                                                                                                04/03/2018


                                           DA 16-0290
                                                                                            Case Number: DA 16-0290

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2018 MT 76N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

SHAUN ALLEN DOWNS,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Eighth Judicial District,
                        In and For the County of Cascade, Cause No. CDC 13-447
                        Honorable John A. Kutzman, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Paul Sullivan, Measure, Sampsel, Sullivan & O’Brien, P.C., Kalispell,
                        Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman,
                        Assistant Attorney General, Helena, Montana

                        Joshua Racki, Cascade County Attorney, Great Falls, Montana



                                                     Submitted on Briefs: February 21, 2018

                                                                 Decided: April 3, 2018


Filed:

                        __________________________________________
                                          Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1        Pursuant to Section I, Paragraph 3(c), 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        Shaun Allen Downs (Downs) appeals from an order of the Eighth Judicial District

Court, Cascade County, sentencing him to the Montana State Prison for forty years. We

affirm.

¶3        Downs pleaded guilty to one count of felony incest. As part of the plea agreement,

the State agreed that it would not make a sentencing recommendation, leaving Downs’s

sentence up to the District Court’s judgment. The plea agreement further stated, “While

the [State] agrees to make no recommendation for a particular sentence, the [State] is free

to advise the [District] Court of any mitigating or aggravating factors it considers relevant

at the time of sentencing. Witnesses, including but limited to the victim(s), the victims’

family members, and the author of the PSI may testify at the sentencing hearing to assist

the [District] Court in sentencing.”

¶4        At Downs’s sentencing hearing, the State called multiple witnesses, including the

victim, the victim’s father, and the victim’s school counselor. The State also called Officer

Tim Hides who prepared the Pre-Sentence Investigation Report (PSI). Officer Hides

testified that his sentencing recommendation was fifty years to the Montana State Prison.

He also testified that, in forming his recommendation, he considered all of the information


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available to him regarding Downs’s case. He reported that the average sentence for incest

in Cascade County was 55.83 years with 18.08 years suspended. Downs called one witness

on his behalf at the sentencing hearing, Dr. Michael Scolatti, who performed a

psychosexual evaluation on Downs. Downs also offered letters submitted on his behalf

into evidence.

¶5     After both parties finished presenting testimony and evidence, the State stated,

“[W]e’re going to leave the sentencing completely up to the Court.” The State pointed out

two main aggravating factors, one being the devastating nature of Downs’s acts on the

victim and the other being Downs’s blaming of the victim. Downs then suggested that,

based on statutes, case law, and the evidence presented at the sentencing hearing, he should

receive a probationary sentence between ten and twenty years.          The District Court

ultimately sentenced Downs to commitment in the Montana State Prison for a term of forty

years with credit for 148 days of time already served.

¶6     Downs argues on appeal that the State violated the plea agreement by soliciting,

supporting, and defending Officer Hides’s sentencing recommendation. Downs agrees that

the State did not violate the agreement when it initially called Officer Hides to testify.

Downs also agrees that the State did not violate the agreement when Officer Hides first

made his recommendation of fifty years to the Montana State Prison. Downs argues,

however, that the State violated the agreement in soliciting Hides’s testimony supporting

and defending the recommendation. Recognizing that he did not object to the State’s

questioning at the sentencing hearing, Downs asks this Court to exercise plain error review.




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The State responds, arguing that we should affirm Downs’s sentence because the plea

agreement explicitly permitted the State’s conduct at the sentencing hearing.

¶7     We generally do not address issues raised for the first time on appeal. State v.

Longfellow, 2008 MT 343, ¶ 19, 346 Mont. 286, 194 P.3d 694; § 46-20-104(2), MCA

(stating that, generally, failure “to make a timely objection during trial constitutes a waiver

of the objection”). However, we may review an unpreserved claim under the common law

plain error doctrine when the claim invokes a criminal defendant’s fundamental rights.

State v. Taylor, 2010 MT 94, ¶ 12, 356 Mont. 167, 231 P.3d 79. We only review a claim

for plain error “where failing to review the claimed error may result in a manifest

miscarriage of justice, may leave unsettled the question of the fundamental fairness of the

trial or proceedings, or may compromise the integrity of the judicial process.” Taylor, ¶ 12

(citing State v. Jackson, 2009 MT 427, ¶ 42, 354 Mont. 63, 221 P.3d 1213).

¶8     We sparingly invoke plain error review on a discretionary, case-by-case basis. State

v. Favel, 2015 MT 336, ¶¶ 13, 23, 381 Mont. 472, 362 P.3d 1126 (citing State v. Reim,

2014 MT 108, ¶ 29, 374 Mont. 487, 323 P.3d 880, and State v. Daniels, 2011 MT 278,

¶ 32, 362 Mont. 426, 265 P.3d 623). In order for this Court to find plain error, “the

appealing party must: (1) show that the claimed error implicates a fundamental right and

(2) firmly convince this Court that failure to review the claimed error would result in a

manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of

the trial or proceedings, or compromise the integrity of the judicial process.” Favel, ¶ 23

(quoting Daniels, ¶ 32) (internal quotations omitted).




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¶9     Downs has not demonstrated that the State’s conduct at the sentencing hearing

constituted plain error. Despite recognizing that his case presents a different factual

scenario, he urges us to exercise plain error review as we did in State v. Rardon, 2002 MT

345, ¶¶ 16-17, 313 Mont. 321, 61 P.3d 132 (Rardon II). In Rardon II, we held that the

State solicited testimony in a manner contrary to the plea agreement because the testimony

was “clearly intended to undermine the plea agreement and to convince the sentencing

court that a plea bargained sentence recommendation should not be accepted.” Rardon II,

¶ 22 (emphasis omitted). That is not to say, however, that the State cannot solicit any

incriminating testimony during the sentencing hearing, particularly when the plea

agreement provided that the State could present the testimony at issue. State v. Rardon,

2005 MT 129, ¶ 17, 327 Mont. 228, 115 P.3d 182 (Rardon III).

¶10    In this case, the plea agreement provided that the State could call the author of

Downs’s PSI as a witness at the sentencing hearing for the explicit purpose of assisting the

District Court in sentencing. Officer Hides testified as to his sentencing recommendation

and then the State asked reasonable follow-up questions. Officer Hides’s answers merely

assisted the District Court in sentencing and Downs did not convince us that Hides’s

comments implicated Downs’s fundamental rights. Downs’s counsel even stated, at the

end of the sentencing hearing, that the State had not made a sentencing recommendation.

We find that failure to review Downs’s claimed error would not result in a manifest

miscarriage of justice, leave unsettled the question of the fundamental fairness of the trial

or proceedings, or compromise the integrity of the judicial process. Accordingly, we

decline to exercise plain error review and affirm the District Court’s sentence.


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¶11    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. This appeal presents

no constitutional issues, no issues of first impression, and does not establish new precedent

or modify existing precedent.

¶12    Affirmed.


                                                  /S/ LAURIE McKINNON


We Concur:

/S/ DIRK M. SANDEFUR
/S/ JIM RICE
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER




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