                                   NO.      95-084
               IN THE SUPREMECOURT OF THE STATE OF MONTANA
                                         1995

STATE OF MONTANA,
              Plaintiff    and Respondent,
         v.
DANETTE TENAS,
              Defendant    and Appellant.




APPEAL FROM:         District  Court of the Twentieth Judicial   District,
                     In and for the County of Lake,
                     The Honorable C.B. McNeil, Judge presiding.


COUNSEL OF RECORD:
              For Appellant:
                     Roberta   Hoe, Attorney     at Law, Polson,    Montana
              For Respondent:
                     Hon. Joseph P. Mazurek, Attorney    General,         Pamela P.
                     Collins,   Assistant    Attorney     General,           Helena,
                     Montana;  Kim Christopher,      Lake County          Attorney,
                     Mitchell  A. Young, Deputy Lake County               Attorney,
                     Polson, Montana


                                         Submitted   on Briefs:    July     13, 1995
                                                       Decided:    August     17, 1995
Filed:
Justice           Karla        M. Gray delivered                 the Opinion            of the Court.

         Danette           Tenas (Tenas) appeals                      from the Judgment entered                     by the
Twentieth              Judicial        District        Court,           Lake County,           on her conviction
by Alford              plea     of the offense             of negligent                homicide.             We affirm.
         The dispositive                   issue      on appeal           is whether          the District             Court
abused its              discretion           in sentencing               Tenas.
         A complaint                was filed         in the Justice                  Court    of Lake County               on
July       9,          1993,        charging         Tenas        with        the      offense          of     negligent
homicide,              a felony,          in violation           of § 45-5-104,               MCA. The complaint
alleged           that,       on or about May 2, 1992, Tenas negligently                                      caused the
death      of a human being by driving                               a vehicle         across      the center             line
on Highway 93 and causing                          a head-on             collision.           An information               was
later      filed          in the District             Court          charging         Tenas with         the offenses
of negligent                homicide,          a felony,          and negligent               vehicular          assault,
a misdemeanor.                    Tenas pleaded            not guilty               to both      charges.
         After          a number of continuances                         and related           waivers         of speedy
trial      rights,             an omnibus          hearing           was held          on March 16,             1994.            A
jury      trial           was scheduled            and,        later,        rescheduled          for        October       13,
1994.
          In September                of     1994,     the       State        of    Montana        (State)        filed          a
proposed           plea agreement              and Tenas filed                 a Verified        Request to Enter
Guilty       Plea and Waiver                   of Rights.               Under the plea           agreement,            Tenas
would plead                guilty         to the negligent                homicide        charge        and the State
would      dismiss             the negligent             vehicular            assault         charge.          The State
agreed            to      recommend           a    sentence             of     10     years      in      the      Women's
Correctional                  Facility,        with      all      but        90 days suspended                and the        90
                                                                 2
days       to     be        served            in      the          Lake          County            Jail;             Tenas              was        free       to
recommend              any        sentence             she         felt          was        appropriate.                              The     State         and
Tenas       agreed               that      she         would              not       be       sentenced                     in     excess            of      the

State's           recommendation.                          In      the          event        the         District                 Court          rejected

the      plea      agreement,                 Tenas           would             be allowed                   to     withdraw                 her     guilty

plea,       enter          a not         guilty            plea           and proceed                    to       trial.

          The District                   Court          subsequently                        accepted                the          plea        agreement,

stating           that            Tenas'            sentence                would                not         be      greater                 than          that

recommended                by      the     State            or      less            than         that         recommended                     by Tenas.

Tenas          then        entered             an       Alford              plea            to         the        charge               of     negligent

homicide.               The court              accepted                 the         plea,         granted             the         State's            motion

to      dismiss            the      negligent                 vehicular                  assault                  charge              and     ordered             a

presentence                investigation                      report                (PIR).

          Thereafter,                   Tenas         filed          a brief                in     support                 of     her        sentencing

recommendations.                         In        summary,                she       recommended                      that            imposition               of

sentence              be     deferred                for         five           years             under             certain                 conditions,

including               that            she         enter            an          appropriate                        rehabilitation                          and

treatment              center            capable              of     addressing                        both         chemical                 dependency

issues          and the           closed           head injury                   she contends                       she sustained                     in    the

vehicle           collision              from         which          the         charges                against                 her     arose.

          At      the        sentencing                hearing,                  testimony                   and      oral            argument             were

presented.                  The District                    Court           sentenced                   Tenas         to         10 years             in    the

Women's           Correctional                     Facility               and suspended                       all      but            90 days,            which

were      to be served                   in the         Lake County                      Jail.               The court                 provided            that

Tenas          could         serve         the         last         30 days                 of         the        90 nonsuspended                          days
either          in an in-patient                       treatment                    program             or on house                     arrest        if      she

arranged           and paid              for         either           option.                    Conditions                     were        imposed           for

                                                                                3
                the    full       period             of       Tenas'          suspended                 sentence.

                          The      court's                stated           reasons                for           the     sentence             were         that        it
                conformed           to        the      parameters                  of the          plea          agreement            and provided                  for

                both      punishment                 and an opportunity                             for          rehabilitation.                        The court
                also      took         into         consideration                    Tenas'             youth          and relative                absence            of

                a prior          criminal               record           and her            lack          of      any expressed                   remorse            for

                the    death           caused          by her            drinking              and driving.                     Tenas         appealed.
                          Tenas         moved to               stay       execution                of      the         judgment            and for         release

                on her own recognizance                                 pending          appeal.                  The District               Court        granted

                the     motion.

                          Did the             District               Court         abuse          its       discretion                in     sentencing
                          Tenas?

                          Sentencing                   judges           are        granted              broad          discretion             to        determine

                the     appropriate                  punishment.                     State          v.      Alexander                (1994),            265 Mont.

                192,      203,      875 P.2d                 345,       352        (citation              omitted).                 Where the            sentence

                imposed           is          within            the        limits            of          the          applicable             statutes,                we

                generally              will          not        find          an     abuse          of          discretion.                  See         State        v.

                Losson          (1993),             262 Mont.              342,        352,         865 P.2d                 255,     261.

                          Section               45-5-104,                 MCA,         defines                   the        offense          of         negligent

                homicide           and sets                  forth       the        statutory               parameters                for      sentencing                  a

                person        convicted                of      the      offense.               The statute                   authorizes             a sentence

                of     imprisonment                    for      any       term        not      exceeding                    10 years         or     a fine           not

                exceeding              $50,000,               or both.              Section              45-5-104(3),                 MCA.         It     is      clear

                that      the     District                Court's             sentence             of 10 years'                 imprisonment                   in    the
                Women's          Correctional                        Facility,              with          all         but     90 days         of        that        term

                suspended              and that               90 days            to be served                    in    the     Lake        County         Jail,        is

                well      within              the      applicable                  sentencing                   statute.


                                                                                             4




__-,-.,.-.,.-    -
          Nor      does          the        court's              sentence                 violate            the             terms         of    the        plea

agreement              between              the     State          and Tenas.                    Pursuant                to that             agreement,
the     State          recommended                      a sentence                  of      10 years'                   imprisonment,                       with

all     but      90 days           suspended                     and those                 days        to     be served                    in    the         Lake

County         Jail.             Tenas             made          her         own sentencing                         recommendations,                           as

permitted              by the          agreement.                      The court                 accepted                the        plea        agreement

and     sentenced                Tenas              within             its      parameters,                        as         it      affirmatively

obligated              itself           to        do.

          Tenas          advances                   a        variety           of         arguments                     in         support         of         her

contention                that          the          District                 Court             erred          in            not      granting                her
request          for      a deferred                         imposition              of     sentence.                        Her      arguments               are

not     persuasive.

          Tenas         argues              that        the      court         did        not     meet            its        responsibility                     to

be fully           informed                  on any mitigating                              or      aggravating                       circumstances

that      properly              may influence                      the        sentencing                decision.                     This       argument

is based           on asserted                     inaccurate                 and biased                information                     contained               in

the      PIR       prepared                  by         Dave       Weaver                 (Weaver),                 as         well         as     omitted

material            she          contends                    should           have         been          included.                      While               Tenas

argues         generally                that            5 46-18-112,                  MCA,             requires                the      inclusion               of

certain             information                          in       a          PIR,          she          does                 not       assert                with

particularity                    that              information                  required                 by         the            statute             is     not

included           in      some form                     or     fashion             in      the        PIR Weaver                     prepared;               nor

does       our     review              of     the            PIR indicate                  a lack            of         compliance               with         the

statutory              requirements.
           Relying              on State                v.     McPherson                  (1989),           236 Mont.                  484,       771 P.2d

 120,      rev'd         on other                  grounds,              see        State         v.        Staat             (1991),            248 Mont.

 291,      292-93,              811 P.2d                 1261,          1262,            and      the        Fourteenth                    Amendment's

                                                                                5
due process                 clause,           Tenas            also      argues         that         she was entitled                       to have
her     sentence               predicated                on correct                information.                    She contends                     that
Weaver's             failure            to        include             information              about         her      medical               history

and      current                closed                head       injury,               together           with            his         erroneous
opinions             about            her      psychological                      condition             and        lack         of      remorse,

resulted             in    the District                   Court's           reliance            on inaccurate                    information

in     sentencing                her.

             The     record            reflects                that,         at      the       sentencing              hearing,                    Tenas

stated          that           she had numerous                        comments              and corrections                     relating              to

the      PIR,         a number               of        which          related           to     expressions                of      opinion              by

Weaver.                  The     court            permitted                her     to        present          her      objections                    and

corrections.                      In         addition,                she        cross-examined                    Weaver             fully          and

presented                 a three-page                  letter           from      her        doctor         addressing                 portions

of     the     information                   contained                in the       PIR and expressing                           the     doctor's

disagreement                     with             a     comment              by        Weaver           that          Tenas             was          not

remorseful.
             While         McPherson               requires             that       a criminal            defendant's                    sentence

be predicated                   on substantially                           correct           information,                 it     also         states

that     we presume                   a district                court          to be correct                 and place                the     burden

of     presenting                inaccuracies                    on the           defendant.              McPherson,                     771 P.2d

at       123-24.                      Here,              Tenas'             assertions                 regarding                      inaccurate

information                    rest         primarily                 on     differences                of      opinion.                      It      was

within             the     province               of     the      sentencing                  court      to        weigh         conflicting

opinions             and interpretations                               and give              them     such     weight            as it             found

appropriate.                     We conclude,                     therefore,                  that     Tenas          has        not        met       her

burden          of establishing                         that      the       District           Court         relied            on inaccurate
information.
         Tenas           also          argues             that          her         constitutional                         right           to         equal

protection            of        the      laws         entitled                her     to      a deferred                   sentence                  on the
basis       that      an allegedly                    similarly                 situated               defendant                received               such

a sentence.                She cites                no authority                     for      the       proposition                      that         every

sentence           involving                similar           circumstances                      requires                 imposition                  of    an

identical            sentence               and we know of                       no such               authority.

         Moreover,                Tenas'            equal           protection                   argument--like                          her          other

constitutional                    arguments--totally                                ignores             the         fact          that          she        was

sentenced           in accordance                     with         her plea            agreement.                     Tenas         can present

any argument               about            the     inequity              or disparity                   of        her     sentence                  to the

Sentence           Review             Division;             we do not                review            such         matters              on appeal.

u       State        v.      Almanza               (1987),              229 Mont.                383,          386,         746      P.2d             1089,

1090-91.

         Tenas'           contention                that          her     sentence               is     cruel         and unusual                     under

the     constitution                    also        requires              little             discussion.                        We repeatedly

have        held          that          a        sentence               which          falls             within              the          statutory
sentencing                guidelines                     does           not         violate              the         Eighth               Amendment

prohibition               against            cruel          and unusual                punishment.                        See,      e.9.,             State

v.     Peck        (1993),            263 Mont.              1,      4,       865 P.2d                304,         306.

         Finally,               Tenas'            reliance              on State            v.        Burris             (19751,           168 Mont.

195,        542      P.2d             1223,         for           the         proposition                    that          this          Court             has

indicated            a preference                     for         deferring                imposition                of      sentence                 under

circumstances                    such       as those              now before                us is        misplaced.                      In Burris,

we      addressed                 a     specific                 statutory                 presumption                     in       favor             of       a

deferred            sentence                upon       the        first          conviction                   of     a person               under             21

years       of     age      for        a drug-related                     offense.                Burris,                542 P.2d               at    1224-

25.         That      statute               is     not       at     issue           here         and,         therefore,                   Burris             is
totally           inapplicable.

          The      sentence           of     the       District                 Court        is        within           the      statutory

parameters             set        forth      in       § 45-5-104(3),                         MCA,        for          the      offense          of

negligent            homicide.              The sentence                   is     also       within             the     parameters              of

Tenas'        plea      agreement              with         the      State.               Tenas          has      not         established
that       the       District              Court           relied           on         information                    which          was      not

substantially                correct           in     sentencing                  her.            See McPherson,                     771 P.2d
at     123.         Therefore,              we conclude                    that        the        District             Court          did     not

abuse       its      discretion             in      sentencing                  Tenas.

          Affirmed.
          Pursuant           to      Section          I,     Paragraph                 3 (c),          Montana          Supreme             Court

1988 Internal                Operating              Rules,          this        decision               shall          not     be cited          as
precedent            and shall            be published                by its             filing          as a public                 document

with      the      Clerk        of    the      Supreme            Court           and by a report                       of     its     result

to     Montana        Law Week,             State          Reporter               an              st    Publishin




We Concur:




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