State v. Soria

510 P.3d 1252 (Table)

STATE of Montana, Plaintiff and Appellee,

v.Richard James SORIA, Defendant and Appellant.

DA 20-0497

Supreme Court of Montana.

Submitted on Briefs: May 18, 2022

Decided: June 14, 2022

For Appellant: Pete Wood, Attorney at Law, Boise, Idaho

For Appellee: Austin Knudsen, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana, Scott D. Twito, Yellowstone County Attorney, Jacob Yerger, Deputy County Attorney, Billings, Montana

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 On July 20, 2018, Richard Soria unlawfully entered the home of B.H. and assaulted her. The State initially charged Soria with nine offenses. Pursuant to a plea agreement, Soria later pleaded guilty to Sexual Intercourse Without Consent (SIWC), under § 45-5-503, MCA ; Aggravated Burglary, under § 45-6-204(2), MCA ; and Partner or Family Member Assault (PFMA), under § 45-5-206(1)(c), MCA. The State dismissed the remaining charges. Soria now challenges his sentence, claiming error in the District Court's consideration at the sentencing hearing of information and evidence related to Soria's dismissed charges. Soria argues alternatively that his counsel was ineffective for failing to object to this evidence. Soria also challenges his designation as a Level III sexual offender and argues that the District Court erred in awarding restitution to the victim. We affirm.

¶3 Soria and B.H. had been in a long-term relationship and have two children together. In 2017, Soria was convicted of PFMA, and the court issued a twelve-month no-contact order to protect B.H. and her children. On July 13, 2018, while the no-contact order was in place, B.H. reported to the police that someone stole her cell phone and several other belongings from her vehicle and that she suspected Soria was responsible. Two days later, Soria confronted B.H. outside her home and asked her to explain her whereabouts. When B.H. realized Soria knew where she had been that day, she feared that Soria had been tracking or following her. Police later found B.H.’s stolen cell phone under the spare tire compartment in the trunk of her car. In the days leading up to the assault, Soria sent hostile messages to B.H. and threatened to send explicit videos of B.H. to her co-workers. B.H. later learned that Soria hacked her Facebook account and sent "revenge porn" videos to her friends and co-workers.

¶4 On July 20, 2018, B.H. returned home around midnight and noticed that the sliding glass door in her bedroom was open and that someone had stolen the clothes in her closet. B.H. placed a baseball bat in the track of the sliding glass door to keep it from opening and went to sleep. In the early morning hours, B.H. awakened to the sound of Soria pushing the sliding glass door open. Soria held B.H. down on the bed, forcibly removed her clothing, and digitally penetrated her vagina. B.H. reported that Soria pulled her clitoris repeatedly and tried to penetrate her with his penis but was unable to get an erection. B.H. attempted to call 911, but Soria took her cell phone and put it in his pocket. B.H. reported that Soria cut off patches of her hair, kicked her in the face, and strangled her until she lost consciousness. When she regained consciousness, Soria had left her house. B.H. found some clothes to put on and drove with her kids to a friend's house to call 911. When she finally reached the hospital, B.H. underwent a Sexual Assault Nurse Examiner (SANE) examination and Computed Tomography (CT) scans, and she gave a statement to the police. While B.H. was at the hospital, her friend found a GPS tracker on B.H.’s car and turned that over to the police.

¶5 As the factual basis of his guilty pleas, Soria admitted only that on July 20, 2018, he entered B.H.’s house unlawfully, digitally penetrated her without consent, hit her, and caused her reasonable apprehension of bodily injury. He did not admit to any conduct related to charges the State agreed to dismiss. Soria's Probation Officer, Heather Edwards, compiled a Presentence Investigation (PSI) report and recommended a Level II sexual offender status. The PSI set forth the entire factual basis for the State's charges against Soria, including conduct he did not admit in his guilty pleas—primarily, stealing B.H.’s belongings, pulling B.H.’s clitoris, attempting to penetrate her with his penis, and strangling her.

¶6 Soria submitted a sentencing memorandum, which included an expert report from Dr. Felice Gersh, a gynecologist and former OB/GYN professor, and a psychosexual evaluation (PSE) that Licensed Clinical Social Worker Lisa H. Hjelmstad conducted before Soria entered a guilty plea. Dr. Gersh opined that the medical evidence contradicted B.H.’s account of the assault in that it did not establish that B.H. had been strangled. Hjelmstad recommended a Level II sexual offender designation. Both Gersh and Hjelmstad had access to the complete records from the case and recounted the same factual background in their reports that was reflected in the PSI.

¶7 At the sentencing hearing, the State called Detective Denise Baum and Dr. Michael D. Sullivan, who had conducted a second PSE after Soria pleaded guilty. Detective Baum testified to her investigation of the offense, including her observations of and conversation with B.H. at the hospital, other persons she interviewed, Soria's actions after the offense, Baum's subsequent conversations with B.H. about the "revenge porn" sent from the victim's Facebook account to her employers after the offense, B.H.’s fears that Soria had not been caught yet, and B.H.’s ongoing pain in her neck from being choked. Detective Baum also testified to events on the day of Soria's arrest, including B.H. finding a note from him on her windshield at work and being terrified to go to the daycare to pick up her children without an officer escort. Finally, Detective Baum described the fruits of searching Soria's vehicle, including women's clothes with blood on them and a ledger with information confirming that it was he who had hacked B.H.’s Facebook and e-mail accounts. Soria made no objection during any of the detective's testimony. The State also admitted through Detective Baum, without objection, ten photographs of the crime scene taken during the investigation.

¶8 Dr. Sullivan testified to his evaluation of Soria and recommended a Level III sexual offender designation because Soria met the criteria for a "sexually violent predator." Sullivan explained the process he used during the evaluation and some differences that might account for the disparate recommendations: the seven-month gap between PSEs; Soria's guilty plea after the first PSE and before the second PSE; a mis-scored risk assessment factor in the first PSE; and a slight difference in scores on the "Stable-2007" scale, which measures treatment needs and likelihood of recidivism.

¶9 Soria did not call any witnesses. The court heard B.H.’s written victim impact statement, the State's and Soria's recommendations, and Soria's allocution. The court designated Soria a Level III sexual offender and sentenced him to a total of 40 years’ incarceration, none suspended.

¶10 Soria challenges the District Court's reliance on allegations and evidence that pertained to his dismissed charges. He argues that the court violated his procedural and substantive due process rights; that the State violated the plea agreement by presenting evidence of charges it had dismissed; and that his counsel was ineffective for failing to contemporaneously object to the admission of this evidence.

¶11 We review criminal sentences for legality to determine whether they are statutorily authorized. State v. Lodahl , 2021 MT 156, ¶ 11, 404 Mont. 362, 491 P.3d 661. We review de novo whether the State breached a plea agreement. State v. Lewis , 2012 MT 157, ¶ 13, 365 Mont. 431, 282 P.3d 679. Ineffective assistance of counsel claims raise mixed questions of law and fact, which we also review de novo. State v. Heavygun , 2011 MT 111, ¶ 8, 360 Mont. 413, 253 P.3d 897.

¶12 "Whenever an investigation is requested by the court, the probation and parole officer shall promptly inquire into and report upon ... the circumstances of the offense" and "the harm caused, as a result of the offense, to the victim." Section 46-18-112(1)(c), (e), MCA. The report also may include "prior criminal history" and an "official version of the offense or offenses." Section 46-18-112(2)(a), (c), MCA.

¶13 A district court "is given a wide scope of inquiry in sentencing." State v. Klippenstein , 239 Mont. 42, 45, 778 P.2d 892, 895 (1989). The rules of evidence do not apply to sentencing hearings. State v. Hill , 2009 MT 134, ¶ 20, 350 Mont. 296, 207 P.3d 307. "A trial court may consider the broad spectrum of incidents making up the background of an offender in determining the proper sentence," including the facts "leading to the ... charges" and "any evidence the court considers ... probative[.]" State v. Baldwin , 192 Mont. 521, 524, 629 P.2d 222, 224 (1981) (citing § 46-18-101, MCA ); State v. Mason , 2003 MT 371, ¶ 23, 319 Mont. 117, 82 P.3d 903 (citing State v. Collier , 277 Mont. 46, 63, 919 P.2d 376, 387 (1996) ).

¶14 Because a defendant may not be sentenced based upon misinformation, however, the court must afford the defendant an opportunity to challenge the accuracy of the information. State v. Hocevar , 2000 MT 157, ¶ 101, 300 Mont. 167, 7 P.3d 329. "When a criminal defendant contests matters in a presentence report, the defendant has an affirmative duty to present evidence establishing inaccuracies." Mason , ¶ 21.

Reliance on...