02/28/2017


                                          DA 15-0389
                                                                                             Case Number: DA 15-0389

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2017 MT 39



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

MATTHEW DAVID SHERMAN,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Twenty-First Judicial District,
                       In and For the County of Ravalli, Cause No. DC 13-220
                       Honorable Jeffrey H. Langton, 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, Tammy A. Hinderman,
                       Assistant Attorney General, Helena, Montana

                       William E. Fulbright, Ravalli County Attorney, Thorin Giest, Deputy
                       County Attorney, Hamilton, Montana


                                                   Submitted on Briefs: February 1, 2017

                                                               Decided: February 28, 2017


Filed:

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

¶1     Matthew Sherman pleaded guilty to two felonies and one misdemeanor for

possessing dangerous drugs with intent to distribute. At sentencing, the District Court

allowed the State to admit evidence, over Sherman’s objection, of an allegation that

Sherman had raped his cellmate while in jail. The court sentenced Sherman to 100 years

in prison as a persistent felony offender. Sherman argues that his sentence must be

reversed because the court relied on the rape allegation after assuring him that it would

not do so.

¶2     We affirm.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶3     In October 2013, Ravalli County Sheriff’s officers arrested Sherman at a motel in

Hamilton, Montana, after receiving information that he was distributing dangerous drugs.

Officers recovered methamphetamine and marijuana upon searching Sherman’s motel

room and vehicle.

¶4     Sherman entered into an open plea agreement in December 2014 in which he

pleaded guilty to three offenses: felony possession of dangerous drugs with intent to

distribute; felony possession of dangerous drugs; and misdemeanor possession of

dangerous drugs. The plea agreement provided a maximum possible penalty for the three

combined counts of 200 years and six months in prison, plus a $100,500 fine. It provided

also that Sherman would be sentenced as a persistent felony offender.

¶5     The court held a sentencing hearing in April 2015.               The Pre-Sentence

Investigation (PSI) report contained a summary of Sherman’s criminal history, which
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included numerous drug-related convictions.       The report added a “Jail Adjustment

Summary” discussing Sherman’s myriad behavioral incidents while detained at the

Ravalli County Detention Center after his October 2013 arrest. The summary included,

among other incidents, Sherman’s attempts to “cheek” or “pocket” his medications, his

striking another inmate in the face, an allegation that he intimidated other inmates to give

him their commissary items and extra phone minutes, and an allegation that he had raped

his cellmate in February 2015. The rape allegation was still under investigation at the

time of the sentencing hearing and had not resulted in a criminal charge.

¶6     At the sentencing hearing, the State sought to admit a jail incident report

discussing the alleged rape.     Sherman’s counsel objected to the report and to the

discussion of the alleged rape in the PSI report on the grounds that investigation into the

incident was ongoing and that the court’s consideration of the incident would violate

Sherman’s due process rights. The District Court overruled the objection, reasoning that

evidence of the alleged rape “would have some limited utility in regard to the

Defendant’s behavior in the detention center.” Of the substance of the rape allegation,

the court stated, “[I]f there’s [sic] no convictions or charges even, I won’t be relying on

this in making my sentence.” Sherman offered no evidence to rebut the allegation.

¶7     The court sentenced Sherman to 100 years in prison and explained in open court

the reasons for the sentence. It observed that Sherman had at least ten prior felony

convictions, most of which pertained to possessing, transporting, or distributing

controlled substances, in addition to various drug-related misdemeanor offenses.          It

highlighted Sherman’s 2003 convictions for possession of methamphetamine and using a
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communication device to facilitate distribution, for which Sherman was sentenced to

seven years in prison and four years of probation. It emphasized that Sherman had

absconded from probation and was in violation of that probation when he was arrested in

October 2013. It noted that, as a primary source of methamphetamine distribution in

Ravalli County, Sherman had caused significant “social damage” to the community. The

court stated that it recognized many of the names of persons to whom Sherman had

distributed methamphetamine and noted that their methamphetamine use had caused

significant damage to them and to their families. In some cases, the court pointed out, the

methamphetamine users had lost their parental rights because of their addictions. Due to

Sherman’s extensive record of drug-related offenses, the court doubted that Sherman

would be amenable to treatment or rehabilitation.

¶8    The court noted further that Sherman had a “lengthy history of problems in the

jail . . . [m]ore than anybody [the court had] ever sentenced before.” The court did not

specifically mention the allegation that Sherman had raped his cellmate. It concluded

that the primary goal of the sentence should be to remove Sherman permanently from the

drug trade. Sherman appeals.

                               STANDARD OF REVIEW

¶9    Whether a district court violated a defendant’s constitutional rights at sentencing is

a question of law that we review de novo.           State v. Simmons, 2011 MT 264, ¶ 9,

362 Mont. 306, 264 P.3d 706.




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                                      DISCUSSION

¶10    Whether the District Court violated Sherman’s due process rights at sentencing.

¶11    Sherman contends that the District Court violated his due process rights by falsely

assuring him that it would not rely on the allegation of rape in making its sentencing

decision. He asserts that he relied on this assurance in choosing not to offer any evidence

to rebut the rape allegation. He argues that the court impermissibly considered the rape

allegation in imposing sentence, thereby misleading Sherman and effectively denying

him the opportunity to explain or rebut the allegation.

¶12    The Montana and United States constitutions guarantee against depriving a person

of liberty without due process of law, and these protections apply in sentencing hearings.

U.S. Const. amend. XIV, § 1; Mont. Const. art. II, § 17; State v. Webb, 2005 MT 5, ¶ 18,

325 Mont. 317, 106 P.3d 521.       “Due process requires that an offender be given an

opportunity to explain, argue, and rebut any information, including pre-sentencing

information[,] that may lead to a deprivation of life, liberty, or property.” State v.

Mainwaring, 2007 MT 14, ¶ 16, 335 Mont. 322, 151 P.3d 53 (citing Bauer v. State,

1999 MT 185, ¶ 22, 295 Mont. 306, 983 P.2d 955).

¶13    A defendant’s due process rights include protection against a sentence “predicated

on misinformation.”     Simmons, ¶ 11; accord State v. Mason, 2003 MT 371, ¶ 21,

319 Mont. 117, 82 P.3d 903. “[W]here a sentencing court is found not to have relied on

improper or erroneous information in sentencing a criminal defendant,” however, “the

defendant is not entitled to resentencing on due process grounds.” State v. Phillips,

2007 MT 117, ¶ 17, 337 Mont. 248, 159 P.3d 1078 (quoting Mason, ¶ 21; Bauer, ¶ 24).
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The defendant has an “affirmative duty” to show that the sentence was premised upon

“materially inaccurate or prejudicial” information. Bauer, ¶ 22.

¶14   Sherman argues that he was denied “an opportunity to explain, argue, and rebut”

the rape allegation. Mainwaring, ¶ 16. But the court overruled Sherman’s objection to

the State’s evidence of the allegation and told Sherman that the evidence “would have

some limited utility in regard to [Sherman’s] behavior in the detention center.” Sherman

knew of the allegation when he received the PSI report before sentencing and was

advised of the court’s ruling on the incident report. The court did not preclude Sherman

from rebutting this evidence; instead, Sherman decided that such a rebuttal was not

necessary in light of the court’s comments.

¶15   Sherman’s due process argument rests on the premise that the court relied on the

unproved rape allegation in making its sentencing decision. In Simmons, we held that the

sentencing court did not violate the defendant’s due process rights when it limited

Simmons’s cross-examination of a jail detention officer who testified to Simmons’s

behavioral issues at the detention center. Simmons, ¶¶ 6, 12. The court stated that it

would not “grade” Simmons on her behavioral issues in making its sentencing decision.

Simmons, ¶ 6. When the court sentenced Simmons, it gave numerous reasons for its

decision, including a reference to her “negative behavior in the detention center.”

Simmons, ¶ 7. We concluded that, apart from Simmons’s behavior in the detention

center, “the District Court considered numerous pieces of evidence pertaining to

Simmons’s potential for rehabilitation and the severity of the crimes she committed.”

Simmons, ¶ 12. We held that Simmons had not “met her burden on appeal of showing the
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sentencing court relied on materially false allegations in forming the sentence.”

Simmons, ¶ 12.

¶16    Here, as in Simmons, the record does not support a finding that the District Court

relied on the rape allegation in making its sentencing decision. The court’s detailed

explanation of its decision focused on Sherman’s lengthy criminal history, the “social

damage” his criminal actions had caused, the improbability of his rehabilitation, and the

need to remove him from the drug trade.          It emphasized that Sherman was “a

methamphetamine distributor to other distributors” and that a treatment program would

not be successful. The court told Sherman, “you’ve been in prison before; you’ve not

changed your behavior as a result of that experience.” Due to the court’s conclusion that

Sherman would not be “amenable to treatment or rehabilitative efforts,” the court told

Sherman, “it seems to me that my primary duty here today is to incapacitate you so that

you will be permanently removed from the drug trade and never have the opportunity to

destroy any other lives with this activity.”    The court gave mention to Sherman’s

“lengthy history of problems in the jail.” But it did not identify the alleged rape as

having any influence on the decision, and its extensive explanation clearly reveals the

real rationale for the court’s sentence.

¶17    The record shows that the court rested its sentencing decision on Sherman’s

continuous and substantial involvement in the drug trade.      It “considered numerous

pieces of evidence” regarding his history of drug dealing and the devastating community

impact of his actions.       Simmons, ¶ 12.    That evidence—not the jailhouse rape

allegation—formed the basis for the sentence. Sherman has failed to meet his burden on
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appeal of showing that the court premised its sentencing decision on “materially

inaccurate or prejudicial” information. Bauer, ¶ 22.

                                    CONCLUSION

¶18   We conclude that Sherman “is not entitled to resentencing on due process

grounds.” Phillips, ¶ 17. The judgment of the District Court is affirmed.


                                                /S/ BETH BAKER

We concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ DIRK M. SANDEFUR
/S/ JIM RICE




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