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State v. Webber

Supreme Court of Montana

September 10, 2019

STATE OF MONTANA, Plaintiff and Appellee,
v.
MICHAEL ANTHONY WEBBER, Defendant and Appellant.

          Submitted on Briefs: August 7, 2019

          APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. ADC 16-526 Honorable Gregory G. Pinski, Presiding Judge

          For Appellant: Chad Wright, Appellate Defender, Kristina L. Neal, Assistant Appellate Defender, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Roy Brown, Assistant Attorney General, Helena, Montana Joshua A. Racki, Cascade County Attorney, Ashley Wilkinson, Deputy County Attorney, Great Falls, Montana

          OPINION

          INGRID GUSTAFSON, JUSTICE

         ¶1 Michael Anthony Webber (Webber) appeals following his sentence for felony sexual intercourse without consent issued by the Eighth Judicial District Court, Cascade County, on October 13, 2017. We reverse and remand for a new sentencing hearing.

         ¶2 We restate the issue on appeal as follows:

Did the District Court abuse its discretion by not continuing the sentencing hearing?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 In 2015, Webber, who was then 30 years old, worked at a fast food restaurant in Great Falls with H.P., the 15-year-old half-sister of his ex-girlfriend. Webber and H.P. began dating and had sexual intercourse several times, beginning in November 2015, when H.P. was still 15. In August 2016, another ex-girlfriend of Webber's posted a picture of Webber and H.P. kissing on social media. H.P.'s mother took her to the Great Falls police station to report H.P.'s relationship with Webber. Great Falls police contacted Webber as part of their investigation. Webber waived his Miranda[1] rights and admitted to his relationship with H.P., to having sexual intercourse with her, and to knowing she was 15 when they first began their sexual relationship.

         ¶4 On September 28, 2016, Webber was charged with one count of felony sexual intercourse without consent. On December 1, 2016, Dr. Michael Scolatti (Dr. Scolatti), a licensed clinical psychologist and clinical member of the Association for the Treatment of Sexual Abusers (ATSA) and Montana Sex Offender Treatment Association (MSOTA), conducted an interview of Webber as part of a psychosexual evaluation at the request of Webber's counsel. On February 27, 2017, Dr. Scolatti issued his psychosexual evaluation report, which, in relevant part, recommended that Webber receive a minimal term of incarceration to allow him to complete Phase I of sex offender treatment at the Montana State Prison (MSP). On March 6, 2017, Webber and the State entered into a non-binding plea agreement in which Webber would plead guilty to the felony sexual intercourse without consent charge and could argue for any legal sentence, and the State would recommend a ten-year suspended sentence. After Webber moved to vacate the upcoming jury trial and set a change of plea hearing, the District Court issued an order vacating trial and setting a change of plea hearing for April 12, 2017.

         ¶5 On April 5, 2017, Webber filed Dr. Scolatti's psychosexual evaluation report under seal with the District Court. The District Court held a change of plea hearing on April 12, 2017, and Webber pled guilty to one count of felony sexual intercourse without consent. At the change of plea hearing, the District Court ordered Webber to undergo an updated psychosexual evaluation. The District Court ordered Dr. Scolatti to update his February 2017 psychosexual evaluation, rather than have Webber see a different doctor to get a new psychosexual evaluation. On April 19, 2017, the District Court issued an order which set Webber's sentencing hearing for May 31, 2017. On May 25, 2017, Webber filed an unopposed motion to continue the sentencing hearing because neither the updated psychosexual evaluation nor the pre-sentence investigation (PSI) would be completed in time. The District Court then issued an order re-setting the sentencing hearing for June 28, 2017. On June 21, 2017, Webber filed another unopposed motion to continue the sentencing hearing, because neither the updated psychosexual evaluation nor the PSI would be completed in time and to allow Webber to file a motion for an order forcing the State to pay for the cost of the updated psychosexual evaluation. The District Court thereafter issued orders which ordered the State to pay for the cost of the updated psychosexual evaluation and re-set the sentencing hearing for August 23, 2017. On August 14, 2017, Webber filed an unopposed motion to continue the sentencing hearing, because the attorneys and the presiding judge would be in trial on another matter on the date currently set for sentencing. The District Court then issued an order re-setting sentencing for September 20, 2017.

         ¶6 On September 6, 2017, Webber filed another unopposed motion to continue sentencing, because Dr. Scolatti would not be available on September 20, 2017, as he conducts group counseling sessions on Wednesdays and there was no qualified doctor available to cover for him on the 20th. Webber informed the District Court that Dr. Scolatti was a necessary witness for the defense at the hearing and requested that the District Court re-set the sentencing hearing for a Friday afternoon. The Cascade County Attorney's Office had no objection to Webber's motion. On September 11, 2017, the District Court issued an Order Denying Defendant's Motion to Continue Hearing, with the only apparent reason listed in the order being that it was "the Defendant's fourth motion to continue this hearing." The matter proceeded to sentencing on September 20, 2017. At the hearing, the District Court repeatedly disparaged Dr. Scolatti's evaluation, increased Webber's sexual offender tier designation from Dr. Scolatti's Tier I to a Tier II ...


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