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1 SENATE BILL NO. 84
2 INTRODUCED BY L. SMITH
3 BY REQUEST OF THE CRIMINAL JUSTICE OVERSIGHT COUNCIL
4
5 A BILL FOR AN ACT ENTITLED: “AN ACT GENERALLY REVISING LAWS RELATED TO PRESENTENCE
6 INVESTIGATIONS AND REPORTS; REVISING WHEN THE COURT IS REQUIRED TO ORDER A
7 PRESENTENCE INVESTIGATION AND REPORT; AND AMENDING SECTIONS 46-12-211, 46-14-311, 46-
8 18-111, 46-18-112, AND 46-18-242, MCA.”
9
10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
11
12 Section 46-12-211, MCA, is amended to read:
13 "46-12-211.
14 (1) The prosecutor and the attorney for the defendant, or the defendant when acting pro se,
15 may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea of guilty
16 or nolo contendere to a charged offense or to a lesser or related offense, the prosecutor will do any of the
17 following:
18 (a) move for dismissal of other charges;
19 (b) agree that a specific sentence is the appropriate disposition of the case; or
20 (c) make a recommendation, or agree not to oppose the defendant's request, for a particular
21 sentence, with the understanding that the recommendation or request may not be binding upon the court.
22 (2) Subject to the provisions of subsection (5), if a plea agreement has been reached by the
23 parties, the court shall, on the record, require a disclosure of the agreement in open court or, on a showing of
24 good cause in camera, at the time that the plea is offered. If the agreement is of the type specified in subsection
25 (1)(a) or (1)(b), the court may accept or reject the agreement or may defer its decision as to the acceptance or
26 rejection until there has been an opportunity to consider a presentence report, if requested ordered by the court
27 pursuant to 46-18-111. If the agreement is of the type specified in subsection (1)(c), the court shall advise the
28 defendant that, if the court does not accept the recommendation or request, the defendant nevertheless has no ****
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1 right to withdraw the plea.
2 (3) If the court accepts a plea agreement, the court shall inform the defendant that it will embody in
3 the judgment and sentence the disposition provided for in the plea agreement.
4 (4) If the court rejects a plea agreement of the type specified in subsection (1)(a) or (1)(b), the
5 court shall, on the record, inform the parties of this fact and advise the defendant that the court is not bound by
6 the plea agreement, afford the defendant an opportunity to withdraw the plea, and advise the defendant that if
7 the defendant persists in the guilty or nolo contendere plea, the disposition of the case may be less favorable to
8 the defendant than that contemplated by the plea agreement.
9 (5) For the purposes of this section, a disclosure of the agreement through the use of two-way
10 electronic audio-video communication, allowing all of the participants to be heard in the courtroom by all
11 present and allowing the party speaking to be seen, is considered to be a disclosure in open court. Audio-video
12 communication may be used if neither party objects and the court agrees to its use and has informed the
13 defendant that the defendant has the right to object to its use. The audio-video communication must operate as
14 provided in 46-12-201."
15
16 Section 46-14-311, MCA, is amended to read:
17 "46-14-311.
18 (1) Whenever a defendant is convicted on a verdict of guilty or a plea of guilty or nolo contendere
19 and claims at the time of the omnibus hearing held pursuant to 46-13-110 or, if no omnibus hearing is held, at
20 the time of any change of plea by the defendant that at the time of the commission of the offense of which
21 convicted the defendant was suffering from a mental disease or disorder or developmental disability that
22 rendered the defendant unable to appreciate the criminality of the defendant's behavior or to conform the
23 defendant's behavior to the requirements of law, the sentencing court shall consider any relevant evidence
24 presented at the trial and may also consider the results of the presentence investigation requested required
25 pursuant to subsection (2).
26 (2) Under the circumstances referred to in subsection (1), the sentencing court may shall order a
27 presentence investigation and a report on the investigation pursuant to 46-18-111. If requested, the The
28 investigation must include a mental evaluation by a person appointed by the director of the department of public ****
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1 health and human services or the director's designee. The evaluation must include an opinion as to whether the
2 defendant suffered from a mental disease or disorder or developmental disability with the effect as described in
3 subsection (1). If the opinion concludes that the defendant did suffer from a mental disease or disorder or
4 developmental disability with the effect as described in subsection (1), the evaluation must also include a
5 recommendation as to the care, custody, and treatment needs of the defendant."
6
7 Section 46-18-111, MCA, is amended to read:
8 "46-18-111. (1) (a) (i) Upon the
9 acceptance of a plea or upon a verdict or finding of guilty to one or more felony offenses, except as provided in
10 subsection (1)(d), the district court may request and shall direct the probation and parole officer to make a
11 presentence investigation and report unless:
12 (A) an investigation and report has been provided to the court prior to the plea or the verdict or
13 finding of guilty; or
14 (B) the defendant has had a presentence investigation and report completed within 18 months of
15 the acceptance of the plea or the verdict or finding of guilty.
16 (ii) Unless additional information is required under subsection (1)(b), (1)(c), or (1)(d), or (1)(e) or
17 unless more time is required to allow for victim input, a preliminary or final presentence investigation and report,
18 if requested, must be available to the court within 30 business days of the plea or the verdict or finding of guilty.
19 (iii) If a presentence investigation report has been requested, the The district court shall consider
20 the presentence investigation report prior to sentencing.
21 (b) (i) If the defendant was convicted of an offense under 45-5-502, 45-5-503, 45-5-504, 45-5-507,
22 45-5-508, 45-5-601(3), 45-5-625, 45-5-627, 45-5-705, 45-5-706, 45-5-711, or 45-8-218 or if the defendant was
23 convicted under 46-23-507 and the offender was convicted of failure to register as a sexual offender pursuant
24 to Title 46, chapter 23, part 5, the court shall order a psychosexual evaluation of the defendant unless the
25 defendant is sentenced under 46-18-219. The evaluation must include:
26 (A) a recommendation as to treatment of the defendant in the least restrictive environment,
27 considering the risk the defendant presents to the community and the defendant's needs;
28 (B) an identification of the level of risk the defendant presents to the community using the ****
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1 standards established in 37-1-139; and
2 (C) the defendant's needs.
3 (ii) Unless a psychosexual evaluation has been provided to the court prior to the plea or the verdict
4 or finding of guilty, the evaluation must be completed by a sexual offender evaluator selected by the court and
5 who has a license endorsement as provided for in 37-1-139. The psychosexual evaluation must be made
6 available to the county attorney's office, the defense attorney, the probation and parole officer, and the
7 sentencing judge.
8 (iii) All costs related to the evaluation, including an evaluation ordered by the court as allowed in
9 subsection (1)(b)(ii), must be paid by the defendant. If the defendant is determined by the district court to be
10 indigent, all costs related to the evaluation, including an evaluation ordered by the court as allowed in
11 subsection (1)(b)(ii), are the responsibility of the district court and must be paid by the county or the state, or
12 both, under Title 3, chapter 5, part 9. The district court may order subsequent psychosexual evaluations at the
13 request of the county attorney. The requestor of any subsequent psychosexual evaluations is responsible for
14 the cost of the evaluation.
15 (c) (i) If the defendant was convicted of an offense under 45-5-212(2)(b) or (2)(c), the investigation
16 may include a mental health evaluation of the defendant and a recommendation as to treatment of the
17 defendant in the least restrictive environment, considering the risk the defendant presents to the community
18 and the defendant's needs.
19 (ii) The evaluation must be completed by a qualified psychiatrist, licensed clinical psychologist,
20 advanced practice registered nurse, licensed clinical social worker, licensed clinical professional counselor,
21 licensed marriage and family therapist, or other professional with comparable credentials acceptable to the
22 department of labor and industry. The mental health evaluation must be made available to the county attorney's
23 office, the defense attorney, the probation and parole officer, and the sentencing judge.
24 (iii) All costs related to the evaluation must be paid by the defendant. If the defendant is
25 determined by the district court to be indigent, all costs related to the evaluation are the responsibility of the
26 district court and must be paid by the county or the state, or both, under Title 3, chapter 5, part 9.
27 (d) If the defendant is convicted of a violent offense, as defined in 46-23-502, or if the defendant is
28 convicted of a crime for which a victim or entity may be entitled to restitution, and the amount of restitution is not ****
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1 contained in a plea agreement, the court shall order a presentence investigation.
2 (e)(d) When, pursuant to 46-14-311, the court has ordered a presentence investigation and a report
3 pursuant to this section, the mental evaluation must be attached to the presentence investigation report and
4 becomes part of the report. The report must be made available to persons and entities as provided in 46-18-
5 113.
6 (2) The district court may order a presentence investigation for a defendant convicted of a
7 misdemeanor only if the defendant was convicted of a misdemeanor that the state originally charged as a
8 sexual or violent offense as defined in 46-23-502.
9 (3) The defendant shall pay to the department of corrections a $50 fee at the time that the report is
10 completed, unless the court determines that the defendant is not able to pay the fee within a reasonable time.
11 The fee may be retained by the department and used to finance contracts entered into under 53-1-203(5).
12 (4) For the purposes of 46-18-112 and this section, "probation and parole officer" means:
13 (a) a probation and parole officer who is employed by the department of corrections pursuant to
14 46-23-1002; or
15 (b) an employee of the department of corrections who has received specific training or who
16 possesses specific expertise to make a presentence investigation and report but who is not required to be
17 licensed as a probation and parole officer by the public safety officer standards and training council created in
18 2-15-2029."
19
20 Section 46-18-112, MCA, is amended to read:
21 "46-18-112. (1) Whenever an investigation is
22 requested required by the court pursuant to 46-18-111, the probation and parole officer shall promptly inquire
23 into and report upon on:
24 (a) the defendant's characteristics, circumstances, needs, and potentialities, as reflected in a
25 validated risk and needs assessment;
26 (b) the defendant's criminal record and social history;
27 (c) the circumstances of the offense;
28 (d) the time of the defendant's detention for the offenses charged; ****
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1 (e) the harm caused, as a result of the offense, to the victim, the victim's immediate family, and the
2 community; and
3 (f) the victim's pecuniary loss, if any. The officer shall make a reasonable effort to confer with the
4 victim to ascertain whether the victim has sustained a pecuniary loss. If the victim is not available or declines to
5 confer, the officer shall record that information in the report.
6 (2) The following information pertaining to the defendant may also be included or considered in the
7 report:
8 (a) prior criminal history;
9 (b) probation or parole history;
10 (c) official version of the offense or offenses;
11 (d) custody status;
12 (e) pending cases or charges against the defendant;
13 (f) probation officer recommendations;
14 (g) gang affiliation;
15 (h) background and ties to the community;
16 (i) history of substance use disorder;
17 (j) physical and mental health;
18 (k) employment history and status;
19 (l) education history; and
20 (m) prescreening and placement options.
21 (3) All local and state mental and correctional institutions, courts, and law enforcement agencies
22 shall furnish, upon request of the officer preparing a presentence investigation, the defendant's criminal record
23 and other relevant information.
24 (4) The court may, in its discretion, require that the presentence investigation report include a
25 physical and mental examination or a substance use disorder assessment, or both, of the defendant.
26 (5) Upon sentencing, the court shall forward to the sheriff all information contained in the
27 presentence investigation report concerning the physical and mental health of the defendant, and the
28 information must be delivered with the defendant as required in 46-19-101." ****
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1
2 Section 46-18-242, MCA, is amended to read:
3 "46-18-242. (1) Whenever the court believes that a victim
4 may have sustained a pecuniary loss or whenever the prosecuting attorney requests, the court shall order the
5 probation officer, restitution officer, or other designated person to include in the presentence investigation and
6 report if requested ordered pursuant to 46-18-111:
7 (a) a list of the offender's assets; and
8 (b) an affidavit that specifically describes the victim's pecuniary loss and the replacement value in
9 dollars of the loss, submitted by the victim.
10 (2) When a presentence investigation and report is not requested ordered pursuant to 46-18-111,
11 the court shall accept evidence of the victim's loss at the time of sentencing."
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