE TENAS,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable C.B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Roberta Hoe, Attorney at Law, Polson, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Pamela P.
Collins, Assistant Attorney General, Helena,
Montana; Kim Christopher, Lake County Attorney,
Mitchell A. Young, Deputy Lake County Attorney,
Polson, Montana
Submitted on Briefs: July 13, 1995
Decided: August 17, 1995
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
Danette Tenas (Tenas) appeals from the Judgment entered by the
Twentieth Judicial District Court, Lake County, on her conviction
by Alford plea of the offense of negligent homicide. We affirm.
The dispositive issue on appeal is whether the District Court
abused its discretion in sentencing Tenas.
A complaint was filed in the Justice Court of Lake County on
July 9, 1993, charging Tenas with the offense of negligent
homicide, a felony, in violation of § 45-5-104, MCA. The complaint
alleged that, on or about May 2, 1992, Tenas negligently caused the
death of a human being by driving a vehicle across the center line
on Highway 93 and causing a head-on collision. An information was
later filed in the District Court charging Tenas with the offenses
of negligent homicide, a felony, and negligent vehicular assault,
a misdemeanor. Tenas pleaded not guilty to both charges.
After a number of continuances and related waivers of speedy
trial rights, an omnibus hearing was held on March 16, 1994. A
jury trial was scheduled and, later, rescheduled for October 13,
1994.
In September of 1994, the State of Montana (State) filed a
proposed plea agreement and Tenas filed a Verified Request to Enter
Guilty Plea and Waiver of Rights. Under the plea agreement, Tenas
would plead guilty to the negligent homicide charge and the State
would dismiss the negligent vehicular assault charge. The State
agreed to recommend a sentence of 10 years in the Women's
Correctional Facility, with all but 90 days suspended and the 90
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days 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 a not 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 a brief 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 and the 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 10 years in the
Women's Correctional Facility and suspended all but 90 days, which
were to be served in the Lake County Jail. The court provided that
Tenas could serve the last 30 days of the 90 nonsuspended days
either in an in-patient treatment program or on house arrest if she
arranged and paid for either option. Conditions were imposed for
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the 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 an opportunity for rehabilitation. The court
also took into consideration Tenas' youth and relative absence of
a prior 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
on her own recognizance pending appeal. The District 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, 875 P.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. The statute authorizes a sentence
of imprisonment for any term not exceeding 10 years or a fine not
exceeding $50,000, or both. Section 45-5-104(3), MCA. It is clear
that the District Court's sentence of 10 years' imprisonment in the
Women's Correctional Facility, with all but 90 days of that term
suspended and that 90 days to be served 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 and Tenas. Pursuant to that agreement,
the State recommended a sentence of 10 years' imprisonment, with
all but 90 days 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 a deferred 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 may influence the sentencing decision. This argument
is based on asserted inaccurate and biased 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 5 46-18-112, 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 a lack of compliance with the
statutory requirements.
Relying on State v. McPherson (1989), 236 Mont. 484, 771 P.2d
120, rev'd on other grounds, see State v. Staat (1991), 248 Mont.
291, 292-93, 811 P.2d 1261, 1262, and the Fourteenth Amendment's
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due process clause, Tenas also argues that she was entitled to have
her sentence predicated on correct 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 on inaccurate 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 a three-page letter from her doctor addressing portions
of the information contained in the PIR and expressing the doctor's
disagreement with a comment by Weaver that Tenas was not
remorseful.
While McPherson requires that a criminal defendant's sentence
be predicated on substantially correct information, it also states
that we presume a district court to be correct and place the burden
of presenting inaccuracies on the 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. We conclude, therefore, that Tenas has not met her
burden of establishing that the District Court relied on inaccurate
information.
Tenas also argues that her constitutional right to equal
protection of the laws entitled her to a deferred sentence on the
basis that an allegedly similarly situated defendant received such
a sentence. She cites no authority for the proposition that every
sentence involving similar circumstances requires imposition of an
identical sentence and we know of no such 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; we do not review such matters on appeal.
u State v. Almanza (1987), 229 Mont. 383, 386, 746 P.2d 1089,
1090-91.
Tenas' contention that her sentence is cruel and unusual under
the constitution also requires little discussion. We repeatedly
have held that a sentence which falls within the statutory
sentencing guidelines does not violate the Eighth Amendment
prohibition against cruel and unusual punishment. See, e.9., State
v. Peck (1993), 263 Mont. 1, 4, 865 P.2d 304, 306.
Finally, Tenas' reliance on State v. Burris (19751, 168 Mont.
195, 542 P.2d 1223, for the proposition that this Court has
indicated a preference for deferring imposition of sentence under
circumstances such as those now before us is misplaced. In Burris,
we addressed a specific statutory presumption in favor of a
deferred sentence upon the first conviction of a person under 21
years of age for a drug-related offense. Burris, 542 P.2d at 1224-
25. That statute is not at issue here and, therefore, Burris is
totally 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 be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter an st Publishin
We Concur:
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