Submitted on Briefs: September 6, 2017
FROM: District Court of the Twentieth Judicial District, In
and For the County of Lake, Cause No. DC 15-161 Honorable
Deborah Kim Christopher, Presiding Judge
Appellant: Chad Wright, Chief Appellate Defender, Alexander
H. Pyle, Assistant Appellate Defender, Helena, Montana
Appellee: Timothy C. Fox, Montana Attorney General, Tammy A.
Hinderman, Assistant Attorney General, Helena, Montana Joshua
C. Morigeau, Polson City Attorney, Polson, Montana
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
Vincent Lovato appeals his sentence from the Twentieth
Judicial District Court. He asserts that the sentence was an
abuse of discretion and that the District Court violated his
constitutional due process rights when it relied on
materially false information. We affirm.
After his April 2015 conviction in the Polson City Court for
violating the privacy in communication statute, §
45-8-213(1)(a), MCA, Lovato appealed to the District Court.
Upon trial de novo, a Lake County jury convicted Lovato of
violating the statute by sending threatening e-mails, texts,
and voicemails to his former landlord in an effort to recoup
his safety deposit. The District Court sentenced him to six
months in jail with all but thirty days suspended and fined
him $500 with all but $100 suspended, plus court costs.
Lovato had a prior disorderly conduct charge, of which the
District Court was aware, arising from an altercation with a
police officer. He had received a deferred imposition of
sentence for that offense. The deferral period had expired,
and the charge had been dismissed. The District Court
referred to the dismissed charge as a "prior"
during the sentencing hearing and as a "conviction"
in the written judgment. Lovato appeals his sentence, arguing
that the District Court abused its discretion and that the
sentence was based on misinformation in violation of his due
We review sentences of less than one year of incarceration
for legality and abuse of discretion. State v.
Hafner, 2010 MT 233, ¶ 13, 358 Mont. 137, 243 P.3d
435. "A district court abuses its discretion when it
acts 'arbitrarily without conscientious
judgment'" or when its actions exceed the bounds of
reason. State v. Green, 2012 MT 87, ¶ 9, 364
Mont. 515, 276 P.3d 929 (quoting State v. Hernandez,
2009 MT 341, ¶ 7, 353 Mont. 111, 220 P.3d 25). Due
process challenges arising from sentencing present questions
of law, which we review de novo. State v. Simmons,
2011 MT 264, ¶ 9, 362 Mont. 306, 264 P.3d 706.
A sentencing court "may consider any relevant evidence
relating to the defendant's character, history and mental
condition, and any evidence the court deems has
'probative force.'" Simmons, ¶ 11
(quoting State v. Collier, 277 Mont. 46, 63, 919
P.2d 376, 387 (1996)); see also State v. Rosling,
2008 MT 62, ¶ 72, 342 Mont. 1, 180 P.3d 1102;
Williams v. New York, 337 U.S. 241, 247, 69 S.Ct.
1079, 1083 (1949). A defendant has a due process right
"to explain, argue, and rebut any information which may
lead to a deprivation of life or liberty."
Simmons, ¶ 11. Due process guarantees against a
sentence predicated on misinformation. Simmons,
¶ 11. Misinformation will justify relief from a sentence
only if that sentence was based on "materially
false" assumptions concerning the defendant's
criminal record or on "misinformation of constitutional
magnitude." Bauer v. State, 1999 MT 185, ¶
20, 295 Mont. 306, 983 P.2d 955 (quoting Townsend v.
Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255 (1948),
and United States v. Tucker, 404 U.S. 443, 447, 92
S.Ct. 589, 592 (1972)).
Lovato argues on appeal that the District Court erroneously
believed that he had a prior conviction and relied on this
belief during sentencing. He points to the court's
referring to his dismissed charge as a "prior" and
as a "conviction." He emphasizes that the sentence
he received from the District Court on de novo appeal was
harsher than the monetary fine the City Court had imposed.
Lovato is correct that a charge dismissed pursuant to a
deferred imposition of sentence is not a conviction. See
State v. Tomaskie, 2007 MT 103, ¶ 12, 337 Mont.
130, 157 P.3d 691 ("A conviction does not occur until
sentence is imposed."); State v. Gladue, 209
Mont. 235, 240, 679 P.2d 1256, 1259 (1984) (holding that if a
"prior, expired and unrevoked deferred sentence should
[have been] dismissed pursuant to § 46-18-204, MCA, . .
. then the defendant has no 'conviction.'").
Lovato also is correct that the record establishes that his
disorderly conduct charge was dismissed after expiration of
the deferral period. Upon review of the complete sentencing
record, however, we conclude that the District Court did not
rely on materially false information in determining his
Although the District Court mischaracterized the dismissed
charge as a prior conviction, all of the factual information
the court considered during sentencing was accurate. When the
District Court raised the prior disorderly conduct charge,
the prosecutor informed the court that "[t]here was a
deferred imposition of sentence for disorderly conduct in
justice court as part of a plea agreement to wrap up three
charges;" the prosecutor elaborated that "there was
a plea agreement where he pled no contest to disorderly
conduct in exchange for the State dismissing charges for
resisting arrest and obstructing a peace officer."
Lovato's defense attorney also explained that "[t]he
only criminal history that he has is this disorderly conduct
conviction that was dismissed pursuant to a deferred
sentence." When the court later asked for clarification
on whether the current offense had occurred during the time
of the deferral for the disorderly conduct charge and whether
the disorderly conduct charge was in fact dismissed, defense
counsel explained that the deferred sentence had been
dismissed from Lovato's public records, and the
prosecutor informed her that the county was aware of the
current prosecution and had not filed any new charges. The
District Court responded, "[v]ery well, " and did
not discuss the issue any further during the hearing.
As the recitation of the record above shows, all of the
factual information presented to the District Court was
accurate, despite any mischaracterization of the dismissed
charges by the court. Further, after the discussions about
Lovato's prior criminal record, the court went on to
explain in detail the reasoning behind the sentence, which
did not include a reference to the dismissed charge. The
court focused on the facts that Lovato had had a long career
as a journalist and he knew and understood the limitations of
free speech protections; that he knew how to use the civil
legal system to resolve the dispute and that he in fact
successfully pursued a claim against his landlord in the
Small Claims Division of the Lake County Justice Court; that
the e-mails, texts, and voicemails he sent were frightening,
especially those regarding his landlord's mother-in-law,
wife, and daughter; and that Lovato did not seem to
understand that his threatening words had an impact. In
addition, the District Court referenced various instances of
Lovato's lack ...