                                                                                              10/03/2017


                                           DA 16-0497
                                                                                          Case Number: DA 16-0497

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2017 MT 243N



CITY OF POLSON,

              Plaintiff and Appellee,

         v.

VINCENT C. LOVATO,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Twentieth Judicial District,
                        In and For the County of Lake, Cause No. DC 15-161
                        Honorable Deborah Kim Christopher, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Chad Wright, Chief Appellate Defender, Alexander H. Pyle, Assistant
                        Appellate Defender, Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman,
                        Assistant Attorney General, Helena, Montana

                        Joshua C. Morigeau, Polson City Attorney, Polson, Montana



                                                    Submitted on Briefs: September 6, 2017

                                                               Decided: October 3, 2017


Filed:

                        __________________________________________
                                          Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1        Pursuant to Section I, Paragraph 3(c), 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        Vincent Lovato appeals his sentence from the Twentieth Judicial District Court.

He asserts that the sentence was an abuse of discretion and that the District Court violated

his constitutional due process rights when it relied on materially false information. We

affirm.

¶3        After his April 2015 conviction in the Polson City Court for violating the privacy

in communication statute, § 45-8-213(1)(a), MCA, Lovato appealed to the District Court.

Upon trial de novo, a Lake County jury convicted Lovato of violating the statute by

sending threatening e-mails, texts, and voicemails to his former landlord in an effort to

recoup his safety deposit. The District Court sentenced him to six months in jail with all

but thirty days suspended and fined him $500 with all but $100 suspended, plus court

costs. Lovato had a prior disorderly conduct charge, of which the District Court was

aware, arising from an altercation with a police officer. He had received a deferred

imposition of sentence for that offense. The deferral period had expired, and the charge

had been dismissed. The District Court referred to the dismissed charge as a “prior”

during the sentencing hearing and as a “conviction” in the written judgment. Lovato




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appeals his sentence, arguing that the District Court abused its discretion and that the

sentence was based on misinformation in violation of his due process rights.

¶4    We review sentences of less than one year of incarceration for legality and abuse

of discretion. State v. Hafner, 2010 MT 233, ¶ 13, 358 Mont. 137, 243 P.3d 435. “A

district court abuses its discretion when it acts ‘arbitrarily without conscientious

judgment’” or when its actions exceed the bounds of reason. State v. Green, 2012 MT

87, ¶ 9, 364 Mont. 515, 276 P.3d 929 (quoting State v. Hernandez, 2009 MT 341, ¶ 7,

353 Mont. 111, 220 P.3d 25). Due process challenges arising from sentencing present

questions of law, which we review de novo. State v. Simmons, 2011 MT 264, ¶ 9, 362

Mont. 306, 264 P.3d 706.

¶5    A sentencing court “may consider any relevant evidence relating to the

defendant’s character, history and mental condition, and any evidence the court deems

has ‘probative force.’” Simmons, ¶ 11 (quoting State v. Collier, 277 Mont. 46, 63, 919

P.2d 376, 387 (1996)); see also State v. Rosling, 2008 MT 62, ¶ 72, 342 Mont. 1, 180

P.3d 1102; Williams v. New York, 337 U.S. 241, 247, 69 S. Ct. 1079, 1083 (1949). A

defendant has a due process right “to explain, argue, and rebut any information which

may lead to a deprivation of life or liberty.” Simmons, ¶ 11. Due process guarantees

against a sentence predicated on misinformation. Simmons, ¶ 11. Misinformation will

justify relief from a sentence only if that sentence was based on “materially false”

assumptions concerning the defendant’s criminal record or on “misinformation of

constitutional magnitude.” Bauer v. State, 1999 MT 185, ¶ 20, 295 Mont. 306, 983 P.2d




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955 (quoting Townsend v. Burke, 334 U.S. 736, 741, 68 S. Ct. 1252, 1255 (1948), and

United States v. Tucker, 404 U.S. 443, 447, 92 S. Ct. 589, 592 (1972)).

¶6    Lovato argues on appeal that the District Court erroneously believed that he had a

prior conviction and relied on this belief during sentencing. He points to the court’s

referring to his dismissed charge as a “prior” and as a “conviction.” He emphasizes that

the sentence he received from the District Court on de novo appeal was harsher than the

monetary fine the City Court had imposed.

¶7    Lovato is correct that a charge dismissed pursuant to a deferred imposition of

sentence is not a conviction. See State v. Tomaskie, 2007 MT 103, ¶ 12, 337 Mont. 130,

157 P.3d 691 (“A conviction does not occur until sentence is imposed.”); State v. Gladue,

209 Mont. 235, 240, 679 P.2d 1256, 1259 (1984) (holding that if a “prior, expired and

unrevoked deferred sentence should [have been] dismissed pursuant to § 46-18-204,

MCA, . . . then the defendant has no ‘conviction.’”). Lovato also is correct that the

record establishes that his disorderly conduct charge was dismissed after expiration of the

deferral period. Upon review of the complete sentencing record, however, we conclude

that the District Court did not rely on materially false information in determining his

sentence.

¶8    Although the District Court mischaracterized the dismissed charge as a prior

conviction, all of the factual information the court considered during sentencing was

accurate.   When the District Court raised the prior disorderly conduct charge, the

prosecutor informed the court that “[t]here was a deferred imposition of sentence for

disorderly conduct in justice court as part of a plea agreement to wrap up three charges;”


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the prosecutor elaborated that “there was a plea agreement where he pled no contest to

disorderly conduct in exchange for the State dismissing charges for resisting arrest and

obstructing a peace officer.” Lovato’s defense attorney also explained that “[t]he only

criminal history that he has is this disorderly conduct conviction that was dismissed

pursuant to a deferred sentence.” When the court later asked for clarification on whether

the current offense had occurred during the time of the deferral for the disorderly conduct

charge and whether the disorderly conduct charge was in fact dismissed, defense counsel

explained that the deferred sentence had been dismissed from Lovato’s public records,

and the prosecutor informed her that the county was aware of the current prosecution and

had not filed any new charges. The District Court responded, “[v]ery well,” and did not

discuss the issue any further during the hearing.

¶9     As the recitation of the record above shows, all of the factual information

presented to the District Court was accurate, despite any mischaracterization of the

dismissed charges by the court.      Further, after the discussions about Lovato’s prior

criminal record, the court went on to explain in detail the reasoning behind the sentence,

which did not include a reference to the dismissed charge. The court focused on the facts

that Lovato had had a long career as a journalist and he knew and understood the

limitations of free speech protections; that he knew how to use the civil legal system to

resolve the dispute and that he in fact successfully pursued a claim against his landlord in

the Small Claims Division of the Lake County Justice Court; that the e-mails, texts, and

voicemails he sent were frightening, especially those regarding his landlord’s mother-

in-law, wife, and daughter; and that Lovato did not seem to understand that his


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threatening words had an impact. In addition, the District Court referenced various

instances of Lovato’s lack of respect for the court throughout trial and during his

testimony. Under these circumstances, the sentence was not based on “materially false”

assumptions concerning Lovato’s criminal record. Bauer, ¶ 20 (quoting Townsend, 334

U.S. at 741, 68 S. Ct. at 1255).

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

our Internal Operating Rules, which provides for memorandum opinions. This appeal

presents no issues of first impression, and does not establish new precedent or modify

existing precedent. We conclude that the District Court did not abuse its discretion in

sentencing Lovato and that the sentence did not violate due process. The District Court’s

judgment is affirmed.


                                               /S/ BETH BAKER


We Concur:


/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT
/S/ DIRK M. SANDEFUR




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