                                           No. 02-217

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2003 MT 113N


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

STUART BEZANSON,

              Defendant and Appellant.




APPEAL FROM:         District Court of the Twenty-First Judicial District,
                     In and For the County of Ravalli, Cause No. DC-01-58
                     Honorable Jeffrey H. Langton, Presiding


COUNSEL OF RECORD:

              For Appellant:

                     Brian C. Smith, Worden, Thane & Haines, Missoula, Montana

              For Respondent:

                     Honorable Mike McGrath, Attorney General; C. Mark Fowler,
                     Assistant Attorney General, Helena, Montana

                     George H. Corn, County Attorney; T. Geoffrey Mahar,
                     Deputy County Attorney, Hamilton, Montana



                                                        Submitted on Briefs: November 26, 2002

                                                                  Decided: April 25, 2003


Filed:

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

¶1     Pursuant to Section I, Paragraph 3(c) Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent but shall be filed as

a public document with the Clerk of the Supreme Court and shall be reported by case title,

Supreme Court cause number and result to the State Reporter Publishing Company and to

West Group in the quarterly table of noncitable cases issued by this Court.

¶2     Stuart Bezanson (Bezanson) appeals his sentence, contending that the prosecutor

failed to adequately support the Plea Agreement at the sentencing hearing and that his

Presentence Investigation was deficient. We affirm.

¶3     Bezanson presents two issues on appeal:

¶4     1.   Whether the prosecutor adequately supported the Plea Agreement at            the

sentencing hearing?

¶5     2. Whether the District Court erred in denying Appellant’s motion for a new

Presentence Investigation?

                                        Background

¶6     In April 2001, the Deputy County Attorney filed an Information against Bezanson

charging him with six counts of incest. Bezanson, through his counsel, and the Deputy

County Attorney entered into a plea agreement. According to the agreement, Bezanson

would plead guilty to a reduced charge of four counts of incest. In return, the State would

recommend that Bezanson receive a forty-year sentence with thirty-five years suspended.

Ultimately, Bezanson pled guilty to four counts of incest. At Bezanson’s sentencing hearing,

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Bezanson’s counsel moved the District Court for a new Presentence Investigation, which the

court denied. At the conclusion of the sentencing hearing, the court entered judgment and

sentenced Bezanson to a forty-year term, with twenty years suspended, and restricted his

probation until successful completion of both Phase I and Phase II of the Montana State

Prison Sex Offender Treatment Program. Bezanson timely appealed his sentence.

                                         Discussion

¶7     The standard of review of discretionary trial court rulings in criminal cases is whether

the trial court abused its discretion. State v. Sullivan (1994), 266 Mont. 313, 324, 880 P.2d

829, 836.

                                              I

¶8     1.   Whether the prosecutor adequately supported the Plea Agreement at              the

sentencing hearing?

¶9     As mentioned above, Bezanson and the State entered into a plea agreement whereby

Bezanson pled guilty to four counts of incest in exchange for, among other things, the

prosecutor’s recommendation that Bezanson receive a five-year prison sentence (40 years

with 35 years suspended). Bezanson now argues that the prosecutor failed to adequately

endorse the plea agreement at the sentencing hearing, which resulted in the District Court

sentencing him to twenty years in prison. Bezanson maintains that the prosecutor failed to

comply with his duty to meet the “strict and meticulous” standards of both promise and

performance relating to plea agreements; therefore, he asks this Court to remand the matter

to the District Court for resentencing under the terms of his plea agreement.

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¶10    This Court has addressed the enforceability of plea agreements on several occasions

and has repeatedly held that a plea agreement is a contract between the State and a defendant

and is subject to contract law standards. See State v. Munoz, 2001 MT 85, ¶ 14, 305 Mont.

139, ¶ 14, 23 P.3d 922, ¶ 14. Prosecutors “must meet strict and meticulous standards of both

promise and performance” relating to plea agreements, because a guilty plea resting on an

unfulfilled promise in a plea bargain is involuntary and “[p]rosecutorial violations, even if

made inadvertently or in good faith to obtain a just and mutually desired end, are unaccept-

able.” State v. LaMere (1995), 272 Mont. 355, 359, 900 P.2d 926, 929. See also State v.

Schoonover, 1999 MT 7, 293 Mont. 54, 973 P.2d 230; State v. Bowley (1997), 282 Mont.

298, 938 P.2d 592.

¶11    Bezanson argues for the first time on appeal that the prosecutor’s half-hearted

endorsement at the sentencing hearing breached the plea agreement. The State correctly

points out that Bezanson did not raise this objection in the District Court. On several

occasions this Court has announced that it will not consider issues that are not raised before

the district court because it is unfair to fault the court on an issue it was never given an

opportunity to consider. See State v. Knox, 2001 MT 232, ¶ 3, 307 Mont. 1, ¶ 3, 36 P.3d

383, ¶ 3 (citations omitted). Bezanson cites no authority to indicate that an exception to the

general rule applies in this case. Therefore, we decline to address this issue because

Bezanson did not properly preserve it for appeal.

                                              II


                                              4
¶12    2. Whether the District Court erred in denying Appellant’s motion for a new

Presentence Investigation?

¶13    Bezanson alleges that his Presentence Investigation (PSI) was riddled with

deficiencies and that the District Court erred in denying him a new PSI. He contends that

the District Court’s error resulted in an illegal sentence. While Bezanson directs us to the

statutory requirements of a PSI located at §§ 46-18-111 and -112, MCA, and asserts that his

PSI did not meet these requirements, he fails to support this claim with even one example of

noncompliance. In short, his argument is nothing more than conclusory.

¶14    Bezanson, as the Appellant, has the burden of proving that the District Court erred in

denying his motion for a new PSI. His failure to support his contentions with citations to the

record violate Rule 23(a)(4), M.R.App.P., which provides that “[t]he argument shall contain

the contentions of the appellant . . . and the reasons therefor, with citations to the authorities,

statutes and pages of the record relied on.” Bezanson failed to properly raise specific

deficiencies in the PSI in his appellate brief, and this Court will not presume what he

considered “deficient” about his PSI. See Allmaras v. Yellowstone Basin Properties (1991),

248 Mont. 477, 483, 812 P.2d 770, 773 (holding that the Court would not address an issue

where appellant failed to comply with Rule 23(a)(4), M.R.App.P.). Therefore, we decline

to address this issue. Accordingly, we affirm the District Court.




                                                     /S/ W. WILLIAM LEAPHART

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We concur:


/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER




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Justice Terry N. Trieweiler concurring and dissenting.

¶15    I concur with that part of the majority Opinion which declines to address the

Defendant's objections to the pre-sentence investigation on the basis that his objections

are not stated with sufficient specificity on appeal.

¶16    I dissent from that part of the majority Opinion which declines to address the

Defendant's argument that his sentence should be set aside based on the State's violation

of its plea agreement with him.

¶17    The majority correctly note that the State is held to strict standards of compliance

with plea agreements because a guilty plea based on an unfulfilled promise is in fact

involuntary. However, the majority decline to consider whether the plea agreement in

this case was breached by the State because of the Defendant's failure to object to the

State's conduct in the District Court.

¶18    We have in the past held that although objections are normally waived when not

made in a timely manner in district court, an exception is made for sentences imposed in

a criminal case where the sentence is illegal or exceeds statutory parameters.

¶19    In State v. Brister, 2002 MT 13, ¶ 16, 308 Mont. 154, ¶ 16, 41 P.3d 314, ¶ 16, we

stated that:

       In State v. Lenihan (1979), 184 Mont. 338, 602 P.2d 997, we held that "the
       better rule [is] to allow an appellate court to review any sentence imposed
       in a criminal case, if it is alleged that such sentence is illegal or exceeds
       statutory mandates, even if no objection is made at the time of sentencing."
       Lenihan, 184 Mont. at 343, 602 P.2d at 1000. Thus, even if a defendant
       fails to contemporaneously object at sentencing, we will accept jurisdiction
       of an appeal that has been timely filed which alleges that a sentence is
       illegal or exceeds statutory authority.

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¶20    In this case, if the State breached its plea agreement with the Defendant, his guilty

plea was, in effect, entered involuntarily and his sentence is based on that involuntary

plea. The circumstances are at least equal in magnitude to an illegal sentence. Therefore,

I would apply the same non-waiver rule.

¶21    Having decided that there is no logical reason for distinguishing between sen-

tences entered following breach of a plea agreement and sentences which are otherwise

entered illegally, I would reach the merits of the Defendant's argument and, in doing so,

conclude that the State did, in fact, breach its plea agreement with the Defendant Stuart

Bezanson.

¶22    As inducement to enter into a plea agreement, the State agreed to recommend that

Bezanson be sentenced to four concurrent terms of 40 years with 35 years suspended and

commitment to the Department of Corrections for five years. However, in the pre-

sentence investigation, the State's probation officer recommended that the Defendant be

sentenced to 40 years with only 15 suspended and that he not be eligible for parole for 25

years. The probation officer's recommendation was supported with numerous inflamma-

tory observations. In other words, he recommended that Bezanson be sentenced to five

times more prison time than Bezanson assumed the State would recommend when he

entered into his plea agreement. I disagree with our previous decisions in State v. Bowley

(1997), 282 Mont. 298, 938 P.2d 592, and State v. Sanders, 1999 MT 136, 294 Mont.

539, 982 P.2d 1015, where this Court has approved circumvention of the plea agreement



                                             8
through a recommendation by the probation officer inconsistent with the recommendation

that the State agreed to make in the plea agreement.

      What sense does it make to pay lip service to the principle that an accused
      person has a right to rely on material representations made to him or her as
      an inducement to enter into a plea agreement, but then allow the practical
      effect of that inducement to be circumvented by permitting another agent of
      the same government to do just the opposite of what was promised to the
      defendant? Is there any question whose recommendation the district judge
      will take more seriously? Because of that practical reality, what benefit did
      Bowley [Bezanson] get from pleading guilty?

Bowley, 282 Mont. at 313, 938 P.2d at 601 (Trieweiler, J., specially concurring).

¶23   Because the State's pre-sentence investigation so substantially departed from the

recommendation that the State agreed to make in exchange for Bezanson's guilty plea, I

would set aside his current sentence which, in my opinion, was tainted by the State's

breach of its agreement, and remand this case to the District Court where Bezanson

should have the option of withdrawing his guilty plea or being re-sentenced by a different

district judge after the objectionable and offensive recommendation is stricken from the

pre-sentence investigation.

¶24   For these reasons, I concur in part and dissent in part from the majority Opinion.


                                         /S/ TERRY N. TRIEWEILER




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