                            NO.    93-394
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1994


STATE OF MONTANA,
          plaintiff and Respondent,
    v.                                                 JUL 1 2 1994
TIMOTHY GLENN LARSON,
          Defendant and Appellant.



APPEAL FROM:   District Court of the Sixteenth Judicial District,
               In and for the County of Fallon,
               The Honorable Joe L. Hegel, Judge presiding.




          For Appellant:
               J. B. Wheatcroft, Attorney at Law,
               Miles City, Montana
          For Respondent:
               Hon. Joseph P. Mazurek, Attorney General,
               Carol Schmidt, Assistant Attorney General,
               Helena, Montana
               Denzil R. Young, Fallon County Attorney,
               Baker, Montana


                              Submitted on Briefs:     April 21, 1994
                                            Decided:   J u l y 12, 1 9 9 4
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.
      Timothy Glenn Larson appeals a judgment of the Sixteenth
Judicial ~istrictCourt, Fallon County, which imposed a greater
sentence than that recommended in the plea bargain agreement.
      We affirm.
      Larson presents the following issues on appeal:
      1.    Did the District Court err by          imposing a d i f f e r e n t
sentence than was recommended by the plea bargain agreement?
      2.    Did the District Court err by not affording Larson a
meaningful right to confrontation?
      3.    Was defendant's right to counsel unduly restricted?
      On December 11, 1992, Larson, a local ranch hand, contacted
Reverend D.K. in Plevna by telephone and arranged to meet with her
the next morning.       Larson testified that prior to the meeting he
had been engaged in a drinking spree for several days.
      Larson met D . R . at the church parsonage around mid-morning and
the   two   discussed    his   emotional   state   of   hopelessness       and
loneliness.     Near the end of the conversation, as both were
standing, Larson brandished a knife and told D.K. to remove her
clothes. D.K. refused to comply but was able to convince Larson to
put the knife away.       Larson then sexually assaulted D.K., pulled
her to the floor, and got on top of her.       D.K. continued to resist
these acts and persuaded Larson to let her go.          D.K.   called local
authorities and Larson was arrested shortly thereafter.
        O December 1 4 ,
         n                         1 9 9 2 , Earson was charged by                 i n f o r m a t i o n i n the
S i x t e e n t h J u d i c i a l District Court with Count I, aggravated a s s a u l t ,

i n v i o l a t i o n of 5 45-5-202 ( 1 1 , MCA, and Count 11, a t t e m p t e d s e x u a l
i n t e r c o u r s e w i t h o u t c o n s e n t , i n v i o l a t i o n of 5 45-5-503,              MCA.   On
December        14,      1992,      Larson,        r e p r e s e n t e d by h i s      court-appointed
a t t o r n e y , p l e d n o t g u i l t y t o both c o u n t s .
        On J a n u a r y 5, 1993, t h e S t a t e s u b m i t t e d an amended i n f o r m a t i o n
amending Count I from a g g r a v a t e d a s s a u l t t o f e l o n y a s s a u l t ,                      in
v i o l a t i o n of     5 45-5-202(2),            MCA.        O March 2 6 ,
                                                                n                       1993,         a second
amended i n f o r m a t i o n was f i l e d amending Count I1 from t h e charge of
attempted sexual intercourse without consent, a felony, t o sexual
a s s a u l t , a misdemeanor, i n v i o l a t i o n of 5 45-5-502,                       MCA.
        O March 2 6 , 1 9 9 3 , a change of p l e a h e a r i n g w a s h e l d .
         n                                                                                              During
t h e h e a r i n g , t h e c o u r t a d v i s e d Larson of h i s r i g h t s a s a d e f e n d a n t
and t h a t i f he chose t o p l e a d g u i l t y h e would be g i v i n g up t h e s e
rights.         The c o u r t ,     a f t e r q u e s t i o n i n g Larson f u r t h e r c o n c e r n i n g
whether        he      committed        the     a c t s he was          charged w i t h ,             accepted
Larson4s g u i l t y pleas.

        Also,       on     March       26,     1993,       Larson       signed        a    plea        bargain

agreement and an tlAcknowledgment of Waiver of R i g h t s by P l e a of

Guilty1' whereby he agreed t o p l e a d g u i l t y t o Count I of t h e amended

i n f o r m a t i o n , and t o Count I1 of the second amended i n f o r m a t i o n .

Larson was advised by t h e c o u r t d u r i n g t h e change of p l e a agreement
t h a t t h e p l e a b a r g a i n agreement was n o t b i n d i n g upon t h e c o u r t and
t h a t it would r e s e r v e r u l i n g on whether t o a c c e p t t h e agreement
u n t i l t h e p r e - s e n t e n c e i n v e s t i g a t i v e r e p o r t was r e c e i v e d .
     On May 1, 1993, Larson's attorney received the pre-sentence
report which contained a statement from his former wife detailing
sexual and physical abuse she allegedly experienced while married
to Larson.     The sentencing hearing was held on May 4, 1993, at
which time the pre-sentence report was read into the record.
Larson did not object to the report nor did he offer additions to
the report.    The court announced to Larson that based upon the
pre-sentence    report, it would   not   accept the plea   bargain
agreement, and provided him with opportunity to confer with his
attorney to decide whether to withdraw his guilty plea.      After
conferring with his attorney, Larson indicated to the court he
would allow the guilty pleas to stand.
     The court sentenced Larson to Montana State Prison to serve
six months for the misdemeanor offense of sexual assault, and ten
years for the offense of felony assault, with two years suspended.
The sentences were to run consecutively. The court imposed a list
of conditions Larson must meet to become eligible for parole or
probation, requiring him to complete Phase I of the Prison's sex
offender treatment program, and requiring him to reimburse Fallon
County for the costs associated with his court-appointed attorney.
From these sentences, Larson appeals.
                              ISSUE 1
     Did the District Court err by imposing a different sentence
than was recommended by the plea-bargain agreement?
     Larson argues that the court approved parts of the plea
agreement when it granted the State's motion to amend Count I1 from
attempted sexual intercourse without consent to sexual assault. He
contends that the District Court erred when it failed to follow the
plea agreement and sentenced him to a greater sentence than the
plea agreement's recommended sentence.
        When the prosecutor and the defendant's attorney, or the
defendant acting pro se, enter a plea agreement, the prosecutor
may :
              (a) move for dismissal of other charges;
              (b) agree that a specific sentence is the
        appropriate disposition of the case; or
              (c) make a recommendation, or agree not to oppose
        the defendant's request, for a particular sentence, with
        the understanding that the recommendation or request may
        not be binding upon the court.
              (2) If a plea agreement has been reached by the
        parties, the court shall, on the record, require a
        disclosure of the agreement in open court or, on a
        showing of good cause in camera, at the time the plea is
        offered. If the agreement is of the type specified in
        subsection (1)(a) or (1)(b), the court may accept or
        reject the agreement, or may defer its decision as to the
        acceptance or rejection until there has been an
        opportunity to consider the pre-sentence report. If the
        agreement is of the type specified in subsection (1)(c),
        the court shall advise the defendant that, if the court
        does not accept the recommendation or request, the
        defendant nevertheless has no right to withdraw the plea.
              (3) If the court accepts a plea agreement, the
        court shall inform the defendant that it will embody in
        the judgment and sentence the disposition provided for in
        the plea agreement.
              (4) If the court rejects the plea agreement, the
        court shall, on the record, inform the parties of this
        fact and advise the defendant that the court is not bound
        by the plea agreement, afford the defendant an
        opportunity to withdraw the plea, and advise the
        defendant that if the defendant persists in the guilty
        plea, the disposition of the case may be less favorable
        to the defendant than that contemplated by the plea
        agreement.
Section 46-12-211, MCA (1991).
     Larson argues that the court approved the plea agreement by
allowing the amendment of Count 11. He asserts that once the court
approved the plea agreement, 5 46-12-211(3), MCA (1991), required
that the court inform the defendant that it would embody in the
judgment and sentence the disposition within the plea agreement.
Therefore, after accepting the plea agreement the court cannot be
said to have rejected or deferred a decision on the plea agreement.
He also argues that a district court should be required to announce
any intended deviation from the plea agreement sufficiently in
advance of sentencing to enable a defendant time to respond
resulting in less expense in attorney costs and to avoid the
possibility   of    longer   incarceration due     to   requests for a
continuance. We disagree.
     A plea agreement is between the prosecutor and the defendant;

a judge may not participate in the agreement and is not bound by
the agreement.     State v. Jacobson (1992), 252 Mont. 94, 826 P.2d
555; 5 46-12-211(c), MCA (1991). Our review of the record does not
support Larson's argument that the District Court accepted the plea
bargain agreement.       The District Court's grant of the State's
motion to amend Count I1 from attempted sexual intercourse without
consent to sexual assault did not signify that the court would or
did approve of the plea bargain agreement. Moreover, when Larson
entered his guilty pleas the court notified Larson that it would
reserve ruling on the plea agreement until after it received the
pre-sentence report and after Larson underwent a psychosexual
evaluation.        The   District   Court   met   the   requirements   of
5 46-12-211, MCA (1991), when it allowed Larson the opportunity to

withdraw his guilty pleas, and advised him that the court was not
bound by the plea agreement and that if he persisted in the guilty
pleas the disposition of his case might be less favorable than that
contemplated by the plea agreement.   Larson cites no case law or
statute that requires the court to inform a defendant of the
sentence it will impose before the defendant decides to withdraw
his guilty plea.    We hold that the court did not err when it
refused to accept the plea bargain agreement and imposed a greater
sentence than that recommended in the agreement.
     Larson also argues that the District Court abused           its
discretion when it ordered him to complete Phase I of the sex
offender treatment program at Montana State Prison before he could
be eligible for parole or probation. Sections 46-18-201 and -202,
MCA, allow the district court to impose additional restrictions or
conditions which are reasonably related to or necessary for
rehabilitation and the protection of society.       State v. Evans
(1991), 247 Mont. 218, 230, 806 P.2d 512, 520.   Here, the District
Court stated the following in its reasons for imposing the
sentence:
          The court recited into the record his reasons for
     imposing the above sentence. Among those reasons set
     forth are the circumstances that convinced the court that
     the if [sic] defendant would reoffend. His criminal
     record as revealed by the pre-sentence investigation
     report and a letter from the defendant's former wife, the
     circumstances of the offenses charged in this cause
     showing the use of a weapon and the defendant's history
     of alcohol abuse and his predictably assaultive acts
     during such periods but in no way excused ther[e]by,
     require that the defendant be dealt with thus sternly for
     the protection of society.
     In sum, we hold that the District Court did not err by
imposing the condition for Larson to complete the sex offender
treatment program since it relates to both Larson's need for
rehabilitation and to the protection of society.
                              ISSUE 2
     Did the District Court err by       not affording Larson a
meaningful right to confrontation?
     Larson argues that he was not given adequate opportunity to
address the contents of the pre-sentence report which he argues
contained unsubstantiated reports of abuse by his former wife. He
argues that he was unable to respond to the report because his
attorney received the report only three days prior to sentencing
and Larson reviewed the statements only minutes before the
sentencing hearing.
     Larson states that the distance between his attorney's office
located in Miles City, and the courthouse located in Baker, was
over 80 miles.   He argues that because he was aware that the costs
of counsel would be assessed to him, and the costs would be an
enormous financial burden in light of his limited earnings as a
ranch hand, that this financial burden restricted his attorney's
approach in defending him.   He also asserts that a request for a
continuance would subject him to another month of incarceration
because law and motion day in Fallon County occurs only one day a
month.
     A pre-sentence report may assist the district court in
determining a proper sentence for a convicted defendant. State v.
Radi (1979), 185 Mont. 38, 40-41, 604 p.2d 318, 320.        A defendant
who contests any matter contained in the pre-sentence report has
the   affirmative   duty   to   present    evidence   demonstrating   the
inaccuracies.   State v. Trangsrud (1982), 200 Mont. 303, 308, 651
P.2d 37, 40 (citing to     w, 604 P.2d      318).
      In the present case, Larson and his attorney received the
pre-sentence report but did not object or present witnesses, nor
did they offer any other evidence to contradict the report. Larson
did not avail himself of a continuance, which is a defense strategy
that would have allowed him time to respond to the report and rebut
the information.    We hold that the District Court afforded Larson
a meaningful right to confrontation.
                                 ISSUE 3

      Was defendant's right to counsel unduly restricted?
      Larson again argues that the barriers of finances, time, and
distance from his attorney unduly restricted his right to counsel.
Apparently Larson argues that his right to counsel was restricted
because Larson and his attorney had to consider these barriers when
planning his defense. Larson asserted that he believed he would be
certain to face some liability for his conduct, and for expediency
sake, he was forced to rely on the plea bargain agreement for the
outcome in the case.
      This Court may review a district court's decision or any
alleged error objected to which involves the merits or necessarily
affects the judgment. Section 46-20-104(2), MCA.         An appeal based
upon the defendant's decisions in his defense strategy is not a
proper basis for an appeal.   We hold that Larson's contention that

his right to counsel was unduly restricted is not subject to review

by this Court.

     Affirmed.




                                         Justice


We concur:
                                          July 12, 1994

                                  CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:


J. B. Wheatcroft
Attorney at Law
P.O. Box 1081
Miles City, MT 59301

Hon. Joseph P. Mazurek
Attorney General
Justice Bldg.
Helena, MT 59620

Denzil R. Young
Fallon County Attorney
P.O. Box 620
Baker, MT 59313


                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE OF MONTANA
