                                                                                      November 24 2009




                                         DA 09-0194

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2009 MT 397



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

JAMES SCOTT MORRISON,

              Defendant and Appellant.


APPEAL FROM:          District Court of the Eighth Judicial District,
                      In and For the County of Cascade, Cause No. ADC 08-299(d)
                      Honorable Dirk M. Sandefur, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Joslyn Hunt, Chief Appellate Defender; Lisa S. Korchinski, Assistant
                      Appellate Defender; Helena, Montana

               For Appellee:

                      Hon. Steve Bullock, Montana Attorney General; Mardell Ployhar,
                      Assistant Attorney General; Helena, Montana

                      John Parker, Deputy County Attorney; Joel Thompson, Deputy County
                      Attorney; Great Falls, Montana



                                                   Submitted on Briefs: October 21, 2009

                                                              Decided: November 24, 2009


Filed:

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

¶1    James Scott Morrison (Morrison) appeals from the sentence imposed by the

Eighth Judicial District Court, Cascade County, for his conviction of Partner or Family

Member Assault in violation of § 45-5-206(1)(a), MCA, Criminal Mischief in violation

of § 45-6-101, MCA, and Disorderly Conduct in violation of § 45-8-101, MCA. He

seeks resentencing. We affirm.

¶2    Did the District Court err by denying Morrison’s motion to continue his

sentencing in order to further review the presentence investigation report (PSI) and

challenge its accuracy?

                 PROCEDURAL AND FACTUAL BACKGROUND

¶3    In July 2008, the State filed an Information in the Eighth Judicial District Court

charging Morrison with Partner or Family Member Assault, a felony and his sixth

offense; Aggravated Burglary, a felony; Criminal Mischief, a misdemeanor; and

Disorderly Conduct, also a misdemeanor. On the State’s motion, the District Court

dismissed the Aggravated Burglary charge on November 25, 2008. Morrison later pled

guilty to the Disorderly Conduct charge, and on December 9, 2008, a bench trial was held

on the remaining charges. The District Court found Morrison guilty of Partner or Family

Member Assault, Criminal Mischief, Disorderly Conduct, and ordered preparation of a

PSI for sentencing. Two days before the sentencing hearing, Morrison’s counsel received

the PSI. The following day, concerned that the Circumstances of the Offense section of

the PSI recited facts relevant to the dismissed Aggravated Burglary charge and that the

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Criminal History section of the PSI was inaccurate, Morrison moved the District Court

for a continuance in order to investigate and contest these provisions of the PSI.

¶4     At sentencing, the District Court entertained arguments on Morrison’s motion.

Morrison argued that the PSI included facts pertaining to the dismissed Aggravated

Burglary charge under the Circumstances of the Offense section, and challenged seven,

and a possible eighth, conviction of the 28 convictions listed in the criminal history,

asserting that these errors could negatively impact Morrison’s future parole eligibility.

The District Court struck the Circumstances of the Offense section, stating it would not

rely on that information for sentencing, and denied the motion to continue. Further, the

court offered Morrison the opportunity to question the PSI’s author about preparation of

the Criminal History section, and indicated that if the author’s testimony gave reason to

believe that section contained an error, the court would consider a motion to continue the

sentencing. Morrison declined this offer, electing to proceed with sentencing. Morrison

was sentenced to a seventeen year term for Partner or Family Member Assault and

concurrent six month and ten day terms for Criminal Mischief and Disorderly Conduct,

respectively. Morrison appeals.

                               STANDARD OF REVIEW

¶5     A district court’s ruling on a motion to continue is subject to the district court’s

discretion, and this Court reviews the ruling to determine whether the district court

abused its discretion. State v. Anderson, 1999 MT 58, ¶ 10, 293 Mont. 472, 977 P.2d

315.

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                                        DISCUSSION

¶6     Did the District Court err by denying Morrison’s motion to continue sentencing
in order to further review the PSI and challenge its accuracy?

¶7     Noting that constitutional due process rights protect a defendant from being

sentenced based upon misinformation, Morrison argues that his rights were violated when

his motion to continue sentencing was denied. He contends that the Criminal History

section of the PSI is potentially inaccurate and that the Circumstances of the Offense

section does not “represent what occurred at trial as the information in that section related

to facts for the aggravated burglary charge which the State moved to dismiss for a lack of

evidence.” He further maintains that because the parole board is required to consider all

available and pertinent information about his offenses, the board may wrongfully rely on

this information when considering a future parole request.1 Morrison asks that the denial

of his continuance request be reversed and this matter remanded for resentencing.

¶8     The State counters that the District Court did not abuse its discretion when it

refused to continue sentencing “because the court addressed Morrison’s objections to the

PSI by striking the disputed language from the PSI and sentencing Morrison based on

information that was not disputed.” The State further contends that Morrison waived his

right to object to any inaccuracies in the Criminal History section of the PSI because he




1
  A copy of the PSI must be provided to the agency or institution where a defendant is to be
committed. Section 46-18-113(1), MCA. A parole hearing panel must consider “all available
and pertinent information regarding the prisoner, including: (1) the circumstances of the offense;
(2) the prisoner’s previous social history and criminal record . . . .” Section 46-23-202, MCA.

                                            4
chose to proceed with sentencing rather than accept the court’s offer to cross-examine the

author of the PSI about the Criminal History.

¶9     Taking up his argument about the Circumstance of the Offense section of the PSI,

Morrison has not pointed to specific language pertaining solely to the dismissed

Aggravated Burglary charge, and we are thus left to surmise as to what language he is

referring. Both parties appear to take for granted that the PSI contains facts related to the

dismissed Aggravated Burglary charge which were not proven at trial. However, while it

is true that the Circumstances of the Offense section of the PSI was taken verbatim from

the Affidavit, Motion, and Order for leave to file the Information, we discern no facts

referenced in this PSI section which pertain solely to the dismissed Aggravated Burglary

charge or which were not introduced during the trial on the other charges. The statement

that Morrison was “pounding on the door . . . and punch[ing] out two 8”x10” window

panes . . .” in an effort to enter the residence would certainly relate to the Aggravated

Burglary charge, but would likewise be relevant to the Criminal Mischief and Disorderly

Conduct charges of which Morrison was convicted. We see no reason why this language

is inappropriate or impermissibly burdens Morrison’s constitutional rights. In any event,

the District Court struck the section, did not consider it in sentencing Morrison, and did

not abuse its discretion in denying the motion for continuance on this ground.

¶10    Morrison also argues that the Criminal History section of the PSI was inaccurate

because it included up to eight offenses of which he was not convicted or did not

recognize.   He maintains that the District Court’s failure to grant his motion for a

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continuance to research the validity of this information was error, and again points to the

potential impact upon a future parole hearing. However, the District Court offered

Morrison the opportunity to question the PSI’s author about the questioned offenses and

indicated that it would consider a continuance if a problem was revealed. Morrison

declined this offer, and thus waived his objection to proceeding to sentencing. As for the

potential of being sentenced upon misinformation, the District Court stated it would not

consider the questioned offenses, but would be relying on the fact that Morrison’s

conviction for Partner or Family Member Assault was “his sixth conviction for that

offense.” We thus conclude there was no abuse of discretion.

¶11   Affirmed.

                                                /S/ JIM RICE


We concur:


/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA O. COTTER
/S/ BRIAN MORRIS




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