 96-559




                                                      No. 96-559

                   IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                            1997



STATE OF MONTANA,

                   Plaintiff and Respondent,

          v.

DANIEL BARNHART,

                   Defendant and Appellant.




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


COUNSEL OF RECORD:

                   For Appellant:

                             Jeffrey T. Renz and Matt Putzier, Jr., Montana Defender
                             Project, University of Montana School of Law, Missoula,
                             Montana

                   For Respondent:

                             Hon. Joseph P. Mazurek, Attorney General
                             Elizabeth Griffing, Ass't Attorney General, Helena, Montana

                             Brant Light, Cascade County Attorney, Great Falls, Montana



                                                              Submitted on Briefs: June 12, 1997

                                                                                   Decided:               July 23, 1997
Filed:


                             __________________________________________

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 96-559


                                                            Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

          Daniel Barnhart (Barnhart), appeals from the Eighth Judicial District Courtþs
order
sentencing him to twenty years in the Montana State Prison. We reverse and remand
for
resentencing.
      The following issue is raised on appeal:
      May a sentencing court bypass the sexual offender evaluation requirement
      of   46-18-111(1), MCA, based upon an assumption that the defendant will
      not cooperate in the evaluation or will not benefit from treatment?

     In August of 1995, Barnhart was charged with sexual assault, a felony, in
violation
of   45-5-502(1), and   45-5-502(3), MCA. Barnhart pled guilty to the charge and the
District Court ordered a sexual offender evaluation to be completed. Barnhart
attended
the first of three evaluation sessions scheduled with Dr. Ron Silvers. Prior to his
second
scheduled session, Barnhart filed a motion to withdraw his guilty plea based on his
belief
that the prosecutor had coerced him into pleading guilty by threatening to seek a
persistent felony offender designation if he pled not guilty. Barnhart then
declined to
further cooperate in the sexual offender evaluation sessions pending a hearing on his
motion to withdraw his plea of guilty.
     The District Court denied Barnhartþs motion to withdraw his guilty plea and,
despite the fact that an evaluation had not been completed, a sentencing date was
scheduled. At sentencing, Barnhart objected to the District Courtþs decision to
impose
sentence without the benefit of a sexual offender evaluation and a recommendation for
treatment. The District Court overruled Barnhartþs objections and imposed a twenty-
year
sentence. Barnhart appeals this twenty-year sentence.
     In State v. Alexander (1994), 265 Mont. 192, 875 P.2d 345, we held that a
district
courtþs consideration of a completed presentence report prior to sentencing is not
discretionary. Alexander, 875 P.2d at 352. Under     46-18-111(1), MCA, a defendant
convicted of violating   45-5-502, MCA, where the victim is under 16 years of age,
must
be evaluated and a recommendation as to treatment must be included in the defendantþs
presentence investigation. Specifically,    46-18-111(1), MCA, provides:
     (1) Upon the acceptance of a plea or upon a verdict or finding of guilty to
     one or more felony offenses, the district court shall direct the probation
     officer to make a presentence investigation and report. The district court
     shall consider the presentence investigation report prior to sentencing. If the
     defendant was convicted of an offense under 45-5-502, 45-5-503, 45-5-504,
     45-5-505, 45-5-507, or 45-5-625 involving a victim who was less than 16
     years of age when the offense was committed, the investigation must
     include an evaluation of the defendant and a recommendation as to

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          treatment of the offender in the least restrictive environment, considering
          community safety and offender needs. The evaluation must be completed
          by a person who is determined to be qualified under guidelines established
          by the department of corrections. All costs related to the evaluation must
          be paid by the defendant. If the defendant is determined by the district
          court to be indigent, all costs related to the evaluation are the responsibility
          of the district court and must be paid by the county or the state, or both,
          under Title 3, chapter 5, part 9.

     Here, as in Alexander, the defendant was convicted of sexual assault of a victim
under 16 years of age. In Alexander, this Court explained that the legislature
amended
subsection (1) of    46-18-111, MCA, so as to mandate an evaluation and a
recommendation as to treatment in the least restrictive environment in light of
community
safety and offender needs. Alexander, 875 P.2d at 351. In addition, we explained
that
the wording of the 1991 statute expressly requires that a district court þshall
direct the
probation officer to make a presentence evaluation and reportþ and that the
þinvestigation
must include an evaluation of the defendant and a recommendation as to treatment by a
qualified person . . . .þ Alexander, 875 P.2d at 351.
     In the instant case, the District Court sentenced Barnhart before it had the
benefit
of Dr. Silversþ evaluation. The State contends that an evaluation would have made no
difference because Barnhart, with his history of prior sex offenses, would not have
qualified for community treatment in any event. In stating, þI donþt know if there
is hope
for [Barnhart] in treatment,þ the District Judge apparently shared this sentiment.
     Although Barnhart refused to participate in scheduled evaluations, his refusal
was
based on the pendency of his motion to change his plea. Barnhartþs desire to avoid
making any statements or admissions prior to a ruling on his motion to withdraw his
plea
should not have been construed either as a ploy to forestall sentencing or as a lack
of
amenability to future treatment. The statute mandates an evaluation. There is no
leeway
for the court to make any assumptions as to whether the defendant will cooperate in
an
evaluation or whether he will be amenable to treatment.
     Section 46-18-111(1), MCA, is clear on its face. Before a defendant convicted
of
violating    45-5-502, MCA, may be sentenced, the district court must order and
consider
an evaluation of the defendant and a recommendation as to treatment. The District
Courtþs decision to sentence Barnhart without the benefit of the requisite evaluation
constitutes reversible error. Accordingly, we reverse the sentence and remand to the
District Court for resentencing consistent with the requirements set forth under
46-18-
111(1), MCA.

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 96-559




                                                            /S/        W. WILLIAM LEAPHART



We concur:

/S/       WILLIAM E. HUNT, SR.
/S/       JAMES C. NELSON
/S/       JIM REGNIER
/S/       KARLA M. GRAY




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