                                            NO.    95-077
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                  1995



THE STATE OF MONTANA,
               Plaintiffs          and Respondents,
         -v-
JERRY ROBERT LaMERE,
               Defendant        and Appellant.




APPEAL FROM:            District  Court of the Eighth  Judicial  District,
                        In and for the County of Cascade,
                        The Honorable   John McCarvel, Judge presiding.


COUNSEL OF RECORD:
               For    Appellant:
                        Jerry      Robert    LaMere,     pro   se
               For    Respondent:
                        Hon. Joseph P. Mazurek,      Attorney    General,   Jennifer
                        Anders,  Assistant  Attorney    General,  Helena,   Montana;
                        Patrick   L. Paul,  Cascade County Attorney,        Shawn M.
                        Glen,   Deputy Cascade County Attorney,        Great Falls,
                        Montana


                                                   Submitted    on Briefs:      May 19,   1995
                                                                     Decided:    August    21,   I995
Filed:
Justice           Fred         J.        Weber          delivered            the        Opinion            of     the      Court.

           This          is     an             appeal         from       a     sentence               imposed              by         the         Eighth
Judicial           District                    Court,      Cascade            County.            We reverse                and remand                    for

resentencing.

           We consider                     the      following             issues            on appeal:

           I.      Did         the         District              Court         err          when      it         failed          to         consider

alternatives                    to         incarceration                     for        a      nonviolent                 felony              offense

pursuant            to        §§ 46-18-225,                    and 46-18-201(10),                           MCA?

           II.            Did            the      County          Attorney               adequately                 support                 the      plea

agreement?

           On April                 9,     1994,         Officer          Sowell             (Sowell)             of      the     Great            Falls

Police           Department                    was dispatched                  to       Howard's                Pizza      in     response                 to

a report           that         one of             the      establishment's                      vehicles               had been              stolen.
The owner                of     Howard's                 Pizza       informed               police          that          an employee                    had

left       a delivery                      truck          belonging                to    Howard's                parked           and         running

outside           the         business.                  When the            employee              went          back      to     the         vehicle

with       the      pizzas,                the      truck         was missing.

           Shortly             thereafter,                    Sowell         learned           that        the     delivery             truck            had

been       involved                 in     a single-car                  rollover              accident             and the             driver             of

the       vehicle              was         in      custody.               Sowell            went       to         the      accident                 scene

where           he learned                 that         two      individuals                 had witnessed                      the     accident.

These            persons                 saw      appellant              leave           the       scene           of      the         crime             and

contacted                police.                  Appellant              was apprehended                         several          blocks             from

the        scene.               He was              wearing              a black               Howard's                Pizza          jacket             and

appeared            to be intoxicated;                             the       jacket         pocket          contained                 the         keys     of

the      vehicle's                  legitimate                driver.

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          On May 5, 1994,                        appellant,                 Jerry         LaMere             (LaMere),             was charged
by      information                   with       one        count           of     felony             theft          and      one         count          of

misdemeanor                    theft.                On        September              16,         1994,             LaMere           signed              an
Acknowledgement                        of Waiver               of Rights             By Plea           of Guilty.                  LaMere             then
entered           into            a plea         bargain             agreement              whereby             the        Cascade              County

Attorney's                  office           agreed             to     recommend                 a deferred                 imposition                  of

sentence               on the           felony         theft           charge         on the             condition                 that         LaMere

make      full          restitution                  to        the     owner         of     Howard's                Pizza          for         $9,817,

the     total          damage           to     the        truck.            The county                attorney             further              agreed

to      recommend                 a six-month                   suspended                 sentence             on      the         misdemeanor

theft       charge.                   The agreement                    also       allowed             the      county           attorney               the

option            of          recommending                      reasonable                  fines              or       any         reasonable
conditions                  upon       review         of       the      presentence                   investigation.
          The          court          requested                a presentence                  investigation                        (PSI)         which

showed          that         LaMere          was an admitted                      alcoholic              and had been since                            the

age of nine,                   that      LaMere           had been hospitalized                               previously                 for      "some
kind       of          disorder"                which            LaMere            alleges              is          attention              deficit
disorder,               that          he had no prior                       record          of        felony          offenses             but         had

several           DUI's.              The report                also        stated         that        LaMere          had little                or no

work      experience.

          The          report           recommended                  that         LaMere          be required                 to         submit          to

testing           of        his       blood,         breath,            and bodily                fluids            upon        request,               and

require               him      to      attend         AA meetings                    and         to     pay         restitution                  in      an

amount           to     be determined                     at     sentencing.

          The court                   held     a sentencing                      hearing          on December                 8,     1994.             The
County          Attorney               emphasized               that        LaMere          was an individual                            who spent


                                                                              3
most      of his           time          drinking                and bragging                         that           he was going                 to        go out
and get         drunk.                He emphasized                      that            the         PSI demonstrated                        that           LaMere

didn't       complete                  anything              he started--he                           never               completed            school,          has

an education                    in      carpentry                but       doesn't                   want            to     be a carpenter,                     has

an alcohol                 problem               or       chemical                  dependency                       problem          but        admits          he

doesn't           want           to      go        to      treatment                     for         that.                 The      County           Attorney

suggested                 the           deferred                  imposition                         of         sentence                 with          various
conditions                of     supervision.

          After            the           presentation                          of          testimony                       by       LaMere           and        the

statements                of         counsel,              the         court             stated            at         the        hearing:              I)     that

LaMere       has           been          addicted                 to      alcohol                    and        drugs            since         the        age    of

twelve,         2) that                LaMere            has used               the        entire            system               of government                 and

is     a con          artist,                 3)         that      LaMere                 will            not         address            his         drug       and

alcohol           problems,                4)         that        LaMere                 has      never              maintained             any        kind      of

employment,                 and 5) that                      LaMere            needs             discipline.                        Because          of      these

facts,       the          District                 Court          rejected                  the        plea           agreement              and ordered

LaMere          to        serve          ten        years          in          the        Montana                State            Prison,            plus       six

months       in      the         Cascade                County          jail             on the           misdemeanor                  charge,              to run

concurrently                     with              his          prison               sentence.                             LaMere           appeals             his

sentence.
                                                                                     I

          Did         the             District                  court           err            when             it         failed           to       consider

alternatives                     to        incarceration                            for          a     nonviolent                     felony           offense
pursuant             to        §§ 46-18-225                      and 46-18-201(10),                                       MCA?

          LaMere               argues            that           Montana              law         requires                  the      sentencing               court

to        consider                    alternatives                        to              incarceration                           when           sentencing


                                                                                     4
nonviolent             offenders.                  LaMere        contends            that        since         the     court      did       not
consider             these             alternatives,               this         case         should            be      remanded             for
resentencing.

           The State             argues         that      LaMere          did    not        object         to these            errors        at

sentencing             and cannot               now object.                 The transcript                     of the        sentencing

hearing         shows            that         LaMere's           attorney            did         object         to     the      sentence

imposed         by     the            court     and did          request             reconsideration.                          While        the

objection             and request               for      reconsideration                     was somewhat                limited,            we
conclude            that         it      was sufficient                 to      require            consideration                  of     this

issue       on appeal.

           We have           stated            that      "[cl    riminal             sentencing                alternatives                 are

strictly            matters             of    statute          in Montana."                  State        v.     Stevens           (1993),

259 Mont.             114,            115,    854 P.2d           336,        337.          Therefore,                we will        review

the      District            Court's            interpretation                  of     the        applicable             statutes            as

to      whether         the           court        correctly            interpreted                 them.             Steer       Inc.       v.

Department             of        Revenue            (1990),       245 Mont.                470,      803 P.2d            601.

           Section           46-18-201(10),                     MCA states             that:

           In sentencing          a nonviolent           felony       offender,          the court
           shall    first     consider      alternatives          to imprisonment            of the
           offender       in the state prison,              including         placement      of the
           offender       in a community          corrections         facility        or program.
           1n considering          alternatives           to imprisonment,               the court
           shall    examine the sentencing               criteria       contained         in 46-18-
           225.      If the offender            is subsequently              sentenced       to the
           state     prison      or the women's              correctional            center,     the
           court       shall     state      its      reasons        why       alternatives         to
           imprisonment         were not selected,              based on the criteria              in
           46-18-225,        MCA.      (Emphasis       added.)

Section             46-18-225,                MCA,      sets      out       a list          of     ten      specific             criteria

that,        like          the         directive           in     § 4618-201(10),                          MCA,        requires             the

trial       court          consider            when sentencing                  nonviolent                offenders.              Section


                                                                        5
225 requires               consideration                       of such            things          as where           the    needs       of the
offender           would         be best               served.             These           statutes            do not        provide            the
court       with         any        discretion.                      The          legislature                  has     directed             trial
courts       to make these                        considerations                    before         any nonviolent                    offender

is     incarcerated.

          The      transcript                     reveals           that          the      court          considered              pertinent

facts        concerning                 LaMere's                   background                but       did       not        specifically
consider           any alternatives                           to    incarceration.                        In    a similar            case,          we

stated        that        5 46-18-201,                      'MCA,         "imposes            certain            obligations                 on       a

court       sentencing                 [a nonviolent]                       offender."                    Stevens,           854 P.2d               at

337.       Those         obligations                    include            the      court's           specific             consideration

of      "alternatives                  to         imprisonment"                   according               to    § 46-18-201,                 MCA.

We conclude                that         the            District             Court           did      not        properly             consider

alternatives                   to       incarceration                        for           this        nonviolent                 offender,

pursuant           to     55 46-18-201                     or 46-18-225,                    MCA.

          We remand              for        resentencing.


          Did the          County            Attorney              adequately               support            the plea        agreement?

           The transcript                         of    the        hearing          shows          that        counsel         for      LaMere

anticipated               that         the         Deputy           County          Attorney              who entered                into       the

plea       agreement                would          be present                to     present            the      viewpoints              of      the

prosecution.                   That          deputy           was not             present          and the            County         Attorney

who had not               participated                     in      the      agreement              handled            the     matter.               In

addition,               counsel             for        LaMere        pointed            out        that        he understood                  that

the      person          who prepared                     the       PSI      would          be present               at     the      hearing,

and he also               was not             present.
          As previously                   summarized,                 the     presentation                 made by the              County
Attorney's             office        was quite                 abbreviated,             and emphasized                  the     alcohol
problems          of     the        defendant                 and his         failure         to     complete           anything           he

started           and        then         recommended                  without          explanation                the        deferred
imposition              of      sentence.                      We conclude               this          does       not         meet       the
requirements                 on the        part          of    the     prosecutor              in     connection             with       plea

agreements             as set         forth         in        State     v.     Allen      (1981),           197 Mont.             64,    69,

645 P.2d          380,        382,        as follows:

                   Prosecutors      who engage in plea bargaining                  must meet
          strict      and meticulous            standards        of both       promise    and
          performance          as    a plea         of    guilty       resting        in  any
          significant         degree      on an unfulfilled             plea     bargain   is
          involuntary       and subject         to vacation.              . Prosecutorial
          violations,        even if made inadvertently                or in good faith
          to     obtain      a just          and    mutually        desired        end,   are
          unacceptable.           [Citations       omitted.]
The transcript                  includes               reference              by LaMere's              counsel          to    LaMere's

mental       difficulties.                       He pointed             out     that     the probation                  officer          who
was      doing         the      PSI        had         indicated               LaMere         was      having           significant

problems          answering               the     questions.                 LaMere's          counsel           emphasized             that
the      reason         they         entered              into        the      plea     bargain             agreement             was      in

order      that        LaMere        who had serious                        problems          could        have    such problems

addressed.               He then            discussed                 the     nature          of     the    problems           at       some

length.

          As previously                    mentioned,                 the     Deputy          County        Attorney           who had
agreed       to the          theory         of the             deferred         imposition             of sentence                was not

there      to     present           the         benefits          to        deferred          imposition           so far           as the

State       was        concerned                 and       the        very      abbreviated                statement              by     the

County       Attorney               did     not        meet       the        above      standard            of    Allen.             While

not     required             by statute,                 the     failure         of     the        prosecution           to present

                                                                        7
the      testimony              of     the     person             who prepared                  the    PSI      for         the    State

again       weakened            the     presentation                    to     the      District        Court.
           In     his   motion           for     reconsideration,                         defense       counsel             requested
that       the     sentencing                be postponed                in    order          that    he could             bring    in     a

psychologist               or        other      expert            to    more          fully        acquaint          the     District

Court           with    the          extent           and         nature         of       LaMere's            problems.                 The

District           Court        refused          this        request.

           We conclude                that      the     County           Attorney              here    failed         to     meet       the

strict          and meticulous                 standards               of performance                 of the     plea        bargain.
           We hold          that         the      failure               of      the       prosecutor            to         adequately

support           the   plea          bargain         requires                resentencing.

           We reverse                and remand             for        resentencing.
