State v. Carpenter , 2011 MT 249N ( 2011 )

October 4 2011
DA 11-0063
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 249N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
FLOYD LEE CARPENTER,
Defendant and Appellant.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and For the County of Lincoln, Cause No. DC 10-28
Honorable James B. Wheelis, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Scott G. Hilderman; Law Offices of Scott G. Hilderman P.C.,
Kalispell, Montana
For Appellee:
Steve Bullock, Montana Attorney General; Micheal S. Wellenstein,
Assistant Attorney General, Helena, Montana
Bernie Cassidy, Lincoln County Attorney; Robert Slomski, Deputy
County Attorney, Libby, Montana
Submitted on Briefs: September 7, 2011
Decided: October 4, 2011
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Pursuant to a plea agreement, Floyd Lee Carpenter (Carpenter) pled guilty to the
felony sexual assault of a 15-year-old girl living in the home of his girlfriend. In
exchange for his guilty plea, the State dismissed three counts of sexual intercourse
without consent and one count of felony criminal distribution of dangerous drugs. The
Nineteenth Judicial District Court, Lincoln County, sentenced Carpenter to seven years at
the Montana State Prison, and designated him a level II sex offender. Carpenter appeals
from this sentence.
¶3 Carpenter raises the following issues on appeal:
¶4 Issue 1: Did the District Court adequately state its reasons for imposing the
sentence?
¶5 Issue 2: Did the District Court violate Carpenter’s due process rights by
considering inaccurate information in the pre-sentence investigation?
¶6 In April 2010, the State filed an information charging Carpenter. The State
alleged that Carpenter had forced the victim on three separate occasions to perform oral
sex upon him, and that he had provided her some of his medical marijuana.
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¶7 Carpenter and the State later entered into a plea agreement whereupon he agreed
to plead guilty to a single charge of felony sexual assault. Carpenter also acknowledged
that the sentencing judge would not be bound by the recommendations of either party or
the probation officer, and that he could be sentenced up to the maximum penalty
provided by law.
¶8 Carpenter’s sexual offender evaluation recommended that the District Court
designate him a level I sex offender, calling for a recommendation of a deferred three-
year sentence according to the plea agreement. Probation and Parole’s pre-sentence
investigation (PSI) report recommended a five-year suspended sentence. Nevertheless,
the District Court sentenced Carpenter to seven years in the Montana State Prison,
designated him a level II sex offender, and ordered that he complete phase one of the
prison sex offender treatment program before he would be eligible for parole.
¶9 We review a criminal sentence for legality. State v. Hill, 2009 MT 134, ¶ 19, 350
Mont. 296, 207 P.3d 307. When the issue on appeal concerns whether the district court
violated the defendant’s constitutional rights at sentencing, the question is a matter of law
which we review de novo to determine whether the district court’s interpretation of the
law is correct. State v. Legg, 2004 MT 26, ¶ 24, 319 Mont. 362, 84 P.3d 648.
¶10 Montana law requires that when a sentence is pronounced, the judge “shall clearly
state for the record the reasons for imposing the sentence.” Section 46-18-102, MCA. In
this case, the District Court cited three primary reasons for imposing its sentence: (1) that
it provided punishment for Carpenter’s knowing act, (2) that the case was not suitable for
a deferred or suspended sentence, and (3) that it provided protection to the public. While
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the sexual offender evaluation found Carpenter’s act to be “situational,” the District
Court stated that it did not find “younger women living in a house where they are
available to people to be that unusual.” Moreover, while Carpenter described the sex
with the victim as consensual, the District Court noted the victim’s allegations to the
contrary. Thus, while circumspect in stating its reasons for imposing the sentence that it
did, the District Court nonetheless satisfied the requirements of § 46-18-102, MCA.
¶11 Carpenter also argues that the District Court violated his due process rights when
it considered misinformation that was contained in the PSI for which he was never given
the opportunity to respond. A sentencing court may consider “any matter relevant to the
disposition” of an offender. Section 46-18-115(1), MCA. However, a defendant may not
be sentenced based upon misinformation. Bauer v. State, 1999 MT 185, ¶ 21, 295 Mont.
306, 983 P.2d 955. If a defendant seeks to overturn a sentence, “the defendant has an
affirmative duty to show the alleged misinformation is materially inaccurate.” State v.
Phillips, 2007 MT 117, ¶ 17, 337 Mont. 248, 159 P.3d 1078.
¶12 In this case, Carpenter was represented by counsel at the sentencing hearing and
was given the opportunity to present witnesses. He introduced no evidence indicating
why the PSI was inaccurate, nor does he specify what that misinformation was in this
appeal. Merely claiming the information is invalid is insufficient. Phillips, ¶ 21.
¶13 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our Internal Operating Rules, which provides for noncitable memorandum opinions. The
issues in this case are legal and are controlled by settled Montana law, which the District
Court correctly interpreted.
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¶14 Affirmed.
/S/ MIKE McGRATH
We concur:
/S/ MICHAEL E WHEAT
/S/ JIM RICE
/S/ JAMES C. NELSON
/S/ BETH BAKER
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