                                                                                           October 4 2011


                                         DA 11-0063

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        2011 MT 249N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

FLOYD LEE CARPENTER,

              Defendant and Appellant.


APPEAL FROM:          District Court of the Nineteenth Judicial District,
                      In and For the County of Lincoln, Cause No. DC 10-28
                      Honorable James B. Wheelis, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Scott G. Hilderman; Law Offices of Scott G. Hilderman P.C.,
                      Kalispell, Montana

               For Appellee:

                      Steve Bullock, Montana Attorney General; Micheal S. Wellenstein,
                      Assistant Attorney General, Helena, Montana

                      Bernie Cassidy, Lincoln County Attorney; Robert Slomski, Deputy
                      County Attorney, Libby, Montana



                                                  Submitted on Briefs: September 7, 2011

                                                              Decided: October 4, 2011


Filed:

                      __________________________________________
                                        Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(d), 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     Pursuant to a plea agreement, Floyd Lee Carpenter (Carpenter) pled guilty to the

felony sexual assault of a 15-year-old girl living in the home of his girlfriend.       In

exchange for his guilty plea, the State dismissed three counts of sexual intercourse

without consent and one count of felony criminal distribution of dangerous drugs. The

Nineteenth Judicial District Court, Lincoln County, sentenced Carpenter to seven years at

the Montana State Prison, and designated him a level II sex offender. Carpenter appeals

from this sentence.

¶3     Carpenter raises the following issues on appeal:

¶4     Issue 1: Did the District Court adequately state its reasons for imposing the

sentence?

¶5     Issue 2: Did the District Court violate Carpenter’s due process rights by

considering inaccurate information in the pre-sentence investigation?

¶6     In April 2010, the State filed an information charging Carpenter.        The State

alleged that Carpenter had forced the victim on three separate occasions to perform oral

sex upon him, and that he had provided her some of his medical marijuana.


                                            2
¶7     Carpenter and the State later entered into a plea agreement whereupon he agreed

to plead guilty to a single charge of felony sexual assault. Carpenter also acknowledged

that the sentencing judge would not be bound by the recommendations of either party or

the probation officer, and that he could be sentenced up to the maximum penalty

provided by law.

¶8     Carpenter’s sexual offender evaluation recommended that the District Court

designate him a level I sex offender, calling for a recommendation of a deferred three-

year sentence according to the plea agreement. Probation and Parole’s pre-sentence

investigation (PSI) report recommended a five-year suspended sentence. Nevertheless,

the District Court sentenced Carpenter to seven years in the Montana State Prison,

designated him a level II sex offender, and ordered that he complete phase one of the

prison sex offender treatment program before he would be eligible for parole.

¶9     We review a criminal sentence for legality. State v. Hill, 2009 MT 134, ¶ 19, 350

Mont. 296, 207 P.3d 307. When the issue on appeal concerns whether the district court

violated the defendant’s constitutional rights at sentencing, the question is a matter of law

which we review de novo to determine whether the district court’s interpretation of the

law is correct. State v. Legg, 2004 MT 26, ¶ 24, 319 Mont. 362, 84 P.3d 648.

¶10    Montana law requires that when a sentence is pronounced, the judge “shall clearly

state for the record the reasons for imposing the sentence.” Section 46-18-102, MCA. In

this case, the District Court cited three primary reasons for imposing its sentence: (1) that

it provided punishment for Carpenter’s knowing act, (2) that the case was not suitable for

a deferred or suspended sentence, and (3) that it provided protection to the public. While

                                             3
the sexual offender evaluation found Carpenter’s act to be “situational,” the District

Court stated that it did not find “younger women living in a house where they are

available to people to be that unusual.” Moreover, while Carpenter described the sex

with the victim as consensual, the District Court noted the victim’s allegations to the

contrary. Thus, while circumspect in stating its reasons for imposing the sentence that it

did, the District Court nonetheless satisfied the requirements of § 46-18-102, MCA.

¶11    Carpenter also argues that the District Court violated his due process rights when

it considered misinformation that was contained in the PSI for which he was never given

the opportunity to respond. A sentencing court may consider “any matter relevant to the

disposition” of an offender. Section 46-18-115(1), MCA. However, a defendant may not

be sentenced based upon misinformation. Bauer v. State, 1999 MT 185, ¶ 21, 295 Mont.

306, 983 P.2d 955. If a defendant seeks to overturn a sentence, “the defendant has an

affirmative duty to show the alleged misinformation is materially inaccurate.” State v.

Phillips, 2007 MT 117, ¶ 17, 337 Mont. 248, 159 P.3d 1078.

¶12    In this case, Carpenter was represented by counsel at the sentencing hearing and

was given the opportunity to present witnesses. He introduced no evidence indicating

why the PSI was inaccurate, nor does he specify what that misinformation was in this

appeal. Merely claiming the information is invalid is insufficient. Phillips, ¶ 21.

¶13    We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our Internal Operating Rules, which provides for noncitable memorandum opinions. The

issues in this case are legal and are controlled by settled Montana law, which the District

Court correctly interpreted.

                                             4
¶14   Affirmed.




                          /S/ MIKE McGRATH


We concur:

/S/ MICHAEL E WHEAT
/S/ JIM RICE
/S/ JAMES C. NELSON
/S/ BETH BAKER




                      5
