Matter of Jones , 176 Mont. 412 ( 1978 )

MR. JUSTICE HARRISON

delivered the opinion of the Court.

This is an appeal from the order of the District Court, Flathead County, dismissing the petition of Stephen Howard Jones, petitioner, for post-conviction relief.

The factual background to petitioner’s case is: On October 24, 1975, leave was granted for the direct filing of an Information charging petitioner with the crimes of aggravated assault and robbery. On that same date, petitioner appeared before the court and counsel was appointed. On November 4, petitioner plead guilty to the charge of robbery. The charge of aggravated assault was dismissed without prejudice. On November 5, petitioner testified in the trial of Melody Boykin, one of the four other persons arrested for the same offense as petitioner. Following a November 25 presentence hearing, petitioner was sentenced to 40 years for the crime of robbery.

This sentence was subsequently reviewed by the Sentence Review Board on February 20, 1976. The Board decided the sentence was to remain as originally imposed following a hearing where petitioner was represented by his original court appointed counsel. ■

Petitioner next filed a petition for post-conviction relief. An evidentiary hearing was held by the District Court on this petition. Following the hearing the District Court issued findings of fact, conclusions of law and an order dismissing the petition.

Petitioner raises four issues on appeal:

1. Was petitioner afforded effective assistance of counsel?

2. Was petitioner denied due process of the law in light of the factors considered by the District Court for sentencing?

3. Was the sentence of 40 years for the crime of robbery cruel and unusual punishment?

4. Was petitioner prejudiced by the Sentence Review Board’s failure to state reasons for its decision upholding the 40 year sentence?

Since petitioner is merely attacking the findings and conclusions of the District Court, this Court will review petitioner’s issues in light of the dispositve issue. Does substantial, credible evidence exist to support the District Court’s findings and conclusions?

Before the proceeding to petitioner’s issues this Court notes that in reviewing an order denying post-conviction relief the Court must consider which party the burden of proof is placed upon and the scope of review allowed on appeal. Petitioner’s action was instigated under Montana’s post-conviction relief statutes sections 95-2601, R.C.M.1947, et seq. These statutes are in substantial conformity with the Uniform Post-Conviction Procedure Act approved by the National Conference of Commissioners on Uniform State Laws and the American Bar Association in 1955. See: 11 Uniform Laws Annotated 483 (1974). Eleven states have enacted the Uniform Post-Conviction Procedure Act. Montana, Maryland and Oregon retain the 1955 version, while the eight other states have adopted the 1966 Revised Act. This Court looks to the courts of Maryland and Oregon, and the other states to the extent that the revision does not change the basis of decision for relevant interpretations of the Act.

The petitioner, upon filing a petition for post-conviction relief, bears the burden of proving the facts justifying the relief requested by a preponderance of evidence. Miller v. State (1976), 32 Md.App. 482, 361 A.2d 152, 156; Cooper v. State (1975), 96 Idaho 542, 531 P.2d 1187, 1190; Young v. Cupp (1971), 8 Or.App. 41, 491 P.2d 1201, 1202; State v. Hardy (1967), 2 Md.App. 150, 233 A.2d 365, 369.

The scope of review on appeal from an action for post-conviction relief is the same as stated by this Court in Luppold v. Lewis (1977), 172 Mont. 280, 563 P.2d 538, 540:

“When reviewing findings of fact and conclusions of law of a district court, sitting without a jury, this Court has repeatedly held such findings and conclusions will not be disturbed if supported by substantial evidence and by the law. * * * When reviewing evidence it will be viewed in the light most favorable to the prevailing party in the district court, and the credibility of witnesses and the weight assigned to their testimony is for the determination of the district court in a nonjury trial.”

See: Hirt v. State (Minn., 1976), 244 N.W.2d 162; Brudos v. Cupp (1973), 14 Or.App. 277, 512 P.2d 1009, 1012; State v. Valadez (1968), 79 N.M. 513, 445 P.2d 390, 391.

Issue 1. Petitioner alleges the District Court erred in holding that the court appointed counsel rendered adequate and effective assistance. The following finding of fact was entered after the conclusion of the post-conviction relief hearing:

“10. That Petitioner’s counsel, Michael Prezeau, was an experienced counsel in criminal matters; as one of the two Public Defenders he did handle a varied substantial amount of criminal defenses, was instrumental in preventing a notice of prior felony being filed, was successful in having the second count of Aggravated Assault dismissed, was active in the role of advocate for the Petitioner, and evidently did play some part in keeping a charge of Criminal Possession of Dangerous Drugs from being prosecuted.”

On the basis of this finding the District Court concluded that the services of petitioner’s court appointed counsel were adequate and effective.

In reviewing the evidence relied upon by the District Court we find the following support:

(1) The original sentencing judge stated the court appointed counsel had tough circumstances and facts and did the best he could do with what he had to work with.

(2) Petitioner made voluntary statements to the police department in which he admitted facts upon which the Information was based.

(3) Two of the five people involved in the crime had already pleaded guilty and agreed to testify at petitioner’s trial if necessary.

(4) The presentence report showed a basis for filing a notice of prior felony.

(5) The sentencing judge testified that due to counsel’s negotiation with the county attorney’s office a prior conviction charge was not filed, and that counsel had succeeded in reducing the charges as far as possible. Counsel’s plea bargaining skills prevented petitioner from being sentenced to life imprisonment.

(6) Petitioner made statements during his arraignment that he was satisfied with the services rendered by his counsel.

Petitioner failed to sustain his burden of proving he was denied effective assistance of counsel. We find sufficient credible evidence to support the District Court’s conclusion that the services of petitioner’s court appointed counsel were adequate and effective.

Issue 2. Petitioner contends the sentencing judge’s comments at the post-conviction relief hearing show he was sentenced in part for perjury, a crime with which he was not charged and therefore was denied due process of the law. The comments include:

“A. I believe that this defendant was not as candid as he should have been.

“Q. Now could you explain * * *? A. Yes, he didn’t.tell the truth.

“Q. In other words, in effect he committed perjury or lied on the witness stand? A. He wasn’t candid to the Court in that he didn’t tell the truth. I don’t know if you would define it as perjury or I would have done it as perjury. There were things about what transpired with this event that just were not explained by him that were incredible to me.

“Q. But you did then in this particular case put heavy emphasis on the sentencing on the fact that you felt that the defendant was not candid in the testimony at the Melody Boykin trial? A. About 15 years worth, I think.”

Petitioner argues that consideration of perjury in sentencing represents a conviction for another crime without normal procedural safeguards. This argument represents the minority position. See: United States v. Grayson, (3rd Cir., 1977), 550 F.2d 103, 109; Scott v. United States, (1969), 136 U.S.App.D.C. 377, 419 F.2d 264. The seven other circuits considering this argument have reached an opposite conclusion. See: United States v. Lustig, (9th Cir., 1977), 555 F.2d 737, 751, cert. denied, _ U.S. _, 98 S.Ct. 889, 54 L.Ed.2d 795, _ U.S. _, 98 S.Ct. 889, 54 L.Ed. 2d 796 (1978); United States v. Sneath, (8th Cir., 1977), 557 F.2d 149, 151; United States v. Levine, (7th Cir., 1967), 372 F.2d 70, 74, cert. denied, 388 U.S. 916, 87 S.Ct. 2132, 18 L.Ed.2d 1359; United States v. Wallace, (6th Cir., 1969), 418 F.2d 876, 878; United States v. Nunn, (5th Cir., 1976), 525 F.2d 958, 960, reh. denied, 527 F.2d 1390; United States v. Moore, (4th Cir., 1973), 484 F.2d 1284, 1287; United States v. Hendrix, (2nd Cir., 1974), 505 F.2d 1233, 1234-37, cert. denied, 423 U.S. 897, 96 S.Ct. 199, 46 L.Ed.2d 130 (1975).

We choose to follow the majority position for the reasons enunciated by Judge Frankel in Hendrix:

“[That defendant’s argument] ignores the nature of the sentencing process as it exists in our system and of the factors the trial judge may consider in exercising a frequently enormous range of discretion. If there is no clear consensus on these factors, it is certainly clear that they include, as aggravating circumstances, conduct that is not literally ‘criminal,’ or at least has not been duly adjudged criminal in the case in which sentence is being imposed.

“The effort to appraise ‘character’ is, to be sure, a parlous one, and not necessarily an enterprise for which judges are notably equipped by prior training. Yet it is in our existing scheme of sentencing one clue to the rational exercise of discretion. If the notation of ‘repentance’ is out of fashion today, the fact remains that a manipulative defiance of the law is not a cheerful datum for the prognosis a sentencing judge undertakes. * * * Impressions about the individual being sentenced * * * are, for better or worse, central factors to be appraised under our theory of ‘individualized’ sentencing. The theory has it critics. While it lasts, however, a fact like the defendant’s readiness to lie under oath before the judge who will sentence him would seem to be among the more precise and concrete of the available indicia.” 505 F.2d 1235, 1236.

The District Court made explicit a factor it deemed material in sentencing the petitioner. “A judge may consider the candor of the defendant on the stand in passing sentence.” 555 F.2d 751. There is nothing offensive in the judge’s comments that the defendant had been less than candid in his sworn testimony.

“A sentencing judge cannot put out of his mind the impression a defendant may give while on the witness stand and should not try to sentence in a mental vacuum.” United States v. Cluchette, (9th Cir., 1972), 465 F.2d 749, 754.

While the sentencing judge may take into account his belief that the defendant was not candid with the court this is to be distinguished from the rule that a sentence may not be augmented because a defendant refuses to confess or invokes his privilege against self-incrimination. Fox v. State, (1977 Alaska), 569 P.2d 1335, 1338. See: United States v. Garcia, (3rd Cir., 1976), 544 F.2d 681, 685; United States v. Acosta, (5th Cir., 1975), 509 F.2d 539, cert. denied, 423 U.S. 891, 96 S.Ct. 188, 46 L.Ed.2d 122 (1975); United States v. Rogers, (5th Cir., 1974), 504 F.2d 1079, 1085, cert. denied, 422 U.S. 1042, 95 S.Ct. 2655, 45 L.Ed.2d 693 (1975).

In petitioner’s case, his candor was only one factor considered by the sentencing judge. The District Court found the sentencing judge imposed the 40 year sentence based upon the following reasons:

“9. * * * That Petitioner displayed a significant lack of candor during his testimony at the Boykin trial and that Petitioner’s attitude was extremely poor and therefor that his potential for rehabilitation was extremely poor; that Petitioner had had a fairly extensive criminal record that included a conviction for Burglary, a felony, on October 24, 1972, for which Petitioner had been given a two year suspended sentence; that he was further convicted of Petty Larceny, with a prior on June 14, 1973, for which he had received 27 days in jail and 24 month probation, occurring in the State of California.”

On the basis of this finding the District Court concluded the sentencing judge used his sound judicial discretion in arriving at the sentence imposed.

The record shows the sentencing judge considered many factors in sentencing petitioner. The comments of the sentencing judge relied upon by petitioner indicate only that the trial believed petitioner was not candid with the court and took this into consideration while imposing the sentence. In Levine, the court said:

“In this respect the defendant’s testimony might properly have been considered, not as punishment for the crime of perjury, but as a reflection of the character of the person before the court for sentencing.” 372 F.2d 74.

Accordingly, we note the statement of the sentencing judge at the conclusion of the hearing for aggravation or mitigation of sentence.

“ * * * But that is not the kind of candor I am looking for and it is not the kind of respect for the whole system that I am looking for. What I look for in this case was some redeeming social quality on your part that would justify risking society by giving you a shorter sentence, and I can find none. * * * And now the only thing left really is not to risk a chance that something will happen if you go down there and come out and do something. The only thing left now is to protect society. And I am sorry about it. We will be in recess.”

Sufficient, credible evidence exists to support the conclusion of the District Court. The sentencing judge used his sound judicial discretion in arriving at the sentence imposed.

Issue 3. It is the general rule that a sentence within the maximum authorized by statute is not cruel and unusual punishment. State v. Karathanos, (1972), 158 Mont. 461, 468, 469, 493 P.2d 326. Petitioner acknowledges this rule, but argues if the sentence is so greatly disproportionate to the crime that it “shocks the conscience and outrage of the moral sense of the community or of justice”, it is still cruel and unusual punishment. State v. Karathanos, supra; Faulkner v. State, (1968 Alaska), 445 P.2d 815, 818, Anno. 33 A.L.R.3d 335, 363.

Petitioner had the burden to prove by a preponderance of evidence that his sentence fell within this exception. This was not done. The sentence was within the maximum punishment for the crime of robbery as mandated by the legislature. The sentence was subsequently reviewed by the Sentence Review Board and left as originally imposed. Given the function of the Sentence Review Board, section 95-2503, R.C.M.1947, this decision amounts to an implicit finding that the sentence was not so greatly disproportionate to the crime.

Finally, the sentence imposed was based upon numerous reasons. One reason enunciated by the sentencing judge was the protection of society. We do not engage in the practice of second guessing the trial judge, who after observing the demeanor and attitude of defendant, uses his discretion in fixing the punishment. State v. Karathanos, supra. We only review the cold record. In this light, we note petitioner’s testimony at his hearing for aggravation or mitigation of sentence:

“Q. * * * Prior to your arrest and residence here in jail, how did you support yourself? A. Playing pool and a little hustle here and there.

“Q. And anything else? A. Oh, yeah.

“Q. What? A. I don’t really think that is any of your business.

“Q. You indicated to your counsel that you were sorry for what you did. Now, this is the second time that you have appeared before this Court testifying about this incident. Would it be more correct to say that you were sorry you got caught? A. Yeah.”

No abuse of discretion appears from the record. The District Court had sufficient evidence to conclude the sentence was not cruel and unusual.

Issue 4. We find no merit to this assignment of error. Petitioner merely makes a bald assertion of error in that the Sentence Review Board failed to state the reasons why the sentence remained the same as originally imposed. Petitioner neither pleaded nor proved facts supporting a condition warranting relief under the post-conviction relief statutes.

Finding no reversible error, we affirm the judgment of the District Court.

MR. CHIEF JUSTICE HASWELL, JUSTICE DALY and L. C. GULBRANDSON, District Judge, sitting with the Court, concur.