                                                                                             08/29/2017


                                          DA 15-0642
                                                                                         Case Number: DA 15-0642

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2017 MT 212



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

ROBERT LEE OTTO,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Eighth Judicial District,
                       In and For the County of Cascade, Cause No. ADC 14-324
                       Honorable Greg Pinski, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Chad Wright, Chief Appellate Defender, Haley Connell Jackson, Assistant
                       Appellate Defender, Helena, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant
                       Attorney General, Helena, Montana

                       John Parker, Cascade County Attorney, Joshua A. Racki, Deputy Cascade
                       County Attorney, Great Falls, Montana



                                                   Submitted on Briefs: July 19, 2017

                                                              Decided: August 29, 2017


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Appellant, Robert Lee Otto (Otto), pled guilty to one count of Sexual Intercourse

Without Consent and was sentenced by the Eighth Judicial District Court, Cascade County.

He challenges his sentence on appeal, raising the following issue:

       Did the District Court violate Otto’s constitutional rights by basing his sentence on
his refusal to answer a question in the presentence investigative report?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶2     In June 2014, Great Falls police responded to the Rescue Mission to locate a

13-year-old girl, D.R., who had run away from her home in Shelby, Montana.1 D.R. was

found in the company of Otto, a 28-year-old male. D.R. informed police she had arrived

in Great Falls the preceding week and had been with Otto, staying in his vehicle and tent.

She acknowledged having sexual relations with Otto nearly every night, explaining that

when she and Otto were engaged in vaginal intercourse, they usually stopped when it

became too painful. After each attempt at vaginal intercourse failed, D.R. would perform

oral sex on Otto until he ejaculated. When interviewed, Otto initially minimized his

actions, but ultimately admitted to some intercourse and to “allow[ing] D.R. to give me

oral sex.”

¶3     Otto was initially charged with two counts of Sexual Intercourse Without Consent,

and thereafter entered a nonbinding plea agreement under which he pled guilty to the count

premised upon oral sex with D.R. The State agreed to dismiss the second count. The plea


1
 D.R. was 12 years old when she ran away, but during the week she spent with Otto she turned
age 13.
                                         2
agreement recommended a 50-year commitment to Montana State Prison (MSP), with 35

years suspended.2 During the sentencing hearing, the District Court stated:

       The Court also considers that its sentence must protect the public. And this
       case is disturbing. The defendant, twice the victim’s age, deceived and lured
       a young girl to run away from home, some 90 miles away, to engage in sexual
       intercourse.
                                          . . .

       This young victim . . . faces a lifetime of recovery from this assault. She’s
       already been hospitalized for the psychological effects of what occurred. The
       physical and psychological harm Mr. Otto inflicted on this young victim will
       never go away.

¶4     The District Court also stated, “I am not impressed with Mr. Otto’s lack of

cooperation in the presentence investigation, his refusal to answer certain questions,

his . . . total minimization and rationalization of his sexually predatory conduct. Mr. Otto

has demonstrated to this Court no appreciation and no accountability whatsoever . . . . ”

Departing from the sentence recommendation of the plea agreement, the District Court

sentenced Otto to a 60-year commitment at MSP, with 10 years suspended. Otto appeals.

                               STANDARD OF REVIEW

¶5     If an offender is eligible for sentence review pursuant to § 46-18-903, MCA, as here,

we review the sentence for legality only. State v. Herd, 2004 MT 85, ¶¶ 22-24, 320 Mont.

490, 87 P.3d 1017.

                                      DISCUSSION


2
  The plea agreement contained an inconsistency, recommending “A fifty (50) year commitment
to the Montana State Prison with thirty (35) years suspended.” Neither party references this
discrepancy, and both argue on the assumption that the agreement recommended a sentence with
35 years suspended. (Emphasis added.)
                                           3
¶6     Did the District Court violate Otto’s constitutional rights by basing his sentence on
his refusal to answer a question in the presentence investigative report?

¶7     Otto argues the District Court violated his rights to silence and against

self-incrimination by basing his sentence, at least in part, on his refusal to answer a question

in the presentence investigative report (PSI). In the “Defendant’s Statement” section of

the PSI, on page 3, a standard question asked, “What reason do you have for your

involvement in this offense?” In response, Otto wrote, “The Defendant did not answer this

question at the request of [my attorney].” Referencing the comment made by the District

Court during the oral pronouncement about a failure to answer questions, Otto asserts the

District Court imposed a longer sentence than recommended by the plea agreement for this

reason, thereby violating his constitutional rights.3

¶8     The State argues Otto’s unresponsive answer simply demonstrated his lack of

remorse, which was properly considered by the District Court as an indicator of his attempt

to (1) obscure the psychological injuries he inflicted on D.R., (2) maximize his assertion

that he would successfully complete rehabilitation, and (3) minimize the danger he posed

to society. The State urges us to resist examining the oral pronouncement line-by-line, and

instead to consider all the relevant sentencing information considered by the District Court,

including the statutory factors provided in Title 46, Chapter 18, MCA. The State further




3
  Otto did not object to the District Court’s comment during the sentencing hearing, and seeks
review of the issue pursuant to State v. Lenihan, 184 Mont. 338, 602 P.2d 997 (1979), or,
alternatively, pursuant to the doctrine of plain error review. The State does not challenge the
reviewability of Otto’s claim, and we undertake Lenihan review. See State v. Garrymore, 2006
MT 245, ¶ 14, 334 Mont. 1, 145 P.3d 946.
                                             4
asserts that Otto “was not silent, and he did not assert the privilege with respect to every

aspect of his offense.”

¶9     Our case law is clear—district courts cannot infringe upon a defendant’s rights to

silence and against self-incrimination when imposing a sentence. See, e.g., State v.

Shreves, 2002 MT 333, ¶ 20, 313 Mont. 252, 60 P.3d 991; State v. Cesnik, 2005 MT 257,

¶¶ 18-25, 329 Mont. 63, 122 P.3d 456; State v. Rennaker, 2007 MT 10, ¶¶ 52-54, 335 Mont.

274, 150 P.3d 960; State v. Duncan, 2008 MT 148, ¶ 56, 343 Mont. 220, 183 P.3d 111.

We once again caution sentencing courts that these rights must be protected during

sentencing.

¶10    Here, we first must consider that “[a] person claiming the protection of the Fifth

Amendment generally must affirmatively invoke it.” State v. Fuller, 276 Mont. 155, 160,

915 P.2d 809, 812 (1996); (citing United States v. Monia, 317 U.S. 424, 427, 63 S. Ct. 409,

410-11 (1943)); State v. Plouffe, 2014 MT 183, ¶ 23, 375 Mont. 429, 329 P.3d 1255;

Shreves, ¶ 11. The right can be waived if a defendant fails to assert the privilege. Cesnik,

¶ 19 (citing Fuller, 276 Mont. at 160, 915 P.2d at 812). At no point during the sentencing

process did Otto affirmatively invoke his rights to silence and against self-incrimination.

During his plea colloquy, Otto answered each of the District Court’s questions and

provided information about his crime. When completing the PSI process, Otto answered

many questions, including those about his crime:

       In your own words, what did you do to get arrested on this charge?
       I had an online relationship with the victim for two months . . . I allowed the
       victim to perform oral sex on me in my tent.

                                          5
(Emphasis in original.) At no time did Otto affirmatively invoke his right to remain silent

when he answered the PSI questions. Even his “non-answer” to the subject question did

not specifically invoke a constitutional right, but rather simply stated he was not answering

at his attorney’s request.

¶11    District courts “may consider any relevant evidence relating to the nature and

circumstances of the crime, the character of the defendant, the defendant's background

history, mental and physical condition, and any evidence the court considers to have

probative force.” Driver v. Sentence Review Div. in the Sup. Court of Mont., 2010 MT 43,

¶ 17, 355 Mont. 273, 227 P.3d 1018; State v. Collier, 277 Mont. 46, 63, 919 P.2d 376, 387

(1996); Rennaker, ¶ 49; Shreves, ¶ 13. Here, the record demonstrates that the District Court

extensively considered the relevant evidence, as reflected in excerpts of its comments,

which places the contested comment into context:

              [I]n considering the nature and degree of harm [caused] by the
       offender, sexual intercourse without consent is one of the most serious []
       offenses in our criminal justice system. Because minors are particularly
       [vulnerable] to sexual exploitation, the Montana Legislature has enacted
       heightened penalties for sex crime involving those under the age of consent.

                                          .   .   .

              Under the plea agreement, the parties agreed that Mr. Otto only would
       admit to having sexual intercourse without consent on the victim’s 13th
       birthday.
                                         . . .

              Given the facts alleged in the Information about an ongoing sexual
       relationship with the victim, the Court is deeply skeptical that the sexual
       intercourse began on the victim’s 13th birthday.

                                          6
                                               .   .   .

               The Court’s sentence must hold Mr. Otto accountable for his crime. I
       am not impressed with Mr. Otto’s lack of cooperation in the presentence
       investigation, his refusal to answer certain questions, his provision of edited
       and handwritten answers to other questions, and his total minimization and
       rationalization of his sexually predatory conduct. Mr. Otto has demonstrated
       to this Court no appreciation and no accountability whatsoever for the harm
       that he inflicted on this victim.
               The Court also considers that its sentence must protect the public.
       And this case is disturbing. The defendant, twice the victim’s age, deceived
       and lured a young girl to run away from home, some 90 miles away, to
       engage in sexual intercourse.

                                               .   .   .

             This young victim . . . faces a lifetime of recovery from this assault.
       She’s already been hospitalized for the psychological effects of what
       occurred. The physical and psychological harm Mr. Otto inflicted on this
       young victim will never go away.

                                           .   .   .

              The Court has considered that this is Mr. Otto’s first felony, and
       although the Court does not find he has been accountable for the harm that
       he caused, the Court does recognize that he has taken responsibility for his
       crime, and spared the victim from further trauma at trial.
              In balancing each of these factors, and weighing the sentencing
       policies of Montana, I do not find that the sentence recommended by the
       State for Mr. Otto appropriately takes into account the sentencing policy of
       the State of Montana.4

Otto’s written sentence again highlighted the sentencing factors referenced in the oral

pronouncement and stated, “[a] lengthy term of incarceration will hopefully provide the




4
  The record indicates that the proceedings were “recorded by mechanical stenography,” with the
transcript “produced by computer.” We have corrected transcription errors herein.
                                            7
victim with some solace knowing that the Defendant will be harshly punished, and he will

not be in a position to harm others.”

¶12    It is clear, from the record, that the District Court carefully considered Montana’s

sentencing policies, statutory factors, and other relevant evidence in fashioning Otto’s

sentence. The District Court’s reference to Otto’s unresponsive answer, which did not

affirmatively invoke a constitutional right, was made in passing and was part of a much

larger assessment of Otto’s attitudes and character. We perceive no impact upon Otto’s

sentence by reason of this singular comment. Further, “a court can sentence a defendant

based on lack of remorse,” Rennaker, ¶ 49 (citing Shreves, ¶ 20), and the District Court

based this concern on various aspects of the record. As Otto was clearly advised in his plea

agreement, “sentencing in this matter is entirely within the discretion of the presiding

District Court Judge, subject only to the limits of statutory and case law.” Otto’s sentence

was within the statutory limits, and was supported by the totality of the District Court’s

appropriately stated reasons for the sentence.

¶13    Affirmed.


                                                 /S/ JIM RICE

We concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR




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