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State v. Otto

Supreme Court of Montana

August 29, 2017

STATE OF MONTANA, Plaintiff and Appellee,
v.
ROBERT LEE OTTO, Defendant and Appellant.

          Submitted on Briefs: July 19, 2017

         District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. ADC 14-324 Honorable Greg Pinski, Presiding Judge

          For Appellant: Chad Wright, Chief Appellate Defender, Haley Connell Jackson, Assistant Appellate Defender, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana

          John Parker, Cascade County Attorney, Joshua A. Racki, Deputy Cascade County Attorney, Great Falls, Montana

          OPINION

          Jim Rice, Justice

         ¶1 Appellant, Robert Lee Otto (Otto), pled guilty to one count of Sexual Intercourse Without Consent and was sentenced by the Eighth Judicial District Court, Cascade County. He challenges his sentence on appeal, raising the following issue:

         Did the District Court violate Otto's constitutional rights by basing his sentence on his refusal to answer a question in the presentence investigative report?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶2 In June 2014, Great Falls police responded to the Rescue Mission to locate a 13-year-old girl, D.R., who had run away from her home in Shelby, Montana.[1] D.R. was found in the company of Otto, a 28-year-old male. D.R. informed police she had arrived in Great Falls the preceding week and had been with Otto, staying in his vehicle and tent. She acknowledged having sexual relations with Otto nearly every night, explaining that when she and Otto were engaged in vaginal intercourse, they usually stopped when it became too painful. After each attempt at vaginal intercourse failed, D.R. would perform oral sex on Otto until he ejaculated. When interviewed, Otto initially minimized his actions, but ultimately admitted to some intercourse and to "allow[ing] D.R. to give me oral sex."

         ¶3 Otto was initially charged with two counts of Sexual Intercourse Without Consent, and thereafter entered a nonbinding plea agreement under which he pled guilty to the count premised upon oral sex with D.R. The State agreed to dismiss the second count. The plea agreement recommended a 50-year commitment to Montana State Prison (MSP), with 35 years suspended.[2] During the sentencing hearing, the District Court stated:

The Court also considers that its sentence must protect the public. And this case is disturbing. The defendant, twice the victim's age, deceived and lured a young girl to run away from home, some 90 miles away, to engage in sexual intercourse.
. . .
This young victim . . . faces a lifetime of recovery from this assault. She's already been hospitalized for the psychological effects of what occurred. The physical and psychological harm Mr. Otto ...

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